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2006 DIGILAW 1612 (RAJ)

Padam Singh Gurjar v. Surendra Kumar

2006-05-11

N.K.JAIN

body2006
Judgment N.K. Jain, J.-Heard learned Counsel for the parties. 2. Admit. 3. Record of the lower Court be summoned immediately. 4. Shri V.S. Choudhary appears for the plaintiff-respondent, therefore, notice need not be issued. 5. Put up for hearing in due course. Order on prayer for stay 6. Heard learned Counsel for both the parties on the stay order. 7. Learned Counsel for the plaintiff-respondent contended that the learned lower Court has passed a decree for possession of the disputed premises in favour of the plaintiff-respondent and in case the interim stay is granted then at-least the mense profit at the prevalent market rate of monthly rent be fixed. He contends that at present the prevalent market rate of monthly rate is about Rs. 3,000/-whereas, as per the submission of the learned Counsel for the defendant-appellants, the prevalent market rate of monthly rent of the disputed premises is not more than Rs. 1,500/-. 8. The Honble Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., 2005 (1) SCC 705 , considered the jurisdiction of the appellate Court while passing order of stay under Order 41 Rule 5 of the CPC and held that the appellat Court has jurisdiction to put the applicant under Order 41 Rule 5 of the CPC on such reasonable terms as would, in its opinion, reasonable compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour, in the event of the appeal being dismissed. The Honble Apex Court in the above referred case held as under:- “19. To sum up, our conclusions are:- .(1) While passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. Such terms, needless to say, shall be reasonable. .(2) In case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in Clause (1) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rate effective for the period preceding the date of the decree. .(3) The doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date.” 9. The Honble Supreme Court again in Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562, while considering its earlier Judgment in Atma Ram Properties (P) Limiteds case (Supra), reiterated the same proposition of law. 10. This Court, while deciding application vide order dated 09.03.2006, filed by landlord-respondent under Section 151, CPC in S.B. Civil Second Appeal No. 458/2001. Madan Bansal vs. Ramnarayan Sharma, considered the similar point and observed as under:- “...........the criteria for admission of the appeal are altogether different than what adopted at the time of hearing of the appeal for final disposal. Even if the appeal is admitted by the first appellate Court being a statutory appeal or second appeal as substantial question of law arises then it does not mean that it will be allowed finally. Once appeal is admitted, then it is commonly known, that it goes for hearing in Due Course and due to long list of pending old appeals, it takes quite considerable long time in its final disposal. In such circumstances a decree-holder is not only deprived of getting the possession of the rented premises but also deprived of the monthly rent or the mesne profit or compensation for use and occupation of the rented premies as per the market value of the shop or the prevalent rent of the premises. In such circumstances a decree-holder is not only deprived of getting the possession of the rented premises but also deprived of the monthly rent or the mesne profit or compensation for use and occupation of the rented premies as per the market value of the shop or the prevalent rent of the premises. The Order 41 Rule 5 of the CPC gives jurisdiction to the appellate Court to pass interim stay staying the execution of the decree but the interim stay order is required to be passed reasonably and while doing so the interest of decree-holder is also required to be protected.” 11. After considering the rival submissions of the learned Counsel for both the parties and further that this first appeal has already been admitted by this Court, I am of the view that the execution of the impugned decree for possession is liable to be stayed during the pendency of this appeal. .12. Accordingly it is ordered that the execution of impugned decree for possession passed by the lower Court will remain stayed during the pendency of this first appeal subject to following conditions:- .(1) the defendant-appellants shall deposit/pay monthly mesne profit at the rate of Rs. 2,000/-, (Rupees two thousand only) to the plaintiff -respondent; .(2) the plaintiff -respondent will furnish the details of his bank account to the defendant-appellants and the defendant-appellants are directed to deposit the monthly mesne profit in the said Bank Account of the plaintiff-respondent; .(3) the said monthly mesne profit of the rented premises shall be deposited with effect from 01.05.2006 by 15th day of each succeeding month. .(4) the arrears of mesne profit as directed by the lower Court upto 30.04.2006 will be deposited within a period of two months from today. 13. However, it is made clear that in case the defendant-appellants fail to deposit the monthly mesne profits, as directed above, for consecutive two months, then it will be open for the plaintiff -respondent to execute the decree for eviction passed in his favour even during the pendency of this first appeal.