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2012 DIGILAW 2334 (MAD)

N. Pushpavalli v. A. Ganesan

2012-06-08

G.RAJASURIA

body2012
Judgment :- 1. Heard both sides. 2. These two civil revision petitions have been focussed as against the orders and decreetal orders dated 14.11.2011 passed by the learned V Additional Judge, i/c of the I Additional City Civil Court, Chennai in C.M.P.No.24 of 2012 in A.S.No.470 of 2011 and C.M.P.No.394 of 2012 in C.M.P.No.24 of 2012 in A.S.No.470 of 2011 respectively. 3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of these two civil revision petitions would run thus: (i) A.Ganesan -the first respondent herein filed the suit O.S.No.8185 of 2005 seeking the following reliefs: .- To pass a judgment and decree as against the defendants directing them .- to quit, deliver and hand over vacant possession of the house ground and premises at No.9/364, SIDCO Nagar, Villivakkam, Chennai 600 049 more fully described in the schedule hereunder. .- to pay the plaintiff the sum of Rs.3,000/-per month towards damages for the wrongful use and occupation although entitled from October 2005 but is claiming only from date of plaint till date of actual delivery of possession and for costs. (ii) After contest the suit was decreed; the operative portion of the decree would run thus: "1.) that the defendant do quit deliver and hand over vacant possession of the house ground and premises at No.9/364, SIDCO Nagar, Villivakkam, Chennai 600 049 more fully described in the schedule here under. 2.) that the defendant do pay the plaintiff sum of Rs.3,000/-per month towards damages for the wrongful use and occupation from date of plaint i.e. 12.12.2005 till the date of actual delivery of possession and that such ascertained amount shall be recoverable only on payment of requisite court fee paid by the plaintiff. 3.) that the defendant do also pay plaintiff another sum of Rs.29,813/-(rupees twenty nine thousand eight hundred and thirteen only) towards the costs of this suit as taxed and noted below: ......" (iii) Being aggrieved by dissatisfied with the judgment and decree of the trial court, the appeal was filed along with C.M.P.No.24 of 2012 for obtaining stay of the judgment and decree passed by the trial court. The appellate court while granting stay, imposed conditions thus: "1.) that the interim stay granted subject to payment of Rs.3,000/- p.m. towards damages from 12.12.2005 to till date. The appellate court while granting stay, imposed conditions thus: "1.) that the interim stay granted subject to payment of Rs.3,000/- p.m. towards damages from 12.12.2005 to till date. 2.) That the amount shall be paid on or before 22.3.2012 failing which the order shall stand cancelled. 3.) Call on 26.3.2012." (extracted as such) Aggrieved over that CRP No.2025 of 2012 has been focussed. (iv) One other application in C.M.P.No.394 of 2012 was filed before the appellate court to grant time till CRP was filed and that application was also dismissed; as against which CRP No.2026 of 2012 has been filed and it is only a sequela to the CRP referred to supra. 4. The learned counsel for the revision petitioners/appellants would put forth his arguments, which could tersely and briefly be set out thus: a] The direction of the appellate court to pay to the decree holder the entire sum under the decree, virtually amounts to executing the decree, which is not contemplated under law. b] The area under occupation of the revision petitioner is only 250 sq.ft and it would not fetch a sum of Rs.3,000/- per month and accordingly, the assessment of the damages for use and occupation in a sum of Rs.3,000/-per month was fabulous and imaginary. In fact, the revision petitioner paid a lakh and odd rupees, which the plaintiff ought to have paid to the benefit fund (D2). Accordingly he would submit that the conditions imposed by the appellate court might be set aside and stay might be granted without any condition. 5. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the revision petitioners, the learned counsel for the first respondent/decree holder would pilot his arguments, which could be set out thus: (i) For the past more than seven years, the revision petitioners have been squatting in the property without even paying a single pie and the first respondent/plaintiff have been paying the electricity charges and various other taxes relating to the suit property and the order of the appellate court is just and proper warranting no interference. (ii) Even by phantasmagorical thoughts the suit property cannot be taken as the one, which would not fetch a sum of Rs.3,000/-per month because the location of the suit property is within the city limit and the property like the suit property would fetch very easily a rent of Rs.3,000/- per month and that was why the trial court assessed the damages for use and occupation by the revision petitioners at that amount. Accordingly, he would pray for the dismissal of the revision petitions. 6. The point for consideration is as to whether there is any perversity or illegality in the condition imposed by the appellate court while granting stay? 7. The learned counsel for the revision petitioners would appropriately and appositely bring to the knowledge of this court that the condition imposed by the lower court itself in the decree is to the effect that the decree holder would be able to recover the amount therein only after payment of necessary court fee. But so far no such court fee has been paid. However the appellate court ignoring those facts, simply ordered the appellant to pay the amount due under the decree in entirety to the decree holder. 8. I could see considerable force in the submission made by the learned counsel for the revision petitioners. 9. The learned counsel for the first respondent also would submit that so far such court fee ordered has not been paid. 10. Be that as it may, this court as of now has to see whether the condition imposed by the appellate court in granting stay is just and proper. Normally the appellate court should be lenient in granting stay in case of this nature. However, mere granting of stay without any condition would prejudice the right of the respondent/decree holder. While imposing conditions, the court should be just and proper and a balance has to be struck between the rights of both sides. 11. Here, the first appellate court was not justified in especially ordering the entire arrears to be paid as a condition precedent for availing the stay. Much argument has been advanced on both sides relating to the quantum. 11. Here, the first appellate court was not justified in especially ordering the entire arrears to be paid as a condition precedent for availing the stay. Much argument has been advanced on both sides relating to the quantum. This is only a revision and the scope of it is quite obvious and axiomatic and I need not elaborate on it and if any observation is made in this revision that will affect the rights of the parties before the appellate court, which is the competent forum to decide the entire case. 12. Now for the purpose of imposing condition, what I can mandate is that out of the sum of Rs.3,000/- per month assessed towards damages for use and occupation, half of it, so to say, a sum of Rs.1,500/-per month could be ordered to be deposited in court and accordingly, if worked out, the learned counsel for the revision petitioners would submit that as on date, the alleged arrears comes to Rs.2,34,000/- and half of it comes to Rs.1,17,000/-, which itself the revision petitioners would not be able to deposit in court. 13. Whereas the learned counsel for the first respondent/decree holder would submit that if such a meagre sum is ordered to be deposited then the decree holder would not be able to recover the due in the event of succeeding in the appeal. 14. At this stage, the court cannot finally decide the rights of the parties. By way of striking a balance between the rights of both the parties, I am of the considered view that the revision petitioners are mandated to deposit as a condition precedent for availing the stay, a sum of Rs.1,17,000/-(rupees one lakh and seventeen thousand only) in the trial court and the same shall be deposited within a period of two months from this date, which shall be retained by the civil court in its deposit pending appeal. 15. Additionally, the learned counsel for the revision petitioners in all fairness would state that a sum of Rs.1,500/- (Rupees one thousand and five hundred only) every month would be directly paid by the revision petitioners to the first respondent/decree holder and obtain acknowledgement. 15. Additionally, the learned counsel for the revision petitioners in all fairness would state that a sum of Rs.1,500/- (Rupees one thousand and five hundred only) every month would be directly paid by the revision petitioners to the first respondent/decree holder and obtain acknowledgement. In my opinion, that is a fair submission, which could be accepted and accordingly, the revision petitioners shall adopt such a course relating to future payment, so to say, the amount payable for the month of June 2012 shall be paid in July 2012 and so on till the disposal of the appeal. Accordingly, the order of the appellate court shall stand modified as set out supra. The appellate court shall do well to see that the matter is disposed of within a period of four months from the date of receipt of a copy of this order. 16. Accordingly, both these civil revision petitions are disposed of. No costs. Consequently, the connected miscellaneous petition is closed.