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2007 DIGILAW 55 (CAL)

SHARMA KAPOOR AND CO. v. DAMAYANTI MISHRA

2007-02-02

PRATAP KUMAR RAY

body2007
( 1 ) HEARD the learned Advocates appearing for the parties. ( 2 ) THE slay application, being CAN. 2437 of 2006, has been assigned before this Bench by the Hon'ble the Chief Justice by His Lordship's order dated 6th June, 2006. The stay application has been preferred by the appellant/ tenant, a partnership firm as it appears from the cause title of the Memorandum of Appeal, who has suffered judgement and decree from the first appellate court reversing the judgement and decree of the trial Court. It is an admitted fact that the tenant for a longer period of more than 40 years is occupying an area of more or less 500 Sq. ft. at a rental of Rs. 55/- per month. There is no doubt about the locational and topographical condition of the area that it is in centrally located business place at Howrah within the Howrah Municipal corporation and nearby of that there is an air conditioned market. In opposing the stay application, the landlord has filed affidavit-in-opposition as well as supplementary Affidavit disclosing the prevalent rental rate of that area. In the supplementary Affidavit affirmed on 6th June, 2006 a document has been annexed issued by the Corporation Bank wherefrom it appears that the area which is adjacent to suit premises, the rental has been fixed to the extent of rs. 12,000/- per month for an area of 150 sq. ft. ( 3 ) LEARNED Advocate appearing for the appellant submits with reference to the stay application that as there is merit in the second appeal, this Court may allow this stay application without imposing any condition of payment of rental at the market rate by applying the judicial views to this effect by the Apex Court passed in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005)1 SCC 705 ; the judgement passed in the case of Anderson Wright and Co. v. Amar Nath Roy reported in AIR 2005 SC 2457 : (2005)2 WBLR (SC) 230 and the judgement passed in the case of Achal Misra v. Rama Shanker Singh and Ors. reported in (2005) 5 SCC 531 on the ground that those judgements are distinguishable as in those cases the concerned areas are in posh areas. v. Amar Nath Roy reported in AIR 2005 SC 2457 : (2005)2 WBLR (SC) 230 and the judgement passed in the case of Achal Misra v. Rama Shanker Singh and Ors. reported in (2005) 5 SCC 531 on the ground that those judgements are distinguishable as in those cases the concerned areas are in posh areas. However, learned senior Counsel appearing for the appellant has not disputed the legal principle that once a tenant suffered a decree of eviction, his status is being changed from the status as was being enjoyed earlier under the statutory provision during pendency of the litigation. The Apex Court also dealt with that aspect and held that suffering of eviction decree by a tenant practically changes its entire nomenclature of his status so far as tenancy right is concerned and he cannot enjoy any right as statutory tenant, a right which was available to him during the litigation period after service of notice of eviction which is a condition precedent for filing a suit for eviction. That view is discussed in detail in the atma Ram Properties (P) Ltd. (supra ). It is the views of the Apex Court, as it appears from the aforesaid three judgements, that while passing any order of stay exercising the power under Order 41 Rule 5 of the Code of Civil Procedure, 1908 by the appellate Court, it is the discretion of the appellate Court to pass an appropriate order by fixing the reasonable terms as would be reasonable to compensate the decree holder due to the delay in execution of the decree. For passing such stay order, Order XLI Rule 5 also speaks of the fact that mere filing of the appeal simplicitor could not operate the stay of the proceeding under decree or order appealed against unless the appellate Court passes an order on sufficient cause about stay of the execution of such decree. The language of Order XLI Rule 5 which is required to be considered and interpreted reads such. " 5. The language of Order XLI Rule 5 which is required to be considered and interpreted reads such. " 5. Stay by Appellate Court.- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree ; but the Appellate Court may for sufficient cause order stay of execution of such decree. (2) Stay by Court which passed the decree.- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied - (a) that substantial loss may result to the party applying for stay of execution unless the order is made ; (b) that the application has been made without unreasonable delay ; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree. " ( 4 ) THE right to appeal against the judgement and decree of trial Court is a statutory right provided in the Civil Procedure Code, but the right to prefer the second appeal assailing the judgement and decree of the first appellate court is within the domain of the discretionary jurisdiction of the second appellate Court and it requires a subjective satisfaction and objective finding of the materials in terms of Section 100 of the Civil Procedure Code, 1908 that in an appeal there is involvement of a substantial question of law. When the first appeal could be preferred on taking the grounds on law and facts whereas there is a distinguishing feature in preferring the second appeal in terms of section 100 of the Code of Civil Procedure which must satisfy involvement of a substantial question of law. If we keep in mind these two basic differences about nomenclature, the views as well as structural distinction on elemental zone of the two appeals, one being regular appeal and the other being second appeal which requires presence of a substantial question of law involved, naturally the answer of granting any stay with reference to such type of appeal on an application under Order XLI Rule 5 of the Code of Civil Procedure will be very easier. ( 5 ) HAYING regard to such legal position on the issue and having regard to findings of the Apex Court, it appears that while passing any stay order under Order XLI Rule 5 of the Code of Civil Procedure, it demands that the decree holder should be compensated due to the stay of the decree which is in his favour. In the case of Atma Ram Properties (P) Ltd. (supra) the Apex court accordingly summed up the conclusions in paragraph 19 (1) to that effect, dealing with the situations of the cases as are falling under Order XLI Rule 5 of the Code of Civil Procedure which is quoted below in extenso. "19. 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. " ( 6 ) THE same view was reiterated and followed subsequently in the case of Anderson Wright and Co. (supra) in paragraph 5 which is quoted hereinbelow : " 5. Such terms, needless to say, shall be reasonable. " ( 6 ) THE same view was reiterated and followed subsequently in the case of Anderson Wright and Co. (supra) in paragraph 5 which is quoted hereinbelow : " 5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal motors (P) Ltd. (2005)1 SCC 705 , once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can put on such reasonable terms, as would in the opinion of the appellate Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. It has also been held that with effect from the date of decree of eviction, 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 on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree. " ( 7 ) SUBSEQUENTLY in Achal Misra's case (supra) also the Apex Court, a judgement of three Judges Bench, followed the judgements of the aforesaid two cases, namely, Atma Ram Properties (P) Ltd. (supra) and Anderson Wright and Co. (supra) to reach the view that the decree holder should be sufficiently compensated by directing payments of rental in such a manner as may be equivalent to market rent as prevalent. Hence the contention of Mr. (supra) to reach the view that the decree holder should be sufficiently compensated by directing payments of rental in such a manner as may be equivalent to market rent as prevalent. Hence the contention of Mr. Sanyal, learned senior Advocate that the judgements have distinguishing features in view of the locational position of the suit premises, though in fact it is not in the present case, as the area in question is located in a place which is a central place of different businesses, on ascertaining the fact that those judgements were passed in respect of the posh areas and as such it is not applicable in general to all types of cases, has no legal basis and such submission stands rejected in view of the fact that ratio decidendi of the aforesaid three judgements on variant facts as considered practically has converged to a single ratio decidendi that the Court must take care of the suffering of decree holder, while passing the stay of execution of such decree, to compensate him sufficiently. That is the basic ratio decidendi of the case. This Court is also not unmindful of the fact that the ratio decidendi of a case is to be construed and considered in the angle of factual matrix and the question of law considered therein. Having regard to such settled principle of law to identify and test the ratio decidendi, this Court is of the view that the factual matrix considered in the aforesaid three cases by the Apex Court is the eviction decree passed by the appropriate court of law and thereby the tenant had lost its right as statutory tenant vis-avis the injury as to be suffered by the decree holder in the event such execution of the decree is passed. Those are basic facts which have been considered and looked into and it has been applied with reference to passing stay order under Order XLI Rule 5 of the Code of Civil Procedure. In the instant case the factual matrix are also identical. Those are basic facts which have been considered and looked into and it has been applied with reference to passing stay order under Order XLI Rule 5 of the Code of Civil Procedure. In the instant case the factual matrix are also identical. Here the appellant has suffered the decree of eviction by the first appellate Court and now he has no status as statutory tenant as was being enjoyed so long during pendency of litigation and the contention of the landlord decree holderthat he would suffer injury in the event such execution proceeding is granted, may be whether it is a posh area or urban area or semi urban area those never were the factors which prompted the Apex Court the settle law in that field about consideration of the stay application under Order XLI Rule 5 of the Code of Civil Procedure but the material factors'which were considered for crystalisation of a finding of the Apex Court that a judgement debtor who suffered the decree of eviction whether could be allowed a blanket order of stay of execution of decree or stay order should be passed on the condition of payments of market rent to compensate the landlord decree holder during pendency of such proceeding before the Court. Considering all those aspects, this Court is accordingly holding those findings as ratio decidendi and a binding precedent which has applicability in the present case. The said view is taken by this Court following the test of ratio decidendi of the judgement to identify its value as precedent as passed by the Constitution Bench in State of Punjabv. Balde v Singh reported in (1999)6 scc 172 wherein the Apex Court held that "a decision is an authority for what it decides and not that everything stated therein constitute a precedent. The courts are obliged to employ the instant doctrine in the use of precedent bearing it in mind that a decision of the Court takes it colour from the questions involved in the case in which it was rendered. " ( 8 ) FROM the aforesaid judgement, as referred to, it appears that the question involved therein is whether stay order should be passed in favour of a judgement debtor of a eviction decree unconditionally or a decree holder should be compensated directing payment of market rent during pendency of second appeal. Those relevant facts are present in this case. Those relevant facts are present in this case. Accordingly in view of that Constitution Bench judgement, the aforesaid judgements of the apex Court are a binding precedent before this Court. ( 9 ) NOW on the factual matrix about the market rental as to be passed in the case of a compensation during pendency of hearing of the appeal which admittedly was admitted under Order XLI Rule 11 of the Code of Civil Procedure by a Division Bench of this Court to be considered. Before this Court a document has been filed in the form of an affidavit disclosing the material rate of rental in the area in question. At present the appellant is enjoying a rental which is less than 10 paise per sq. ft. whereas from the documents as submitted by the respondent landlord it appears that in that area for 150 sq. ft. rental premises, rent has been fixed at Rs. 12,000/- per month, that is, Rs. 80/- per sq. ft. The appellant herein is running a Lethe machine for repairing job, as submitted. In the Affidavit-in-opposition the respondent landlord also has referred to the details of rental of different premises located at proximity of suit premises in question to prove rental range within of Rs. 55/- to Rs. 100/- per sq. ft. as the case may be. ( 10 ) HAVING regard to the documents as placed by the respective parties about prevalent rental and having regard to the locational position of the area which is a prime business place at Howrah, this Court is of the view that a stay could be granted only on the condition of payments of compensation/mesne profits at the rate of Rs. 40/- per sq. ft. payable with effect from the judgement and decree of the first appellate Court. Considering this aspect, it is ordered that there will be a stay of the impugned judgement and decree under appeal subject to the payment of compensation/mesne profits at the rate of Rs. 40/- per sq. ft. in respect of the area which is 500 sq. ft. which comes to the extent of rs. 20,000/- per month with effect from the date of passing of the judgement and decree of the first Appellate Court, that is, 14. 2. 2006. 40/- per sq. ft. in respect of the area which is 500 sq. ft. which comes to the extent of rs. 20,000/- per month with effect from the date of passing of the judgement and decree of the first Appellate Court, that is, 14. 2. 2006. ( 11 ) THE arrear compensation/mesne profit till December, 2006 from the judgement and decree of the first appellate Court could be paid by ten instalments along with payment of current mesne profits/compensation at the rate of Rs. 20,000/- per month and payment of January, 2007 should be paid by 15th February, 2007 and the payment from February, 2007 onwards could be paid by the next succeeding month. It is made clear that in default of making payment as per aforesaid direction, stay will be vacated automatically. The stay application is thus disposed of.