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2009 DIGILAW 504 (CAL)

Pratul Saha v. Purnabrata Dutta

2009-07-14

TAPAN KUMAR DUTT

body2009
Judgment :- (1) Both the revisionsl applications have been heard analogously when the learned Counsels for the respective parties made their submissions. The relevant facts with regard to the two cases are set out as hereunder. Re: CO. No. 2939 of 2008 (2) The petitioners brought a suit for eviction in the year 1980 against the opposite party in respect of the entire first floor of premises No. 2A, Dover Road, P.S. Ballygunge, Calcutta - 700 019 consisting of three bed rooms, one drawing room, one kitchen, one store, one verandah. The said suit was decreed on contest on 31st January, 2008 upon the finding, inter alia, that the petitioners have proved without any doubt that the petitioners requirement is bona fide and that the opposite party has been enjoying the property for long 28 years depriving the landlords from using the same which has caused tremendous hardship to the petitioners who have been forced to take shelter in rented accommodation. Challenging such judgment and decree the opposite party filed an appeal on 28.04.08 being Title Appeal No. 110 of 2008 in the Court of the learned District Judge at Alipore and in such appeal the opposite party filed an application for stay of the operation of judgment and decree passed by the learned Trial Court. It appears that the contractual rate of rent was Rs.300/- per month according to English Calendar in respect of the said suit premises. At the hearing of the application for stay, it appears, that submissions were made on behalf of the petitioners that the opposite party should pay a certain amount, after passing of the Trial Courts decree, month by month as a condition precedent to an order of stay. The petitioners had filed a written objection to the said application for stay and prayed inter alia that the opposite party should be directed to pay or, deposit an amount calculated at the rate of Rs. 55/- per sq, ft. for the area of 4164 sq. ft with effect from 31.01.08 (the date of the Trial Courts decree) month by month as a condition precedent to an order of stay. However, from paragraph 6 of the written objection it appears that the upper floor of the said premises occupied by the appellant in Title Appeal No. 110 of 2008 is about 2464 sq. ft. ft with effect from 31.01.08 (the date of the Trial Courts decree) month by month as a condition precedent to an order of stay. However, from paragraph 6 of the written objection it appears that the upper floor of the said premises occupied by the appellant in Title Appeal No. 110 of 2008 is about 2464 sq. ft. In paragraph 1 of the revisional application also it has been stated that the suit property pertaining to this revisional application is the entire upper floor, namely, the first floor of the said premises consisting of three bed rooms, one drawing room, one kitchen, one store and one verandah admeasuring a building area of about 2464 sq. ft. Therefore, taking the lesser figure into account, the suit property pertaining to the instant revisional, application can be taken to be 2464 sq.ft. for the purpose of disposal of the present revisional application. The learned Lower Appellate Court being the 16th Court of Additional District Judge, Alipore by the impugned order dated 07.07.2008 directed that the judgment and decree passed by the learned Trial Court will be stayed on the condition that the opposite party deposits Rs. 1200/-per month as occupational charges in respect of the suit premises before the learned Trial Court in the name of the petitioners by 15th of each month fill the disposal of the appeal. The petitioners have challenged such order dated 07.07.2008 in the instant revisional application and it has been submitted on behalf of the petitioners that the occupational charges fixed by the learned Lower Appellate Court is extremely low and the said occupational charges as a condition precedent for granting stay should have been very much higher considering the market conditions of the area where the suit property is situated. Re: CO. No. 2940 of 2008 (3) A similar suit for eviction, as indicated above, was brought by the petitioners against the opposite parties in respect of the suit property being the entire ground floor of premises No. 2A, Dover Road, P.S. Bally gunge, Calcutta -700 019 consisting of three bed rooms, one drawing room, one kitchen, one store, one garage, servants quarter etc. The said suit was also decreed on contest on similar observations of the learned Trial Court, as already mentioned above. In this case, the contractual rate of rent was Rs. 250/- per month. The said suit was also decreed on contest on similar observations of the learned Trial Court, as already mentioned above. In this case, the contractual rate of rent was Rs. 250/- per month. The opposite parties preferred an appeal against the judgment and decree passed by the learned Trial Court being Title Appeal No. 111 of 2008 in the Court of the learned District Judge at Alipore and in such appeal the opposite parties filed an application for stay of the operation of judgment and decree passed by the learned Trial Court. The petitioners filed a written objection and also prayed that the opposite parties should be directed to pay or deposit an amount calculated at the rate of Rs. 55/-per sq. ft. for the area of 4164 sq. ft. with effect from 31.01.2008 (the date of the eviction decree) month by month as a condition precedent to an order of stay as prayed for by the opposite parties. The learned Lower Appellate Court being the Court of the learned 16th Additional District Judge, Alipore by the impugned order dated 07.07.2008 directed that the Trial Courts judgment and decree will be stayed on the condition that the opposite parties will deposit Rs. 1200/-per month as occupational charges in respect of the suit premises before the learned Trial Court in the name of the petitioners by the 15th of each month till the disposal of the appeal. The petitioners have challenged such impugned order in the present revisional application taking a similar stand as already indicated above. (4) The two revisional applications have been heard analogously as common questions of law and facts are involved and the two revisional applications arise out of similar orders passed in two different Title Appeals and the parties are practically the same. The petitioners in both the revisional applications are the same. The sole opposite party in CO. No. 2939 of 2008 is the opposite party No. 1 in CO. No. 2940 of 2008. There are two other opposite parties in CO. No. 2940 of 2008. The petitioners in both the revisional applications are the same. The sole opposite party in CO. No. 2939 of 2008 is the opposite party No. 1 in CO. No. 2940 of 2008. There are two other opposite parties in CO. No. 2940 of 2008. (5) The learned Counsel appearing on behalf of the petitioners submitted that the learned Court of Appeal below failed to consider the fact that after the passing of the decree for eviction by the learned Trial Court the opposite parties became trespassers in the suit properties comprised in the said suit holding No. 2A Dover Road, P.S. Ballygunge, Calcutta which is comprised of an area of about 23.82 cottahs. His further submission was that the topography of the area in question, the valuation of the lands and buildings comprised in the said suit holding by way of a valuation report by a Chattered Engineer and Government approved Valuer and also copies of lease deeds in respect of flats in different premises situated near the suit holding were placed before the learned Court of Appeal below to enable the said Court to come to a conclusion as to what should be the amount of monthly occupation charges to be paid or deposited by the opposite parties in respect of the respective suit premises as a condition precedent for grant of stay in the Title Appeals as prayed for by the opposite parties, but the learned Lower Appellate Court did not consider any of such documents and arbitrarily raised the figure from Rs. 300/- to Rs. 1200/-as monthly occupation charges to be deposited by the opposite parties. According to the said learned Counsel the amount of Rs. 1200/- per month as occupation charges is absurdly low considering the market rate of rent applicable to the suit holding and as such he submitted that the monthly occupation charges fixed by the learned Lower Appellate Court should be increased many many times to make it reasonable and in commensurate with the present market rate about which an idea can be made on perusal of the documents indicated above. He has referred to the relevant annexures made to the revisional application in this regard. He has referred to the relevant annexures made to the revisional application in this regard. From the valuation report, mentioned above, it appears that the land covering the said suit holding is about 23.82 cottahs and the structures comprise a two storied main building, one two storied annexe building with garages on the ground floor and servants quarter on the first floor and one single storied outhouse with brick masonry structure. The said Chartered Engineer and Government approved Valuer, Mr. Gautam Ganguli, valued the property at about Rs. 5,45,89,000/-. According to the said Valuer the rent of the said suit holding should be around Rs. 3,64,000/-per month. The petitioner has also annexed the copy of the information obtained from the Office of the Registrar of Assurances, Kolkata dated 07.03.2008 (annexed to the revisional application) which discloses that the market value for Dover Road land is Rs. 18,72,000/- per cottah and for flat it is Rs. 2,691/- per sq. ft. The petitioners have further stated that the Flat No. 7B (on the 7th floor) at 34, Ballygunge Circular Road, Calcutta comprising of 2456 sq. ft. area was let out in November, 2002 at the rental value of Rs. 55,000/- per month i.e. Rs.22.39 per sq. ft. per month. The Flat No. 7F (on the 7thfloor) at the said premises No. 34, Ballygunge Circular Road, Calcutta comprising of 2537 sq. ft. area was let out in February, 2006 at the rental value of Rs. 60,000/-per month i.e. Rs. 23.64 per sq. ft. per month. The petitioners further case was that the Flat No. 5B (on the 5th Floor) at the premises No. 23B, Ballygunge Circular Road, Calcutta comprising of 2425 sq. ft. area was let out at Rs. 60,000/- per month @ 24.74 per sq. ft. per month in December, 2006. The petitioners case is that the said Premises No. 34, Ballygunge Circular Road is about 200 meters away from the suit holding and the other Premises No. 23B, Ballygunge Circular Road is about 300 meters away from the suit holding. ft. area was let out at Rs. 60,000/- per month @ 24.74 per sq. ft. per month in December, 2006. The petitioners case is that the said Premises No. 34, Ballygunge Circular Road is about 200 meters away from the suit holding and the other Premises No. 23B, Ballygunge Circular Road is about 300 meters away from the suit holding. The learned Counsel on behalf of the petitioners submitted that all the relevant documents were placed before the learned Lower Appellate Court to have a fair idea about the market rate of rent in respect of the suit premises in both the suits but the learned Lower Appellate Court ignored all such documents and came to his own absurd and arbitrary finding. Copies of the relevant lease deeds have also been annexed to the revisional application in support of the petitioners case. The petitioners learned Counsel submitted that the petitioners are being prevented from enjoying the fruit of the decrees obtained by them in view of the pendency of the Title Appeal and as such the petitioners should be properly compensated. The petitioners learned Counsel further submitted that since the opposite parties have become trespassers after the decrees for eviction have been passed against them, the petitioners are entitled to mesne profits from the date of the decree of eviction and the petitioners are entitled under the law to bring appropriate proceedings in respect of such mesne profits as contemplated under the relevant provisions of law. He has further submitted that the imposition of conditions for grant of stay in the Title Appeal as prayed for by the opposite parties cannot be dependent on the pendency, or otherwise, of any proceeding for mesne profits. According to him, the learned Lower Appellate Court is free to impose proper and reasonable conditions as condition precedent for grant of stay by taking into consideration the current market rate of rent in respect of the suit premises concerned irrespective of the fact whether or not any proceeding for grant of mesne profits is pending. According to him, the learned Lower Appellate Court is free to impose proper and reasonable conditions as condition precedent for grant of stay by taking into consideration the current market rate of rent in respect of the suit premises concerned irrespective of the fact whether or not any proceeding for grant of mesne profits is pending. He has referred to the provisions of Order 41 Rule 5, C.P.C. (6) He has referred to a decision reported at (2005)1 SCC 705 [Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.] in support of his submission that the learned Lower Appellate Court did have the jurisdiction to put the opposite parties on proper and reasonable terms as would have reasonably compensated the petitioners for the loss occasioned by delaying the execution of the decree by virtue of order of stay, in case the appeals filed by the opposite parties are dismissed. (7) In the said reported case the appellant in the said case initiated eviction proceedings of the respondent under the Delhi Rent Control Act, 1958 on the ground of sub-letting which resulted in an order of eviction. The respondent in that case preferred an appeal and the Rent Control Tribunal concerned stayed the order of eviction but subject to the condition that the said respondent shall deposit in Court Rs. 15,000 per month, in addition to the contractual rent (Rs. 371.90 per month in respect of 1000 sq. ft. on the commercial premises) which may be paid directly to the said appellant. A plea was raised in the said case that the said respondent could not have been directed during the pendency of the proceedings to pay or tender to the landlord or deposit in the Court any amount in excess of the contractual rate of rent. It appears that the Honble High Court concerned on an application under Article 227 of the Constitution of India had set aside the said condition imposed by the Tribunal which was challenged before the Honble Supreme Court by the landlord (appellants) in that case. In paragraph 8 of the said reports the Honble Supreme Court was pleased to observe as follows :- "8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. In paragraph 8 of the said reports the Honble Supreme Court was pleased to observe as follows :- "8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the Court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration : why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted." (8) In paragraph 16 of the said reports the Honble Supreme Court was pleased to observe as follows :- "16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy." (9) In paragraph 18 and 19 of the said reports the Honble Supreme Court was pleased to observe as follows :- "78, That apart, it is to be noted that the appellate Court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate Court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons and Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property. 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 (I) 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 rent effective for the period proceeding 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." (10) In paragraph 20 of the said reports the Honble Supreme Court was pleased to observe as follows :- "20. In the case at hand, It has to be borne In mind that the tenant has been paying Rs. 371.90 p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq ft, have been recently let out on rent at the rate of Rs. 3,50,000 per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs. 15,000 per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra car to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The Tribunal took extra car to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the respondent tenant before us, nor was it in the High Court, that the amount of Rs. 15,000 assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side." (11) The said learned Counsel for the petitioners cited another decision reported at (2005)6 Supreme Court Cases 489 : (2005)2 WBLR (SC) 230 (Anderson Wright and Co. v. Amar Nath Roy and others). In the said case the tenancy concerned was created in the year 1939 at a monthly rent of Rs. 853.87 paisa per month in respect of an area of about 5678 sq. ft. to 6000 sq. ft.. In the said case also the question arose as to what would be the condition precedent for grant of stay of an eviction decree. In the said reported case also the landlord claimed that a direction should be given to the judgment-debtor/tenant to pay an amount of Rs. 1,80,000/-per month since according to the market rate the suit premises in that case could fetch at that time Rs. 30 per sq, ft. as rent. The appellants in that case had argued that they could not have been held liable to pay anything more than the standard rent of the premises, in spite of the decree for eviction having been passed as the same is sub-judice, but the Honble Supreme Court held that such submission needs a summary dismissal in view of the judgment passed in Atma Ram Properties case (supra). The Honble Supreme Court was pleased to direct in that case that with effect from the date of decree of eviction the appellants in that case (judgment-debtor/tenant) shall be liable to pay, or deposit for payment, to the respondent landlord, an amount calculated at the rate of Rs. 15 per sq. ft, for an area of 5678 sq. ft., the area which was, according to the appellants, in their possession. It further appears that the Honble Supreme Court was pleased to grant liberty to the respondent/landlords in that case to move an application under Order 20 Rule 12 of the Code of Civil Procedure or to pursue such remedy as may be available to them under the law for determination and recovery of the mesne profits which they would have been entitled to recover from the appellants (judgment-debtor/tenants) in terms of the order contained in the said reports. (12) The said learned Counsel for the petitioners submitted that the eviction suits were filed in the year 1980 and in paragraph 6 of the revisional application it has been stated that the opposite parties have been moving the higher Courts on every single occasion and by the lapse of time both the parents of the petitioners passed away and since the starting of the original eviction suit, 20 years have already lapsed. (13) According to the said learned Counsel the impugned order should be set aside and the opposite parties should be directed to pay and/or deposit the occupation charges in respect of the respective suit premises according to the current market rate of rent as condition precedent for grant of stay of operation of the judgment and decree of eviction. (14) The learned Counsel appearing on behalf of the opposite parties submitted that the learned Lower Appellate Court was right in not considering the documents submitted by the petitioners since no reliance can be placed on such documents. Such argument on behalf of the opposite parties cannot be accepted particularly in view of the fact that the opposite parties did not bring any document on record to show as to what could be the present market rate of rent of any property in the vicinity of the suit premises. Such argument on behalf of the opposite parties cannot be accepted particularly in view of the fact that the opposite parties did not bring any document on record to show as to what could be the present market rate of rent of any property in the vicinity of the suit premises. If the opposite parties could place on record any such documents the learned Lower Appellate Court could have, in such circumstances, looked into the documents so produced by the opposite parties for the purpose of exercising its discretion in the matter. The learned Lower Appellate Court was not making any enquiry and/or investigation to find out the mesne profits for which there are the relevant provisions in the Civil Procedure Code. The learned Lower Appellate Court was only considering as to what should be a reasonable condition precedent for granting an order of stay. (15) The next submission that was made by the learned Counsel for the opposite parties is that since no proceeding is pending for ascertaining mesne profits the learned Lower Appellate Court could not have directed the judgment-debtor/opposite parties to pay any amount higher than the contractual rent as a condition precedent for grant of stay. He submitted that the learned trial Court had in fact refused to grant mesne profits to the petitioners. (16) The said learned Counsel cited a decision reported at 1990 (Supp) Supreme Court Cases 727 (Wander Ltd. and Another v. Antox India P. Ltd) and referred to paragraph 14 of the said reports where the Honble Supreme Court was pleased to observe as follows :- "14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate Court will not interfere with the exercise of discretion of the Court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the Court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the materials and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. An appeal against exercise of discretion is said to be an appeal on principle. Appellate Court will not reassess the materials and seek to reach a conclusion different from the one reached by the Court below if the one reached by that Court was reasonably possible on the material. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal Solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial Courts exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : (SCR 721) These principles are well established, but as has been observed by Viscount Simon in Charles Osenton and Co. v. Jhanaton ....the law as to the reversal by a Court of appeal of an order made by a Judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case." (17) Thus from reading the said paragraph 14 it will appear that the Honble Supreme Court was pleased to observe that if a discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the Appellate Court would have taken a different view may not justify interference with the trial Courts exercise of discretion. In the instant case we find that the learned Lower Appellate Court did not consider at all the documents/papers which were filed on behalf of the petitioners in support of their case and the figure arrived at by the learned Lower Appellate Court while dealing with the question of condition precedent for grant of stay is wholly arbitrary. Considering the extent of the suit premises it will be absurd to suggest that the suit property in either of the tenancies will fetch a monthly rent of Rs. 1200/-in the present day market conditions. Property prices in general have increased tremendously and it is common knowledge that Dover Road in Ballygunge area in Kolkata is one of the posh areas in Kolkata. 1200/-in the present day market conditions. Property prices in general have increased tremendously and it is common knowledge that Dover Road in Ballygunge area in Kolkata is one of the posh areas in Kolkata. Thus the aforesaid reported decision cannot be of any assistance to the opposite parties. (18) The next decision cited on behalf of the opposite parties is the one reported at AIR 2003 Supreme Court 1561 (Sadhana Lodh v. National Insurance Co. Ltd. and Another). Reference was made to paragraph 7 of the said reports wherein the Honble Supreme Court was pleased to observe to the effect that the jurisdiction of the High Court under Article 227 of the Constitution is only for the purpose to see whether the learned Court below has proceeded within its parameters and not to correct an error apparent on the face of the record, much less an error of law. There cannot be any dispute with regard to such proposition of law. But in the instant case the learned Lower Appellate Court, without considering any of the documents/papers submitted by the petitioners, has passed the impugned order and came to an arbitrary conclusion that Rs.1200/-per month should be directed to be deposited by the opposite parties every month as a condition precedent for grant of stay. The impugned order suffers from a non-application of mind. The fixation of the amount of deposit per month as a condition precedent for grant of stay suffers from arbitrariness. In such circumstances, the aforesaid reported case cannot be of any assistance to the opposite parties. It cannot be said, in such circumstances, that the learned Lower Appellate Court has proceeded in the matter "within its parameters". (19) The next submission made by the learned Counsel for the opposite parties was that since no proceeding is pending for ascertaining mesne profits and since no such proceeding has been, as yet, initiated by the petitioners, the learned Lower Appellate Court could not have directed the opposite parties to pay any amount higher than the amount of contractual rent as a condition precedent for grant of stay. It has to be borne in mind that the opposite parties have not challenged the impugned order even though by the impugned order the learned Lower Appellate Court has directed the opposite parties to pay an amount higher than the amount of contractual rent. It has to be borne in mind that the opposite parties have not challenged the impugned order even though by the impugned order the learned Lower Appellate Court has directed the opposite parties to pay an amount higher than the amount of contractual rent. It is difficult to appreciate such argument of the learned Counsel for the opposite parties. In Atma Rams case (supra) the Honble Supreme Court has laid down that in case of premises governed by rent control legislation, the decree of eviction on being affirmed would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. Applying such legal principle in the facts of the instant case the tenancies of the opposite parties stood terminated with effect from the date of the decree passed by the learned trial Court and the petitioners have every right under the Code of Civil Procedure to bring appropriate proceedings for grant of mesne profits under the relevant provisions of the said Code. But the learned Lower Appellate Court was really exercising a jurisdiction under Order 41 Rule 5, Civil Procedure Code and under the law there is no bar to impose conditions for grant of any stay even if no proceeding is pending for ascertainment of mesne profits as envisaged in Order 20 Rule 12 of the Civil Procedure Code. The learned Counsel for the opposite parties could not show any provision of law in support of his aforesaid submission that in the absence of pendency of proceedings for mesne profits the learned Lower Appellate Court could not have directed the opposite parties to deposit in Court any amount higher than the amount of contractual rent as a condition for stay. Paragraph 19 of Atma Rams case (supra) has already been quoted above and the said reported case is very much applicable to the facts and circumstances of the present case. In such circumstances, this Court does not find any substance in the aforesaid argument made on behalf of the opposite parties. This Court holds that the learned Lower Appellate Court was absolutely free to impose condition precedent for grant of stay as prayed for by the opposite parties in their application for stay. In such circumstances, this Court does not find any substance in the aforesaid argument made on behalf of the opposite parties. This Court holds that the learned Lower Appellate Court was absolutely free to impose condition precedent for grant of stay as prayed for by the opposite parties in their application for stay. Now the question is what should be a reasonable condition precedent. (20) From the discussions made above it can be seen that a 7th floor- flat at a premises which is only 200 meters away from the suit premises could be let out at Rs. 23.64 per sq. ft. per month in the year 2006. A 5th floor-flat at about 300 meters away from the suit premises could be let out at Rs.24.74 per sq. ft. per month in the year 2006. Of course, the aforesaid Valuer Mr. Gautam Ganguli who, it appears, is also an empanelled Registered Valuer of the Calcutta High Court (Page 239 of the Petition in CO. No. 2939 of 2008 may be seen) ascertained with the fair rent of 2A, Dover Road, Kolkata at Rs. 3,64,000/- per month. If one takes a very moderate view of the rate of rent at which the premises in the two suits could be let out, the average rate of rent in respect of the suit holding should not be less than Rs. 20 per sq. ft. per month. Of course, such assessment of the rate of rent is only for the purpose of disposal of the present application. (21) Since the area of the suit property involved in C.O. No. 2939 of 2008 is about 2464 sq. ft., the amount assessed on account of occupation charges to be deposited by the opposite party (in C.O. No. 2939 of 2008) in the Trial Court as a condition precedent for an order of stay of operation of the judgment and decree passed by the learned trial Court, is Rs. 49,280/- (2464 x Rs.20/-) per month. Similarly, since the suit property in CO. No. 2940 of 2008 covers an area of about 4164 sq. ft., the occupation charges is assessed at Rs. 83,280/-(4164 x Rs. 20/-) per month. 49,280/- (2464 x Rs.20/-) per month. Similarly, since the suit property in CO. No. 2940 of 2008 covers an area of about 4164 sq. ft., the occupation charges is assessed at Rs. 83,280/-(4164 x Rs. 20/-) per month. (22) The two revisional applications are disposed of as follows :-C.O. No. 2939 of 2008 is disposed of by setting aside the impugned order and by directing that till the disposal of the aforesaid T.A. No. 110 of 2008 there shall be stay of operation of the judgment and decree dated 31.01.2008 passed by the learned Civil Judge (Senior Division), 2nd Court at Alipore in T.S. No. 43 of 1980 on condition that the opposite party shall go on depositing in the trial Court month by month on or before the last day of each month for which it becomes due a sum of Rs. 49,280. The first of such deposits shall be made on or before last day of July, 2009 for the month of July, 2009, The opposite party shall go on depositing such amount every month, as aforesaid, till the disposal of the aforesaid T.A. No. 110 of 2008 pending in the Court of the learned 16th Additional District Judge, Alipore. In default of any of such deposits the order of stay shall stand vacated and the petitioners will be entitled to execute the decree immediately. If such deposits are made by the opposite party the petitioners will be entitled to withdraw an amount equivalent to the contractual rent every month which was Rs. 300/-per month, and the balance amount shall remain in deposit and shall be subject to the result of the said T.A. No. 110 of 2008 and orders that may be passed in such appeal at the time of its disposal by the Learned Lower Appellate Court. (23) CO. No. 2940 of 2008 is disposed of by setting aside the impugned order and by directing that till the disposal of the aforesaid T.A. No. 111 of 2008 there shall be stay of operation of the judgment and decree dated 31.08.2008 passed by the learned Civil Judge (Senior Division), 2nd Court at Aiipore in .T.S. No. 70 of 1980 on condition that the opposite parties shall go on depositing in the trial Court month by month on or before the last day of each month for which it fails due a sum of Rs. 83,280/-. 83,280/-. The first of such deposits shall be made on or before the last day of July, 2009 for the month of July, 2009. The opposite parties shall go on depositing such amount every month, as aforesaid, till the disposal of the aforesaid T.A. No. 111 of 2008 pending in the Court of the learned 16th Additional District Judge, Alipore. In default of any of such deposits the order of stay shall stand vacated and the petitioner shall be entitled to execute the decree immediately. If such deposits are made by the opposite parties the petitioners will be entitled to withdraw an amount equivalent to the contractual amount of rent every month, which was Rs. 250/- per month, and the balance amount shall remain in deposit and such deposits shall be subject to the result of the said T.A. No. 111 of 2008 and the orders that may be passed in such appeal at the time of disposal of the appeal by the learned Lower Appellate Court. (24) Thus, both the revisional applications being C.O. No. 2939 of. 2008 and C.O. No. 2940 of 2008 are disposed of. (25) There will, however, be no order as to costs. LATER : After the aforesaid order was passed, the learned Counsel on behalf of the opposite party/opposite parties prayed for stay of operation of the aforesaid order. Having considered the submissions made by the learned Counsels for the respective parties, the prayer for stay is refused.