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2012 DIGILAW 1000 (PAT)

Pramod Kumar Sharma v. Raj Kumar Sharma

2012-07-20

MUNGESHWAR SAHOO

body2012
ORDER Heard the learned counsel, Mr. Jashawir Singh Arora on behalf of the appellant and the learned senior counsel, Mr. Raghiv Ahsan on behalf of the respondents on the stay application i.e. I.A. No.362 of 2011 filed by the appellant and stay vacating application i.e. I.A. No.6641 of 2011 filed by the respondent under Section 151 of the C.P.C. praying for vacating the stay order and the supplementary affidavit, counter-affidavit and reply affidavit filed by the parties including I.A. No.2475 of 2012 filed by the appellant by way of reply to the I.A. No.6641 of 2011. 2. This Second Appeal has already been admitted by terms of order dated 13.07.2012. Admittedly, the plaintiff-respondent filed eviction suit against the defendant-appellant under Bihar Building (Lease, Rent & Eviction) Control Act, 1982 for eviction of the appellant on the ground of default. The defendants denied the relationship of landlord and tenant. Both the courts below concurrently found that there is relationship of landlord and tenant. Admittedly, the appellant was paying Rs.405 per month. According to the plaintiff, the said amount was monthly rent whereas according to the defendant, it was interest. Be that as it may, since the courts below have recorded a clear finding that there is relationship of landlord and tenant and the suit has been decreed in which prayer for recovery of arrears of rent has also been made and, therefore, the plaintiffs have filed execution case being Execution Case No.10 of 2007 pending in the court of Munsif II, Munger. The appellant has filed this stay application praying for stay of further proceeding in said execution case. After hearing the appellant by terms of order dated 01.04.2011, Lawazima Board granted unconditional stay of further proceeding of the execution case. The respondent appeared and filed stay vacating application praying for vacating the stay order dated 01.04.2011 by which unconditional stay has been granted. Counter-affidavit/reply has been filed on behalf of the appellant admitting the fact that lastly, he had deposited Rs.7290 on 05.03.2005 on account of rent from the month of 7th January, 1998 to 7th July, 1999. Since thereafter till today, not a single farthing has been paid by the appellant. It is admitted that the appellant neither complied the order under Section 15 of the B.B.C. Act passed by the trial court and also the order passed by the appellate court. Since thereafter till today, not a single farthing has been paid by the appellant. It is admitted that the appellant neither complied the order under Section 15 of the B.B.C. Act passed by the trial court and also the order passed by the appellate court. Therefore, the defence of the appellant has not been complied with. 3. In the case of Atma Ram Properties(P) Ltd. Vs. Federal Motors(P) Ltd., (2005) 1 Supreme Court Cases 705, the Apex Court has held 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.” Same view has been reiterated subsequently by the Apex Court in (2009)9 Supreme Court Cases 772 (State of Maharashtra Vs. Supermax International Private Limited). In view of the above facts, now it becomes admitted fact that since after 7th of July, 1999, the appellant has not paid any rent and is residing in the suit premises. The decree of eviction has been passed against him as far back as on 31.05.2007. In view of the above facts and circumstances of the case, the appellant shall deposit the arrears of rent @ Rs.405 per month from 7th of July, 1999 to 31st of May, 2007 and thereafter @ Rs.2,000 per month from the month of June, 2007 to July, 2012 by 3 equal installments with a gap of 45 days each. In view of the above facts and circumstances of the case, the appellant shall deposit the arrears of rent @ Rs.405 per month from 7th of July, 1999 to 31st of May, 2007 and thereafter @ Rs.2,000 per month from the month of June, 2007 to July, 2012 by 3 equal installments with a gap of 45 days each. The first installment must be deposited by 15th of September, 2012 and after next 45 days, second installment shall be deposited and the rest amount by next 45 days and the rent for the month of August, 2012 shall also be included in the first installment and likewise, the rent for the month of September, 2012 in the second installment and likewise, the rent for the month of October, 2012 in the third installment and shall also go on depositing the rent for the month of November, 2012 by 15th of next following month in the Executing Court and so on and so forth for future rent at the said rate then the further proceeding so far delivery of possession is concerned, in Execution Case No.10 of 2007 pending in the court of Munsif II, Munger shall remain stayed. It is made clear that so far decree for realization of rent already passed by the trial court is not stayed. Further, it is made clear that if any of the conditions stated above is defaulted, the order of stay granted by this court today shall automatically stand vacated. Accordingly, the interim order passed by Lawazima Board is, thus, modified.