Balendra Singh Chouhan vs Rajkumar Asati And Others

Gurpal Singh Ahluwalia, J

This petition under Article 227 of Constitution of India has been filed against order dated 19.12.2023 passed by Principal District Judge, Balaghat in RCA No.75/2022 by which an application filed by petitioner under Order 41 Rule 5 C.P.C. has been allowed with a condition that judgment and decree shall remain stayed subject to deposit of 50% of decreetal amount i.e. Rs.15,00,000/- as well as on furnishing personal bond and surety to the effect that in case if appeal is dismissed, then the entire decreetal shall be deposited.

It is submitted that although petitioner is running a petrol pump but since the rent was not deposited, therefore, his defense was struck off.

Be that whatever it may be.

The Supreme Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 has held as under:

“9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be “substantial loss” to the party applying for stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. v. State of M.P. [(2003) 8 SCC 648] this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the court. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record — all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corpn. [(1985) 3 SCC 545] : (SCC p. 574, para 35)

“Common sense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants.”

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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 insofar 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. 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.”

Therefore, the Appellate Court while granting temporary injunction can impose a reasonable condition. Petitioner is running a petrol pump and is involved in commercial activity and looking to the amount of arrears of rent, it appears that the rent was not paid for years together. Even his defense was struck off during trial.

Accordingly, this Court is of considered opinion that condition of deposit of Rs.15,00,000/- and furnishing surety bail and personal bond to the effect that in case if appeal is dismissed then the entire decreetal amount shall be deposited cannot be said to be unreasonable.

Accordingly, no case is made out warranting interference.

The petition fails and is hereby dismissed.