A.C.M.E. Constructions Corporation vs Bharat Petroleum Corporation Ltd.

Leave granted. This appeal has been filed against the judgment and order which is interim in nature passed by the High Court of Judicature at Bombay in Civil Application No. 14 of 2011 in Writ Petition No. 3238 of 2004 by which the application filed the Appellant herein for vacating the interim order of stay granted by the High Court on April 12, 2004 by which dispossession of the Respondent was stayed, was rejected but the Appellant was granted liberty to execute the decree passed by the Court of Small Causes regarding mesne profits and the issue whether the order granting mesne profits can be stayed or not was left open to be decided by the Appellate Court.

Admittedly, the Appellant has succeeded in getting a decree of eviction against the Respondent-tenant. The Respondent filed an appeal against the decree of eviction which was dismissed by the First Appellate Court and thereafter the Respondent-tenant filed a writ in the High Court assailing the decree of eviction. However, the appeal filed by the Respondent-tenant against the decree of mesne profits is still pending before the First Appellate Court.

The High Court stayed the decree of eviction vide order dated 12/04/2004 and the matter remained pending. The Appellant felt aggrieved of the order of stay of eviction, clearly on the averment that while the Respondent is enjoying stay of dispossession in spite of the Appellant having succeeded in getting a decree of eviction, no condition was imposed on the Respondent-judgment-debtor and the Appellant suffered in the process by getting a sum of Rs. 500/- p.m. only for the property which can fetch a rent multiple times more. The Appellant, therefore, filed an application for vacating the interim order of stay and the High Court while rejecting the application, allowed the Appellant to execute the order of Trial Court regarding mesne profits as already stated hereinbefore.

Having heard counsel for the parties, we are conscious of the fact that the Appellant although has succeeded in securing a decree of eviction in his favour, has not got possession and Respondent is enjoying the premises without even having to pay the fair rent by way of damages in regard to the disputed premises.

It has been held in Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., ; Anderson Wright and Co. Vs. Amar Nath Roy and Others, and The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others, that if the appeal against the decree of eviction has been entertained by way of an appeal or a writ petition and the decree of eviction is stayed, then it is appropriate for the Court staying the decree of eviction to modify the decree of mesne profits by way of an interim arrangement which may be treated as rent or damages. However, the High Court has refused to vacate the order of stay granted earlier by it vide order dated 12/04/2004.

We are equally conscious of the fact that the Appellant in spite of having succeeded in securing a decree of eviction for the disputed premises and has also succeeded in securing a decree by way of mesne profits to be paid to him from the year 2000 up to the delivery of possession @ Rs. 2,75,600/- p.m. to be paid every month by the contesting Respondent to the Appellant, the Appellant has to remain content with only Rs. 500/- p.m. during pendency of the writ petition.

However, since the writ petition assailing the decree of eviction is pending, the Respondent submitted that they are not liable to pay this amount as the appeal regarding determination of mesne profits is still pending before the First Appellate Court. In view of the aforesaid contentious issues, we thought it proper that in order to balance the equity and justice, a reconciliation formula be adopted and, therefore, we have accepted the suggestion made by learned Counsel for the Appellant that a sum of Rs. 75,364/- be paid every month by the contesting Respondent to the Appellant and the total amount which accrues from 01/08/2000 to 31/12/2012 at this rate would be Rs. 1,12,29,236/- (Rupees one crore twelve lakhs twenty nine thousand two hundred thirty six only) as against the approximate amount of Rs. 6 crores which would accrue if the decree towards mesne profits passed in favour of the Appellant is to be calculated.

Learned counsel for the Respondent also had no objection to paying Rs. 75,364/- to the Appellant each month as also towards arrears at this rate to be calculated from 01/08/2000 till 31/12/2012. It is clarified that this amount shall not prejudice the case of the Appellant before the executing Court while executing the decree passed by the Trial Court in its favour, which, obviously, shall be subject to the result of the appeal pending in the First Appellate Court.

In order to avoid any future dispute, it is further clarified that the Respondent shall continue to pay the amount of Rs. 75,464/- to the Appellant on month to month basis until the writ petition is finally decided by the High Court. The Appellant is further at liberty to impress upon the Courts below for giving priority to the hearing of the matters.

The appeal is, accordingly, disposed of.