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2004 DIGILAW 808 (PAT)

Basudeo Sah v. Shankar Thakur @ Shankar Sharma

2004-08-10

M.L.VISA

body2004
Judgment 1. This is an order on I.As. No. 4114 of 2003 and 2314 of 2004. 2. Brief facts of the case are that-respondents had filed an eviction suit No. 1 of 1987 for eviction of appellant and. others from the suit land, for recovery of arrear of rent, for declaration of their title and recovery of possession of suit land. The Court below decreed the suit declaring the title of respondents over the suit land and directing the appellant to give vacant possession of suit land to respondents but it did not grant any relief in respect of arrear of rent to respondents holding that appellant was not tenant of respondents. Against that judgment, appellant has preferred this appeal. 3. On 6.4.1990, order of ad interim stay of execution proceeding in the Court below was passed. Respondents filed an application for vacating this ad interim stay of order and after hearing both the parties, an order on 6.3.1995 was passed and appellant was directed to deposit a sum of Rs. 150/- per month in the trial Court and it was further observed that the amount so deposited shall become payable to the respondents as mesne profit in case the appeal fails and imposed condition that in case of default of payment of aforesaid amount for two consecutive months, the stay order shall stand vacated. 4. I.A. No. 4114 of 2003 has been filed by appellant under Section 151 of the Code of Civil Procedure (In short "CPC") stating therein that in depositing a sum of Rs.150/- in the Court below as per order dated 6.3.1995 (although in petition wrongly typed as 7.3.1995), appellant has to bear the burden of engaging his counsel and taking assistance of his clerk in depositing the aforesaid amount every month in Court below and although he is ready to deposit the monthly amount for more than one month in Court below in advance which will save him from the burden of engaging lawyer every month but court below is not accepting deposit by him in advance for more than one month on the ground that by order dated 6.3.1995, this Court has directed him to deposit a sum of Rs. 150/- per month. Prayer has been made for depositing the aforesaid amount in advance for more than one month and Court below be directed to accept the same. 5. 150/- per month. Prayer has been made for depositing the aforesaid amount in advance for more than one month and Court below be directed to accept the same. 5. I.A. No. 2314 of 2004 has been filed by respondents under Section 151 of C P C for enhancing the rent at Rs.300/- per month because of the rise of prices of things since the order was passed. Another prayer of respondents is that the appellant has failed to deposit the amount in Court below as per order of this Court and he deposited rent for the months of May and June, 1995 on 14.6.1995, rent of December and January on 31.1.1996, for April and May, 1996 on 30.5.1996, for June and July, 1996 on 31.7.1996, for the months of October and November, 1996 on 30.1.1997, for December, 1996 and January, 1997 on 30.1.1997 and so on and he deposited the rent from February to July, 1999 on 2.8.1999. According to respondents, because appellant has failed to comply the order dated 6.3.1995 passed by this Court in which the condition was imposed that in default in payment of aforesaid amount for two consecutive months, stay order shall stand vacated, the stay order be vacated. Further prayer is that respondents are very poor blacksmiths and illiterate persons and they are in great need of money so the rent deposited in Court be given to them. 6. In their petition under consideration respondents have described the amount which the appellant was ordered by this Court to deposit in the Court below as rent. As stated above, the claim of appellant of arrear of rent has not been allowed by the Court below because appellant has not been held a tenant of respondents. This Court also by its order dated 6.3.1995 directing the appellant to deposit the amount in Court below has clearly stated that the amount deposited by appellant shall become payable to respondents as mesne profits in case the appeal fails. In this view of the matter, there is no question of enhancement of amount which has been termed as rent by respondents arises at this stage. It is true that respondents, in their application have stated that appellant failed to deposit the amount per month as ordered by this Court and he deposited the amount from February to July, 1999 on 2.8.1999. It is true that respondents, in their application have stated that appellant failed to deposit the amount per month as ordered by this Court and he deposited the amount from February to July, 1999 on 2.8.1999. It is also true that by order dated 6.3.1995, it was made clear that in case of default in payment of aforesaid amount for two consecutive months, the stay order shall stand vacated but then amount has to be deposited in Court below and it shall become payable to respondents only when appeal fails and the amount has already been deposited in Court below. I, therefore, in such circumstances, do not find any justification for vacating the stay order particularly when appellant has expressed his difficulty in depositing the amount every month after engaging lawyer for this purpose and is ready to deposit the amount in advance for more than one month in Court below. Considering all these facts, the prayer of appellant for depositing the amount in advance in Court below is allowed and the Court below is directed to accept the amount paid in advance for any period as chosen by appellant but with a condition that after the expiry of the period for which he had already deposited that amount in advance in Court below, he must deposit the amount for current month or for any future period if he so desires without fail. 7. I.As. No. 4114 of 2003 and 2314 of 2004 stand disposed of.