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2011 DIGILAW 1355 (RAJ)

Dilip Kumar & Ashok Kumar v. Banwari Lal S/o Lalli Ram

2011-07-12

MOHAMMAD RAFIQ

body2011
JUDGMENT : Mohammad Rafiq, J. 1. Heard learned counsel for parties on stay application. 2. Learned counsel for defendant-appellants submits that second appeal has already been admitted, therefore, judgment & decree of eviction passed by both the courts below be stayed during its pendency. However, he does not dispute that this court can award mesne profit under Order 41 Rule 5 read with Section 151 of the Civil Procedure Code in view of decision of Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., 2005 (1) CCC 454 (SC) : 2005 (1) ACJ 426 (SC) : 2005 (1) SCC 705 , which has further been followed in the case of Anderson Wright & Company v. Amar Nath Roy, 2005 (1) ACJ 702 (SC) : 2005 (2) CCC 318 (SC) : 2005 DNJ (SC) 562 and by the three-Judges Bench of the Hon'ble Apex Court in the case of Achal Misra v. Rama Shanker Singh & Ors., 2005 (5) SCC 531 and Crompton Greaves Limited v. State of Maharashtra, 2005 (11) SCC 547 , which, according to him, could be anywhere between Rs. 1500/- to Rs. 2500/-. 3. Learned counsel for plaintiff-respondent submits that since both the courts below have decreed the suit of plaintiff-respondent on the ground of reasonable and bona fide necessity, therefore, when second appeal is admitted, it may not be necessary to stay execution of such judgment and decree; he, therefore, submits that prayer for interim relief be declined. In the alternative, his prayer is that this court has been taking into consideration the factum of length of tenancy which in present case is more than 39 years old and premise that has been rented out to the defendant-appellants is in the size of 10' x 13' and situated in the heart of the city at Khajanewalon-ka-Rasta, Jaipur and therefore, its present rental value could not be less than Rs. 20,000/- per month. 4. Admittedly, the suit shop was let out to defendant-appellants in the year 1972 at the rate of Rs. 140/- per month and defendant-appellants have been paying a meagre amount of rent although the suit shop is situated in the heart of the city at Khajanewalon- ka-Rasta, Jaipur, and not only the land prices have appreciated tremendously but also rental value of the suit shop has also gone very high. 140/- per month and defendant-appellants have been paying a meagre amount of rent although the suit shop is situated in the heart of the city at Khajanewalon- ka-Rasta, Jaipur, and not only the land prices have appreciated tremendously but also rental value of the suit shop has also gone very high. Presently defendant-appellants have been paying the rent at the rate of Rs. 300/- per month, which is considered to be a very meagre amount as compared to rental value of the suit shop looking to its commercial location. 5. The Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., 2005 (1) CCC 454 (SC) : 2005 (1) ACJ 426 (SC) : 2005 (1) SCC 705 , considered jurisdiction of appellate Court while passing order of stay tinder Order 41 Rule 5 of the Civil Procedure Code, and held that appellate court has jurisdiction to put applicant under Order 41 Rule 5 of the Civil Procedure Code, on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay, while passing the stay order in his favour, in the event of the appeal being dismissed. The Supreme Court in above referred case held as under: "19. To sum up, our conclusions are: 1. While passing an order of stay under Rule 5 Order 41 of the Civil Procedure Code, 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. 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. 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 rent 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." 6. The Supreme Court again in Anderson Wright & Company v. Amar Nath Roy, 2005 (1) ACJ 702 (SC) : 2005 (2) CCC 318 (SC) : 2005 DNJ (SC) 562, while considering its earlier judgment in Atma Ram Properties (P) Limited case's (Supra) reiterated same proposition of law. 7. A coordinate bench of this court, while deciding application vide order dated 09.03.2006, filed by landlord-respondent under Section 151 Civil Procedure Code in S.B. Civil Second Appeal No. 458/2001, Madan Bansal v. 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. 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 premises as per the market value of the shop or the prevalent rent of the premises. The Order 41 Rule 5 of the Civil Procedure Code 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 he protected…" 8. Therefore, I am of the view that once the second appeal of defendant-appellants is admitted then the eviction-decree passed against them should be stayed and same is accordingly stayed during pendency of second appeal on following terms and conditions: Defendant-appellants shall deposit all arrears of monthly rent/mesne profit as per decree of both the courts below for the period upto 30th June, 2011 within a period of one month from today and shall thereafter pay monthly mesne profit of Rs. 15,000/- (Rupees fifteen thousand only) per month by 15th day of each succeeding month with effect from 1st of July, 2011 in the bank account of the plaintiff-respondent, the details of which shall be furnished by the plaintiff-respondent, within a period of two weeks to learned counsel for defendant-appellants or to the appellants directly, failing which it will be open to the defendant-appellants to deposit the amount in the trial court itself. It is made clear that in case defendant-appellants fail to make payment of arrears of monthly rent/mesne profit within a period of one month from today or fails to deposit/pay monthly mesne profit as directed above with effect from 01.07.2011 for consecutive two months then it will be open for plaintiff-respondent to execute the decree of eviction passed in his favour even during pendency of the second appeal. Stay application accordingly stands disposed of. Order accordingly.