Thakur Shri Govind Dev Ji Virajman Temple and Others vs Najamuddin

Veerender Singh Siradhana, J.—In the instant writ application, the petitioners/plaintiffs, have assailed the legality, validity and correctness of the order dated 23rd March, 2012 passed on an application under Order 41 Rule 5 of the Civil Procedure Code (hereinafter referred to as ''CPC'', for short), along with appeal preferred under Order 41 CPC by the non-petitioner/defendant before the District Judge, Karauli. The appeal preferred is directed against the judgment and decree dated 18th February, 2012 passed by the learned trial Court, decreeing the suit for eviction and standard rent/mesne profit, in favour of the petitioners/plaintiffs with a further direction to pay rent @ Rs. 1,000/- per month from the date of institution of the suit till handing over of the possession of the shop in dispute.

The learned appellate Court on an application under Order 41 Rule 5 CPC preferred by the non-petitioner/defendant has stayed the execution of the judgment and decree including money decree of the rent from the date of filing of the suit till the date of judgment and decree, subject to the condition that the non-petitioner/defendant will pay Rs. 1,000/- per month from the date of decree till the possession is handed over. Aggrieved of the impugned order dated 23rd March, 2012, the petitioners/plaintiffs have approached this Court with the prayer for the following relief(s):--

"It is, therefore, most humbly prayed that Your Lordships may graciously be pleased to admit and allow this writ petition and entire record of the learned trial court be called for and further be pleased to quashed and set aside the order dated 23.03.2012 passed by non-petitioner No. 2 in civil misc. case No. 5/2012 titled as (Najamuddin v. Thakur Shri Govind Dev Ji and another) alternatively it is humbly prayed that the non-petitioner be directed to pay the amount of rent @ Rs. 1000/- p.m. from the date of filing the suit till the date of judgment and decree also to plaintiff as directed by the learned trial court. Further it is most respectfully prayed that during the pendency of the appeal the non-petitioner No. 1 may kindly be directed to pay mesne profit @ Rs. 2000/- p.m. to the plaintiff.

Any other order or direction which the Hon''ble Court deems fit and proper may kindly be passed in favour of the petitioner.

Cost of the writ petition be also awarded in favour of the petitioner."

The learned counsel for the petitioners/plaintiffs has vehemently submitted that the learned appellate Court while making the impugned order dated 23rd March, 2012, failed to consider the materials available on record and in a cursory manner stayed the execution of the judgment and decree of eviction without realizing the fact that the petitioners/plaintiffs'' claim was adjudicated upon after a period of 13 years, thereby depriving the petitioners of the fruits of long drawn litigation.

The learned counsel would further submit that the learned appellate Court completely ignored the mandate of Rule 5 of Order 41 CPC, which specifically contemplates that no order of stay of execution shall be made unless; firstly, the Court records it''s satisfaction that substantial loss may result to the party applying for stay of execution unless the order is made. Secondly, security has been given by the appellant for the due performance of such decree or order as may ultimately be binding upon him. The learned counsel further urged that while making the impugned order dated 23rd March, 2012, the appellate Court also stayed money decree of the rent, which was passed by the learned trial Court @ Rs. 1,000/- per month from the date of filing of the suit. The appellate Court even did not call upon the respondent/defendant to furnish security for due performance of the decree as may ultimately be binding upon him and therefore, the impugned order is contrary to the mandate of Rule 5 of Order 41 CPC. The learned counsel further pointed out that the disputed shop is situated in the main market of Karauli City, which is known as "Sadar Bazar" and the rent of identical shops is much higher than what has been assessed by the learned trial Court. Placing reliance on the opinion of the Hon''ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., ; the learned counsel stressed, that the tenancy comes to an end on passing of the judgment and decree and does not continue until the tenant is actually and physically evicted from the premises in execution of the decree and therefore, if the execution of the judgment and decree is stayed, the decree-holder is entitled for compensation by awarding an adequate amount and mesne profit whereas the learned appellate Court in the instant case at hand, completely lost sight of the principle aforesaid.

I have heard the learned counsel for the petitioners/plaintiffs and non-petitioner/defendant and with their assistant, perused the materials available on record as well as the impugned order dated 23rd March, 2012.

The factual matrix is not in dispute between the parties. In the case of Atma Ram Properties (P) Ltd. (supra), the Hon''ble Supreme Court while considering the issue of ''substantial loss'' during the pendency of an appeal of a party in possession and referring to the provisions of Order 41 Rule 5(3)(c) observed thus:--

"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 the 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. Vs. State of M.P. and Others, , 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 of the 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 in so far 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 commonsense, 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 and Others Vs. Bombay Municipal Corporation and Others, , -

"commonsense which is a cluster of life''s experiences, is often more dependable than the rival facts presented by warring litigants".

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 (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."

The Hon''ble Supreme Court in the case of Atma Ram Properties (P) Ltd. (supra), held out in unequivocal terms that the appellate Court while exercising the jurisdiction under Order 41 Rule 5 CPC is vested with the power to put the appellant tenant on terms and while making an order of 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 of eviction. Their Lordships taking note of the fact that landlord-tenant litigation constitutes a large chunk of litigation pending in the courts and tribunals and the litigations goes on for unreasonable lengths 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 afforded to perpetuate the life of litigation and continue in possession though in the end, they may lose but in fact, they do not lose anything and rather stands to gain for having enjoyed the use and occupation of the premises and earned as well a lot from the premises, if they are non-residential in nature.

Having considered the totality of the facts and circumstances of the case, the non-petitioner/defendant/Najamuddin is directed to pay the rent @ Rs. 1,000/- per month from the date of filing of the suit uptil the date of judgment and decree under challenge before the appellate Court within a period of three months.

The non-petitioner/defendant is further directed to deposit a sum of Rs. 2,000/- per month as mesne profit with the appellate Court on or before every 15th day, of every month, pending hearing of the appeal. However, the amount of Rs. 2,000/- so deposited may not be disbursed to the petitioner/plaintiff without permission of the Court. The impugned order dated 23rd March, 2012 stands modified to that extent.

In the result, the writ petition is, thus partly allowed as indicated above.

However, in the facts and circumstances of the case, there shall be no order as to costs.

In view of the final adjudication on the writ application, the stay application stands closed.