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2016 DIGILAW 365 (RAJ)

Shyamlal through Lrs v. Anil Kumar Goyal

2016-03-03

VEERENDR SINGH SIRADHANA

body2016
JUDGMENT : Veerendr Singh Siradhana, J. The instant appeal was admitted on the substantial questions of law as reflected from the order drawn by this Court at motion stage, on 1st October, 2015. 2. On the same day, i.e. 1st October, 2015, upon hearing the learned counsel for the parties on the stay application, time was allowed to place on record necessary documents indicating the correct market value of the property in question for the purpose of determination of mesne profits to be paid by the appellants, pending adjudication on the appeal. 3. In response to the stay application, reply has been filed on behalf of the plaintiff/ respondent, stating that the suit shop with RCC construction is situated on the ground floor measuring about 138 Sq. feet in the heart of Ajmer city in Gurudwara, Ganj, Ajmer, which is a busy locality with commercial magnitude along with shops and commercial establishments all around it. Enclosing the valuer's report (Annexure R-1), the present monthly rent of the suit shop has been indicated to be Rs.22,600/- per month. 4. Referring to a certified copy of the registered lease deed dated 25th February, 2015 (Annexure R-2), learned Senior Counsel asserted that the premises measuring about 104 Sq. feet situated near the suit shop, was let out to one Shri Panchu Lal (lessor), on the monthly agreed rent of Rs.16,000/- (Rupees Sixteen Thousand), with a further condition for escalation of rent from time to time. Thus, keeping in view the larger size of the suit shop, the rent determined to the tune of Rs.22,600/- per month by the approved valuer supports the claim of the plaintiff/respondent for mesne profits to that extent. 5. Per contra; learned counsel for the appellant, Mr. Hemant Sharma, argued that the suit shop was let out on a rent of Rs.22/- per month in the year 1951 to the deceased defendant-Shyamlal. Furthermore, referring to the application for taking on record the documents annexed therewith, for determination of rent of the suit shop; the learned counsel would submit that the rent of the shop of similar size in the surrounding area is about Rs.350/- per month, as would be reflected from the receipts ranging between Rs.30/- per month to Rs.360/- per month as would be evident from the receipts placed on record (Annexure-1 to 4 and Annexure-6 to 8). 6. 6. I have heard the learned counsel for the parties and with their assistance perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 7. In the case of Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd., (2005) 1 SCC 705 , the Hon'ble Apex Court of the land, while considering the issue of mesne profits observed that it must not be excessive, fanciful or punitive. However, the Hon'ble Supreme Court, in no uncertain terms observed that while exercising jurisdiction under Order 41, Rule 5 of the CPC, the Court does have power to put the tenant-appellant on terms for having suffered an order for eviction and the execution of the decree is postponed while ordering stay on the appeal. Therefore, the appellate Court has to be alive to the fact that it is depriving the successful landlord of the fruits of decree drawn in his favour. At this juncture, it will be relevant to consider the text of para No. 18 and 19, which reads thus: “18. 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 tenant-appellant 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 tenant-appellant 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 & Co. There is every justification for the appellate Court to put the tenant-appellant 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 & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and anr., (1999) 1 SCR 311, 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 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 in so far 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 (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 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.” 8. The aforesaid view has been reiterated in the case of State of Maharashtra and anr. The aforesaid view has been reiterated in the case of State of Maharashtra and anr. v. Super Max International Private Limited and anr., (2009) 9 SCC 772 ; observing thus:- “77. In light of the discussions made above we hold that in an appeal or revision preferred by a tenant against a order or decree of an eviction passed under the Rent Act it is open to the appellate or the revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.” 9. The plaintiff has already furnished details of his Bank Account, in the reply to the stay application, which reads thus: Name of Bank Bank of Baroda Branch Prithvi Raj Marg (Main Branch), Ajmer. S.B. Account No. 01230100002248 Name of Account holder Anil Kumar Goyal 10. Having taken note of the observations made by a Larger Bench of the Hon'ble Supreme Court in the case of State of Maharashtra and anr. (supra); this Court is of the view that the execution of the impugned decree shall remain stayed provided the tenant-appellant deposited a sum of Rs.20,000/- (Rupees Twenty Thousand) every month commencing from the date of decree passed by Trial Court. 11. The amount in arrears shall be deposited by 7th August, 2016. The future deposits should be deposited by 7th of next succeeding month. 12. It is further directed that 50% of the amount, payable as mesne profits shall be kept in the account of the plaintiff-respondent invested in FDR, initially for one year to be renewed from time to time. Rest of the 50% of the amount will be paid on the condition of an undertaking furnished to the effect that the plaintiff-respondent would refund the amount of mesne profits, in case the appellant is successful in the instant appeal. 13. The application stands disposed off with the directions as indicated above.