Research › Search › Judgment

Telangana High Court · body

2025 DIGILAW 1792 (TS)

T. Narender Rao v. D. Krishna

2025-12-11

NARSING RAO NANDIKONDA

body2025
ORDER : This Civil Revision Petition is filed under Article 227 of the Constitution of India against the order passed in I.A.No.1066 of 2018 in A.S.No.182 of 2018 on the file of the X Additional Chief Judge, City Civil Court at Hyderabad. 2. Heard Sri K.R.K.Gargeya, learned counsel for the petitioners and Ms.Sunil B.Ganu, learned counsel for the respondents. 3. Brief facts of the case are that the revision petitioners herein, who are the appellants in A.S.No.182 of 2018, filed the said appeal being aggrieved by the judgment and decree passed in O.S.No.884 of 2010 by the learned XVII Senior Civil Judge, City Civil Court, Hyderabad, dated 04.07.2018. Wherein, pending the appeal, an application was also filed under Order 41 Rule 5 read with Section 151 of the Code of Civil Procedure, praying to stay all further proceedings in pursuance of the judgment and decree dated 04.07.2018. The said application was filed on the ground that the petitioners have good grounds to succeed in the appeal and that their possession over the suit schedule property is protected under Exs.B1 and B2. It was further contended that if the judgment and decree are executed, the petitioners will be dispossessed from the suit schedule property, thereby causing great hardship to them, and hence prayed for grant of stay of execution of the judgment and decree of the trial Court. 4. The respondent filed a counter and vehemently opposed the petition for grant of stay of execution of the judgment and decree passed by the trial Court. It was contended that the petitioners/appellants are in illegal possession of the suit schedule property since 2008 and that they did not place any cogent and acceptable evidence to establish and prove their case before the trial Court. Merely on the ground that the petitioners are in possession of the suit schedule property does not establish their title over the counter-claim schedule property in the absence of any valid title in their favour. It was further contended that in the event of unconditional stay being granted during the pendency of the appeal of a party in possession, the same would result in substantial loss to the party opposing the stay. 5. It was further contended that in the event of unconditional stay being granted during the pendency of the appeal of a party in possession, the same would result in substantial loss to the party opposing the stay. 5. Having heard both the counsel, the learned Judge considering the contention and rival contention of the both the parties and also the judgment of Atma Ram Properties (P) Limited vs. Federal (P) Limited , (2005) 1 SCC 705 , taking into consideration of the same and that the appellate court came up with terms and directed the appellants to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. The learned judged took a clue from the said judgment applying all the said principles have held that as plaintiff claim mesne profits for use and occupation of the suit schedule premises @Rs.4,000/- per month from 03.02.2010 till delivery of possession of suit schedule property. Considering the same, the petition was allowed and interim stay was granted subject to the condition that the petitioner/appellants appellants are directed to deposit mesne profits/damages @Rs.4,000/- per month from 03.02.2010 to till date and shall continue to deposit the same at the same rate till disposal of the appeal and also to deposit the suit costs. Considering the same, the petition was allowed and interim stay was granted subject to the condition that the petitioner/appellants appellants are directed to deposit mesne profits/damages @Rs.4,000/- per month from 03.02.2010 to till date and shall continue to deposit the same at the same rate till disposal of the appeal and also to deposit the suit costs. Further it is also directed that on such deposit, the respondent/plaintiff is entitled to receive the same by furnishing security to the satisfaction of the trial Courts, being aggrieved by the same the present Civil Revision Petition is filed contending that the learned Judge erroneously gave direction to the petitioner to deposit the said amounts to the credit of the suit and further directed to continue to deposit the same at the same rate and it is further contended that the respondent/plaintiff claiming relief to declare that the plaintiff is the absolute owner of the suit schedule property and also further prayed seeking damages for illegal use and occupation of the suit schedule property @Rs.4,000/- per month and the ground that the land lord would have able to let out the premises and earned rent, if tenant would have vacated the premises and also raised the ground that the judgment cited by the petitioner/plaintiff therein i.e., Atma Ram Properties (P) Limited vs. Federal (P) Limited , (2005) 1 SCC 705 , will not be applicable to the instant case and prayed to allow the Civil Revision Petition and to set aside the condition imposed. 6. Having heard the contentions and rival contentions of both the parties, wherein the learned counsel for the appellants have argued and contended that the contention which is imposed and supporting the order of the trial Court and also relied upon the judgment of the Patna High Court in Tausif Ahmad And Ors. vs Munshi Baharuddin And Ors , AIR 1965 Pat 436 wherein it is held that: Para 9: In view of these decisions, the principles can be analysed in the following manner: (a) In case the plaintiff claims past and future mesne profits and such a claim is allowed in the decree, it is open to apply for the ascertainment of past and future mesne profits. (b) If no claim is made at all for mesne profits, there can be no decree for it and then the question of ascertainment does not arise. (b) If no claim is made at all for mesne profits, there can be no decree for it and then the question of ascertainment does not arise. (c) If, however, the plaintiff claims mesne, profits but the claim is refused, then a petition for ascertainment is not maintainable. (d) Even if the claim is for past mesne profits only, it is open to a court to allow future mesne profits as well and in that case plaintiff can apply for ascertainment of even future mesne profits. (e) If the claim is for past mesne profits only and the court allows only this claim in the decree and keeps silent about the future mesne profits, the plaintiff cannot apply for ascertainment of future mesne profits as they will be doomed to have been refused. High of Punjab & Haryana in Harbans Singh through LR vs. Bharti Devi @ Sarita and others Para 4: Learned counsel for the petitioner relies upon a judgment of the Supreme Court in M/s Atma Ram Properties (P) Ltd. v. M/s Federal Motors Pvt. Ltd., 2005(1) RCR (Rent) 1, from which he points to the conclusion passed by their Lordships, which reads as follows:- 18. 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 reasonable 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 (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. 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. 7. The learned counsel for the appellant argued and contended that the condition imposed by the learned Judge is not supported by any law and that the same amounts to as though granting the main relief of awarding the mesne profits and without ascertaining, the same and directing the petitioner to pay the amounts which amounts to as though granting the relief which ought to have been granted subsequently after ascertainment of mesne profits. 8. The learned counsel for the respondent by supporting the order of the trial Court have relied upon the judgment of the Hon’ble Supreme Court in Atma Ram Properties Pvt. Ltd vs. Federal Motors Pvt. Ltd , (2009) 1 SCC 705 in Para 8: It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the Court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the Court dealing with a prayer for the grant of stay asks to itself is: Why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted. M.E.K.K. Varma vs. Ramoji Rao and others, (2014) 2 ALD 110 Para 34: So far as the second question is concerned, the Supreme Court held that the liability to pay the rent otherwise than under contractual terms would arise on the order of eviction being passed. The answers were provided in para 19 as under: “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 (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. Para 35: In State of Maharashtra v. Super Max International Private Limited (1 supra), the said principles were taken note of. In the context of determination of the market rent, the formula adopted by the Bombay High Court was affirmed. Their Lordships held at paras 77 and 78 as under: “77 . In the light of the discussions made above we hold that in an appeal or revision preferred by a tenant against an 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. 78. In the case in hand, the High Court has fixed the amount of Rs.5,40,000/- per month with reference to Stamp Duty Ready Reckoner and hence, its reasonableness cannot be doubted. In fairness to Mr.Lalit he did not challenge the fixation of the amount on that ground.” Para 42: Learned counsel for the respondents submit that it was published in a different context and the principle laid down by the Supreme Court in State of Maharashtra v. Super Max International Private Limited (1 supra) , cannot be applied to the facts of the case. Those figures are not disputed. The total value of the property comes to Rs.40,36,50,000 (land) + Rs.90,00,000 (structure) = Rs.41,26,50,000/-. Those figures are not disputed. The total value of the property comes to Rs.40,36,50,000 (land) + Rs.90,00,000 (structure) = Rs.41,26,50,000/-. 6% of the total value was taken as the Annual Rental Value for premises in Bombay. For Visakhapatnam, it can be taken as 5%. The resultant figure would be Rs.2,06,32,500/-. The monthly rent on this basis would be Rs.17,19,375/-. It can be rounded off to Rs.17.00 lakhs. The respondents can be required to pay the rent at that rate from the date of order, whereas the arrears of rent up to the date of order of eviction shall be as per the contractual rate. Para 43: Hence, C.R.P.Nos.2619 to 2626 of 2013 filed against the orders of the Appellate Authority granting stay, are allowed in part, directing that the stay granted by the Appellate Authority shall be on condition that the respondents shall deposit the arrears of rent calculated @ Rs.17.00 lakhs, per month, from the date of eviction. C.R.P.Nos.2627 to 2634 of 2013, filed against the dismissal of applications for rejection of the appeals are dismissed. In both the judgments relied upon by the respondent, the same are distinguishable for the reason that in both the judgments it was a tenant–owner relationship, and the issue involved was whether the tenant was paying rent and also the quantum of rent which had already been prescribed. In the present case, it is a suit filed for declaration and possession, seeking possession of the suit schedule property from the defendant and also a decree directing the defendant to pay damages for illegal use and occupation of the suit schedule property at the rate of Rs.4,000/- per month from 03.02.2010, i.e., from the date of purchase. Thus, the plaintiff claimed the said quantum by way of damages from the date of purchase. It is not a case where the defendant was a tenant and there was an admitted quantum of rent which was being paid prior to the filing of the suit. One of the reliefs claimed in the suit itself is for payment of mesne profits. 9. As it is only on the ground that the said property is capable of fetching Rs.4,000/- per month, which is only a claim of the plaintiff, whereas the said quantum has to be ascertained by the Court by following the procedure prescribed under the Code of Civil Procedure. 9. As it is only on the ground that the said property is capable of fetching Rs.4,000/- per month, which is only a claim of the plaintiff, whereas the said quantum has to be ascertained by the Court by following the procedure prescribed under the Code of Civil Procedure. Without such ascertainment of mesne profits and without the Court coming to a conclusion, directing the appellants/defendants to pay mesne profits at the rate of Rs.4,000/- per month by way of a condition for grant of stay amounts to granting the very relief sought for by the plaintiff in the suit that too at an interim stage under Order XLI Rule 5 CPC pending appeal. Therefore, the condition imposed by the learned Judge is not appropriate and, prima facie, an error has been committed by the learned trial Court. As such, this Court feels that it is a fit case to interfere with the said findings. 10. Accordingly, the Civil Revision Petition deserves to be and accordingly allowed, by deleting the condition imposed while granting stay, i.e., “Directing the appellants to deposit mesne profits/damages at the rate of Rs.4,000/- per month from 03.02.2010 to till date and to continue to deposit the same at the same rate till disposal of the appeal”, and however the condition to deposit the suit costs to the credit of the original suit. And, on such deposit, the plaintiff is entitled to receive the same without furnishing security, subject to the result of the appeal is kept intact and undisturbed. Miscellaneous petitions, if any are pending, shall stand dismissed.