JUDGMENT : ARIJIT BANERJEE, J. In Re: IA No. CAN/4/2022 1. This is an application for modification of an order dated January 7, 2014, passed in this second appeal. By that order, a Coordinate Bench admitted the appeal on the questions of law recorded in the order and further directed “stay of operation of the decree provided the appellant would continue to pay Rs. 50,000/- per month as occupation charges for the suit premises commencing from January, 2013, until further order.” There was also a direction for payment of the arrear amount in 12 equal monthly instalments. We are told that the arrear amount has been paid. 2. The material facts of the case in so far as the same are relevant for the present purpose, are that the respondents/applicants are the owners of land measuring about 31.09 kathas on Hill Cart Road in Siliguri. The predecessor in interest of the first applicant along with other owners of the land entered into a lease agreement Dated March 1, 1962, with one Standard Vacuum Oil Company for a period of 10 years with an option for renewal of the lease for a further period of ten years, in respect of the said land. In 1974, Standard Vacuum Oil Company came to be known as ESSO Standard Eastern Inc. Subsequently, ESSO was converted to Hindustan Petroleum Corporation Limited (in short “HPCL”) the present appellant, under an acquisition made by the Government of India. In the year 1988, an ejectment suit being O.C. Suit No. 23 of 1988 was filed by the predecessor-in-interest of the applicants against HPCL, in the Court of the learned Munsiff at Siliguri. The suit was decreed in favour of the plaintiffs on June 19, 1995. The plaintiffs being the predecessors in interest of the present applicants, were granted khas possession of the suit property and the appellant herein was directed to vacate the said property by the end of August, 1995. 3. The appellant challenged the decree before the learned District Judge at Darjeeling by filing Appeal No. 2 of 1995. The appeal was dismissed by a judgment and order dated December 19, 2012. Against such dismissal order, the present second appeal has been preferred by HPCL. 4. 3. The appellant challenged the decree before the learned District Judge at Darjeeling by filing Appeal No. 2 of 1995. The appeal was dismissed by a judgment and order dated December 19, 2012. Against such dismissal order, the present second appeal has been preferred by HPCL. 4. At the time of the admission of the second appeal the order dated January 7, 2014 was passed by a Coordinate Bench, modification of which is sought for by the applicants (respondents in the appeal) in the present application. 5. The applicants say that occupational charge of Rs. 50,000/- per month is not commensurate with the actual value of the land in question. The land is situate in a prime commercial locality in the heart of Siliguri. The property is adjacent to the Courtyard of Hotel Marriot. The applicants rely on a valuation report dated September 13, 2022, furnished by a Government approved Valuer namely Shri P.K. Das who is also registered with the Income Tax Department. According to such report the present market value of the land in question is approximately Rs. 31.09 Crore and the present monthly occupational charge would be Rs. 11,66,000/-. 6. The applicants also rely on an E-Assessment Slip issued by the government of West Bengal, Directorate of Registration & Stamp Revenue which shows that the market value of the land as approximately Rs. 38.10 Crore. 7. Learned Advocate for the applicants submitted that once an eviction decree has been passed and execution is delayed due to operation of stay order of the appellate forum, depriving the decree holder of the fruits of the decree, the appellate forum should pass appropriate orders so that reasonable occupational charge equivalent to the market rent is paid by the judgment debtor who is holding on to the property in question. In this connection learned Advocate relied on Paragraphs 4, 5, 18 and 19 of the decision of the Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705 , which read as follows. “4. Ordinarily, this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. “4. Ordinarily, this Court does not interfere with discretionary orders, more so when they are of interim nature, passed by the High Court or subordinate Courts/Tribunals. However, this appeal raises an issue of frequent recurrence and, therefore, we have heard the learned counsel for the parties at length. Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. If the plea raised by the learned senior counsel for the respondent was to be accepted, the tenant, in spite of having lost at the end, does not lose anything and rather stands to gain as he has enjoyed the use and occupation of the premises, earned as well a lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally insignificant. 5. Shri K. Ramamurthy, the learned senior counsel for the appellant submitted that once a decree or order for eviction has been passed, the tenant is liable to be evicted and if he files an appeal or revision and opts for retaining use and occupation of the premises, he should be prepared to compensate the landlord by paying such amount as the landlord would have been able to earn in the event of the premises being vacated and, therefore, the superior court, passing an order of stay, acts well within its discretionary jurisdiction by putting on terms the appellant who seeks an order of stay. On the other hand, Shri Ranjit Kumar, the learned senior counsel appearing for the respondent, defended the order of the High Court by raising several pleas noticed shortly hereinafter. 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 appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. 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 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 & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. & Anr. (1999) 2 SCC 325 , 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 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 (l) 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 (l) 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 later date.” 8. Learned Advocate also relied on the decision of the Hon’ble Apex Court in the case of Martin and Harris Private Limited & Anr. v. Rajendra Mehta & Ors. (2022) 8 SCC 527 and in particular on paragraphs 18 and 19 of the reported judgment, which read as follows: “18. Thus, after passing the decree of eviction the tenancy terminates and from the said date the landlord is entitled for mesne profits or compensation depriving him from the use of the premises. The view taken in Atma Ram (supra) has been reaffirmed in the case of State of Maharashtra vs. Super Max International Pvt. Ltd. and others, (2009) 9 SCC 772 by three Judges Bench of this Court. Therefore, looking to the fact that the decree of eviction passed by Trial Court on 03.03.2016 has been confirmed in appeal; against which second appeal is pending, however, after stay on being asked the direction to pay mesne profits or compensation issued by the High Court is in consonance to the law laid down by this Court, which is just, equitable and reasonable. 19. 19. The basis of determination of the amount of mesne profits, in our view, depends on the facts and circumstances of each case considering place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.” 9. In short, learned Advocate for the applicants argued that given the location and size of the land in question, the reasonable occupational charge should be around Rs. 11.66 lakh. However, the applicants are willing to accept Rs. 9.66 lakh as monthly occupational charges. 10. Learned Advocate for HPCL submitted that when the appeal was admitted and the appellant was directed to pay Rs. 50,000/- as occupational charge, that amount was acceptable to the applicants. Even assuming that the value of property has increased manifold, it cannot be argued that what Rs. 50,000/- was in 2014, will be Rs. 9.66 lakh as on date. Even assuming that rental income has increased 400% between 2014 and 2023, a maximum of Rs. 2 lakh per month should be the reasonable occupational charges in respect of the land in question, as on date. He submitted that HPCL is prepared to pay Rs. 2 lakh per month as occupational charge till the disposal of the appeal. 11. We have considered the rival contentions of the parties. 12. Keeping in mind the observations of the Hon’ble Supreme Court in the two decisions referred to above, we are of the view that Rs. 50,000/- per month cannot be said to be the reasonable occupational charge in respect of the land in question. The land measures approximately 31 kathas, i.e. approximately 22,320 Sq. ft. The land is located in the heart of Siliguri, in a prime commercial area. HPCL is commercially exploiting the property for a long time. According to the valuation report of a Government approved Valuer who is also registered with the Income Tax Department, the current market value of the concerned land is approximately Rs. 31 crore and the present monthly rental would be approximately Rs. 11.66 lakh. If we go by the E-Assessment Slip generated by the Directorate of Registration and Stamp Revenue, Government of West Bengal, the present market value of the land is approximately Rs. 38 Crore. 13. 31 crore and the present monthly rental would be approximately Rs. 11.66 lakh. If we go by the E-Assessment Slip generated by the Directorate of Registration and Stamp Revenue, Government of West Bengal, the present market value of the land is approximately Rs. 38 Crore. 13. Keeping in mind that Siliguri is the second biggest city in West Bengal, the general level of land price in that city and the other factors like location etc. mentioned above, in our opinion, Rs. 5 lakh per month would be the reasonable letting out value of the land in question. In other words, if HPCL had vacated the land in terms of the eviction decree obtained by the applicants, the applicants could have let out the land at a monthly rental of at least Rs. 5 lakh. However, the applicants cannot do so because HPCL continues to occupy the land and carry on business therefrom on the strength of the stay order passed by a Coordinate Bench in January, 2014. Therefore, it is only just and fair that HPCL pays to the applicants monthly occupational charge at the rate at which the applicants could have rented out the property, had HPCL handed over vacant possession thereof to the applicants in terms of the eviction decree. 14. In January 2014, when the Coordinate Bench directed HPCL to pay Rs. 50,000/- per month as occupational charge, the same was done without reference to the observations of the Hon’ble Supreme Court in the case of Atma Ram Properties (supra). In any event, in our considered opinion, Rs. 5 lakh would currently represent the reasonable monthly occupational charge in respect of the land in question. 15. Accordingly, we modify the order dated January 7, 2014, to the extent that HPCL shall pay occupational charge at the rate of Rs. 5 lakh per month to the applicants for the period starting from October 1, 2023, till disposal of the appeal. 16. The application being I.A. No. CAN/4/2022 is accordingly disposed of. I agree - APURBA SINHA RAY, J.