Gujarat High Court
Rajendrakumar Keshavlal Bhatt ... vs Abbasi Grain Stores Throough His ... on 21 April, 2015
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/380/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 380 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAJENDRAKUMAR KESHAVLAL BHATT (THROUGH HIS LEGAL
HEIRS)....Petitioner(s)
Versus
ABBASI GRAIN STORES THROOUGH HIS PARTNER
MANNAN....Respondent(s)
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Appearance:
MR MEHUL S SHAH, ADVOCATE for the Petitioners No. 1 - 1.6
MR KV SHELAT, ADVOCATE for the Respondent
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CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI
Date : 21/04/2015
ORAL JUDGMENT
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1. The petitioners, by this petition under Article 227 of the Constitution of India, have called in question the order dated 17.12.2009 passed by the learned Additional District Judge, Dahod below Exhibit-18 in Regular Civil Appeal No.192 of 2004, whereby the application has been allowed and the order passed below Exhibit-6 has been modified by directing the petitioners to deposit Rs.5,000/- before the tenth day of every month in the court as compensation from the date of the order.
2. The facts stated briefly are that the respondent herein instituted a suit in the Court of the learned Civil Judge (Junior Division), Dahod being Regular Civil Suit No.213 of 1989. By a judgment and decree dated 13.04.2004, the suit came to be decreed by directing the petitioner - defendant to handover the possession of the suit premises to the respondent - plaintiff within a period of two months. The court also directed the petitioner to pay Rs.25/- by way of mesne profit to the respondent as well as to pay Rs.900/- by way of arrears of rent. Being aggrieved by the judgment and decree passed by the trial court, the petitioner herein went in appeal before the learned District Judge, Panchmahals in Regular Civil Appeal No.26 of 2004. In the proceedings of the said appeal, the petitioner filed an application for interim injunction below Exhibit-5. By an order dated 20.12.2004 passed by the learned Joint District Judge, Fast Track Court No.3, Dahod below Exhibit- 5 in Regular Civil Appeal No.192 of 2004 after hearing the learned advocates for the respective parties, the judgment and decree passed by the trial court came to be stayed till the final hearing of the appeal. The court further directed the department to expedite the hearing of the appeal and to place the same on board in July, 2005.
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3. Subsequently, the respondent herein, on 28.12.2005, filed an application at Exhibit-18, praying that a condition be imposed that the appellant should pay Rs.30,000/- per month to the respondent and to deposit an amount of Rs.5,40,000/- with the court by way of compensation. It was the case of the respondent in the said application that when a decree of eviction has been passed, the tenancy would terminate and hence, on the date when the decree of eviction is passed by the trial court, the occupation of the tenant becomes unauthorized and that such tenant does not have any right to obtain a stay. That when a tenant comes to the court seeking equity, the court is required to balance the equities and accordingly, while granting the stay in favour of the tenant, the respondent herein has been deprived of his right of possession. Therefore, the party which has been successful is deprived of the fruits of the decree and hence, keeping the said position in view, reasonable conditions are required to be imposed during the pendency of the appeal. That the suit premises are situated in Dahod city in the heart beat of the commercial area and hence, the present commercial rate of rent is around Rs.20,000/- to Rs.30,000/- per month. That though the respondent has been successful before the trial court, he is deprived of the fruits of the decree which cannot be said to be reasonable. It has been further stated therein that the appellant desires to perpetuate his illegal possession of the suit premises and that the court had directed that the appeal be listed on the board in July, 2005 and that the appeal be disposed of expeditiously, however, the same has not been decided. It is in these circumstances, that the respondent had moved the above application seeking the relief noted Page 3 of 35 HC-NIC Page 3 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT hereinabove.
4. In response to the said application, the respondent filed a detailed reply dated 01.04.2006.
5. The appellate court after considering the submissions advanced by the learned advocates for the respective parties, observed that it had stayed the decree till the final hearing of the appeal by passing an order below Exhibit-5 with a direction to expedite the hearing of the appeal. In the present case, the respondent had filed the suit in the year 1989 and had succeeded and obtained a decree in the said suit in the year 2004. However, due to the filing of the appeal and the order passed below Exhibit-5 by the appellate court, the respondent is deprived of the fruits of the decree and is prevented from getting the vacant possession of the suit premises along with mesne profit. The appellate court has further taken note of the fact that though the appeal had been filed on 06.05.2004, till the year 2009, the same has not been finally decided. Thus, the owner of the suit property has been prevented from getting vacant possession of the suit premises for over five years. Reference was made to the decision of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M. P. and others, 2003 Supreme 539, as well as other decisions of the Supreme Court which find reference in the impugned order. Before the appellate court, it had been contended on behalf of the petitioner that the respondent had not prayed for the relief of mesne profit during the pendency of the suit, and hence, at the appellate stage, he is not entitled to mesne profit. The appellate court observed that this was an application for modification of the order as to attract the Page 4 of 35 HC-NIC Page 4 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT equitable doctrine of the restitution to the person who is deprived of fruits of the decree by virtue of the court's order. According to the appellate court, the person who has got the advantage by interim order of the court whereby the other side is put to a disadvantage by virtue of that order, and hence, such person is required to be placed in the original position by way of restitution and compensation. The appellate court further observed that this was not an application for getting the mesne profit. The court referred to the decision of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705, and found that a similar situation prevailed in the facts of the present case, except that the order for depositing payment of amount per month had not been made. The appellate court after considering the facts of the case and after referring to the document vide mark 19/1 which indicates that the premises situated nearby the suit premises was rented for amount of Rs.19,600/- per month in the year 2004, thought it appropriate to modify the previous order dated 20.12.2004 passed below Exhibit-5 by adding a condition of depositing Rs.5,000/- per month in the court as compensation from the date of that order.
6. Mr. Mehul Shah, learned advocate for the petitioners assailed the impugned order by inviting the attention of the court to the operative part of the order dated 28.12.2004 passed below Exhibit-5 in Regular Civil Appeal No.192 of 2004, to point out that the court had granted stay of the judgment and decree passed by the trial court till the final hearing of the appeal. It was submitted that the said order has become final as the same has not been challenged before the higher forum Page 5 of 35 HC-NIC Page 5 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT and that at that point of time when such order came to be passed, the respondent herein had all the opportunities of raising all available defences. It was submitted that the decisions of the Supreme Court on which reliance has been placed by the appellate court while modifying the previous order are to the effect that while granting stay, the court has to maintain a balance, whereas in the present case, at the time when the application Exhibit-5 came to be heard, no submission was advanced on behalf of the respondent for depositing any amount during the pendency of the appeal and the appellate court having regard to the submissions advanced before it had passed by the interim order. Accordingly, the matter having been decided and having attained finality would operate as constructive res judicata under section 11 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code"). It was submitted that the principle of constructive res judicata also applies to different stages of the suit. It was submitted that the respondent could have agitated this point when the stay was sought for and when the court was examining all available grounds, if this ground could have been made a ground for defence in his application for stay, even if such ground was not specifically raised, it would operate as a ground which was deemed to have been raised and not granted. The attention of the court was invited to the provisions of section 11 of the Code and more particularly, to Explanation-IV thereto, which says that any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. It was submitted that therefore, this was a ground of defence at the stage of the application Exhibit-5. The application Exhibit-5 was decided in Page 6 of 35 HC-NIC Page 6 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT December, 2004, whereas this application has been made in the year 2005. It was submitted that if there is a subsequent event having a material bearing, it could be a ground for variation in view of the provisions of rule 4 of Order XXXIX of the Code, however, in the absence of any subsequent event having occurred there was no ground for variation of the previous order.
6.1 Reference was made to the application at Exhibit-18 filed by the respondent and more particularly, to paragraph 4 thereof, to submit that the only ground put forth by the respondent is that the earlier order does not contain any such condition. It was submitted that in effect and substance, what the respondent seeks is a review of the previous order which is not permissible in law. The attention of the court was invited to the reply filed by the petitioner in response to the application Exhibit-15 to point out that the petitioner had specifically taken a contention that if the respondent was aggrieved by the order passed by the appellate court of not imposing any condition for grant of stay, it was for the respondent to challenge such order before the higher forum. Moreover, in response to the application Exhibit-5 as well as during the course of hearing thereof, no claim had been made for Rs.30,000/- by way of compensation during the pendency of the appeal. It was pointed out that in the reply itself, the petitioner herein had distinguished between the facts of case in the decision of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705, and the facts of the present case, viz., at the time when the applicant therein had opposed the grant of stay by the Rent Control Tribunal, he had requested that an amount of Page 7 of 35 HC-NIC Page 7 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT Rs.15,000/- to be directed to be deposited as a condition for grant of stay. It was submitted that therefore, the facts of the case before the Supreme Court being different, the same would have no applicability to the facts of the present case.
6.2 Mr. Shah further pointed out that there was no basis for the appellate court for directing the petitioner herein to deposit Rs.5,000/- per month by way of compensation to the respondent. It was submitted that the application at Exhibit-18 is too premature at this stage to conclusively believe only on the basis of such solitary document which is not proved. Under the circumstances the appellate court was not justified in passing the impugned order relying on such solitary document and imposing a condition subsequent to the order passed below Exhibit-5. It was submitted that neither at the time of hearing of the stay application had the respondent pressed the ground, nor is he aggrieved by any of the findings of the trial court as regards the determination of mesne profit. It was submitted that a decree for standard rent and a decree for mesne profit has altogether a different complexion. In fact, in the plaint also, the only prayer was for Rs.25/- per month by way of mesne profit. Reference was made to the decision of the Supreme Court in the case of Erach Boman Khavar v. Tukaram Shridhar Bhat and another, AIR 2014 SC 544, for the proposition that it is well settled in law that the principle of res judicata applies even to two stages of same litigation but the question or issue involved must have been decided at earlier stage of the same litigation. It was submitted that in the facts of the present case, there is nothing new which could not be urged at the time of hearing of the application-Exhibit-5 and therefore, the respondent is now precluded from urging Page 8 of 35 HC-NIC Page 8 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT this point. Referring to the impugned order passed by the appellate court, it was submitted that the court has proceeded on the premise that the respondent is entitled to restitution in terms of the provisions of section 144 of the Code. It was submitted that the only test is whether such a contention was available to the respondent. According to the learned counsel, the provisions of section 144 of the Code would not apply in the facts of the present case and therefore, the whole basis of applying section 144 of the Code for the purpose of modifying the order passed below Exhibit-5 is misconceived. Referring to the provisions of section 144 of the Code, it was submitted that a restitution application can be decided by the court of first instance which passed such decree or order. The attention of the court was invited to sub-section (2) of section 2 of the Code, which defines "decree" to point out that the same includes the determination of any question within section 144. It was submitted that therefore, the application at Exhibit-18 was premature and that section 144 of the Code could not have been applied at this stage. The learned counsel submitted that there is another inconsistency in the case of the respondent, inasmuch as, at the end of the appeal, even if the petitioner's appeal is either allowed or dismissed, the mesne profit would remain the same, namely, Rs.25/- per month only. Therefore, something which could not be done at the end of the trial cannot be done pending the appeal as that would result in inconsistency between the interlocutory and final order in the appeal. Therefore, the claim has to be decided on merits by adjudicating the same on the basis of the evidence led by the parties and it is only thereafter that, the court can adjudicate this aspect. It was pointed out that in the matter before the Supreme Court, everything was proved Page 9 of 35 HC-NIC Page 9 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT before the trial court and the evidence which was already adduced before the trial court was only applied by the Supreme Court. It was submitted that while considering the application at Exhibit-5 filed by the petitioner, the court had exercised its discretion in favour of the petitioner and in the absence of anything to show that the discretion exercised in favour of the petitioner is palpably perverse or impermissible, it was not permissible for the appellate court to modify the previous order passed below Exhibit-5. It was, accordingly, submitted that the impugned order deserves to be quashed and set aside and the petition deserves to be allowed.
7 Vehemently opposing the petition, Mr. K. V. Shelat, learned advocate for the respondent submitted that the principle of res judicata will not be applicable to the facts of the present case inasmuch as under the provisions of Order XXXIX rule 4 of the Code on account of change of circumstances, an order can be modified by the appellate court. It was submitted that the application Exhibit-18 made by the respondent is not under section 144 of the Code, but is based upon the principle akin to restitution and that the principle of restitution, per se, as envisaged under section 144 of the Code has not been invoked and that it is only the principle of restitution that is made applicable and not the provisions thereof. It was submitted that the judicial pronouncements say that once there is an eviction decree, the tenant has no right to continue. Therefore, an obligation is cast upon the court to see that the landlord is not deprived of the available market rent on the date of the appeal and that the court while exercising its discretion has its own yardstick for determining the market rent.
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7.1 Mr. Shelat further submitted that the appellate court while deciding the application at Exhibit-5 had not imposed any condition, but had directed that the appeal be disposed of expeditiously. However, though the matter had been fixed for final hearing, the same was not actually taken up for hearing and hence, the same can be said to be changed circumstance as envisaged under rule 4 of Order XXXIX of the Code.
7.2 Reference was made to the decision of the Supreme Court in the case of R. K. Bansal v. Jag Pravesh Sharma, 2012 (0) GLHEL-SC 52005, wherein the court had observed that in a landlord tenant matter, it is the bounden duty and obligation of the court to ensure that the landlord gets rent which is akin to market rent. The court observed that the High Court was quite justified in increasing the rent from Rs.175/- to Rs.25,000/- in view of the facts of the case. Reliance was also placed upon the decision of the Supreme Court in the case of Mohammad Ahmad and another v. Atmaram Chauhan and others, (2011) 7 SCC 755, wherein while considering the application for stay, the learned Single Judge directed that the appellants therein will not be dispossessed from the shops in dispute provided that with effect from September 2005 onwards, they pay the respondents No.1 to 3 therein rent at the rate of Rs.600/- per month by the seventh of each succeeding month. Subsequently, when the matter came up for hearing before the court in the year 2007, on behalf of the respondents, it was submitted that the rent of the shop was too meagre looking to the present rent available for other similarly situated shops. The learned Single Judge after considering the submissions of the parties, thought it fit to Page 11 of 35 HC-NIC Page 11 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT enhance the rent from Rs.600/- per month for both the shops to Rs.2100/- per month payable from February, 2007. The Supreme Court observed that while working out the rental from Rs.600/- per month to Rs.2100/- per month for two shops, the learned Single Judge has applied his own yardstick and that the said yardstick appears to be absolutely correct and perfect method of working out the present market rental of the premises. Mr. Shelat, accordingly, submitted that the appellate court has applied its own yardstick and after considering the documents produced on record indicating that the rent fetched by the nearby premises was Rs.19,600/- per month, applied its own yardstick and directed payment of Rs.5,000/- per month. Therefore, the yardstick adopted by the appellate court, cannot be said to be perverse or impermissible in law.
7.3 Insofar as the applicability of rule 4 of Order XXXIX of the Code, Mr. Shelat submitted that there are two changed circumstances. Firstly, that though the court had fixed the matter for final hearing, the matter was not actually taken up for final hearing and secondly, in the year 2005, the Supreme Court for the first time laid down the principle regarding restitution in case of a landlord when a eviction decree is passed in his favour. It was pointed out that though the matter was fixed for hearing in the year 2005, it was not heard and that series of adjournments were taken by the tenant with serious objections being raised by the landlord. The attention of the court was invited to the averments made in the memorandum of the application filed at Exhibit-18, to submit that such facts were duly brought to the notice of the appellate court. It was submitted that therefore, having regard to the changed circumstances, namely, the final hearing was not Page 12 of 35 HC-NIC Page 12 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT concluded and that there was an exposition of law to the effect that once there is an eviction decree, the tenant cannot continue on a contractual rent, the appellate court was wholly justified in entertaining the application at Exhibit-18 and modifying the order passed below Exhibit-5. It was urged that while granting stay in favour of the petitioner, the appellate court did not impose any condition despite an obligation being imposed upon it, and that grant of the same would not preclude the respondent from filing an application for modification of the order passed below Exhibit-5. It was emphatically argued that once an order is passed by the appellate court, this court would not interfere in exercise of powers under Article 227 of the Constitution of India since there is no illegality or perversity in the impugned order, nor does the same suffer from any lack of jurisdiction. Reliance was placed upon the decision of the Supreme Court in the case of State of Maharashtra and another v. Super Max International Private Limited and others, (2009) 9 SCC 772, for the proposition that in an appeal or revision, stay of execution of the decree passed by the court below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the court, to decline to grant any stay or to grant stay subject to some reasonable condition. In case stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant in revision will not have the protection of any of the provisions under the Rent Act and in all likelihood would be evicted before the revision is finally decided. In the event the revision is allowed later on, the tenant's remedy would be only by way of restitution. The court also placed reliance upon its previous decision in the case of Atma Ram Properties (P) Page 13 of 35 HC-NIC Page 13 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT Ltd. v. Federal Motors (P) Ltd. (supra) and held that in an appeal or revision preferred by a tenant against an order or decree of 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.
7.4 The decision of the Supreme Court in the case of Anderson Wright & Co. v. Amar Nath Roy and others, (2005) 6 SCC 489, was also cited wherein the court relied upon its previous decision in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra) and held that the appellant therein should, from the date of the decree of the eviction, pay mesne profits/compensation for use and occupation at the rate of Rs.15/- per square feet subject to final determination of the same by a competent forum. Mr. Shelat submitted that therefore, the consistent view taken by the Supreme Court in a catena of decisions is that in case where the landlord has succeeded and a decree of eviction has been passed, during the pendency of the appeal while granting stay, a condition for payment of compensation/mesne profit should be imposed. Reference was also made to the decision of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M. P. and others, (2003) 8 SCC 648, wherein the court has held that section 144 of the Civil Procedure Code is not the fountain source of restitution, it is rather a statutory recognition of a pre-existing rule of justice, equity and fair play. That is why, it is often held that even away from section 144, the court has inherent jurisdiction to order restitution so as to do complete justice between the parties. The court held that the principle of restitution has been Page 14 of 35 HC-NIC Page 14 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT statutorily recognized in section 144 of the Code. Section 144 speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. It was submitted that it is this principle which has been taken into consideration by the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra). It was pointed that the court after referring to the above decision in the case of South Eastern Coalfields Ltd. v. State of M. P. and others (supra), was of the opinion that while granting an order of stay under Order XLI Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would in its opinion 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. It was, accordingly, urged that there being no infirmity in the impugned order, there is no warrant for interference by this court.
8 In rejoinder, Mr. Mehul Shah, learned advocate for the petitioner submitted that the order passed below Exhibit-18 suffers from lack of jurisdiction, inasmuch as, once the application at Exhibit-5 had been decided, the court did not Page 15 of 35 HC-NIC Page 15 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT have any jurisdiction to entertain the application at Exhibit-18 without the circumstances as envisaged under rule 4 of Order XXXIX of the Code being satisfied. It was further submitted that a subsequent judgment of the Supreme Court is no ground for review and that insofar as the contention that the appeal was not heard expeditiously is concerned, no finding has been recorded by the appellate court that the petitioner was delaying the litigation. Therefore, neither of the two contentions put forth on behalf of the respondent for taking shelter behind rule 4 of Order XXXIX of the Code fall within the purview of the expression "changed circumstances". Reference was made to the decision of the Supreme Court in the case of P. K. Vijayan v. Kamalakshi Amma and others, AIR 1994 SC 2145, wherein, the court had observed that the plea of entitlement under section 106 of the Land Reforms Act was available to the appellant in the eviction proceedings and if it would have been raised, the Rent Controller would have had no jurisdiction to proceed further but to refer the same to the Land Tribunal for decision under section 125(3) of the Land Reforms Act. However, the appellant merely chose to deny the title of the landlords and did not raise the plea of section 106 of the Land Reforms Act. The court held that the rule of might and ought envisaged under Explanation IV to section 11 of the Code squarely applied to the facts of the case and that therefore, it was no longer open to the tenant to plead that the Civil Court had no jurisdiction to decide the matter and it shall be required to be referred to the Land Tribunal. Mr. Shah further submitted that the application filed by the petitioner at Exhibit 18 is not an application under rule 4 of Order XXXIX of the Code and that the same is in the nature of an application under rule 5 of Order XLI of the Code. It was submitted that the Page 16 of 35 HC-NIC Page 16 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT provisions of rule 4 of Order XXXIX of the Code would not be applicable to the facts of the present case, inasmuch as, the application filed by the petitioner before the appellate court was an application for stay under rule 5 of Order XLI of the Code and not an application under rule 4 of Order XXXIX of the Code. It was submitted that since originally there was no injunction under rule 1 of Order XXXIX of the Code, the question of variation of the injunction by resorting to the provisions of rule 4 of Order XXXIX of the Code does not arise. It was further submitted that the appeal is at the stage of arguments and that the written submissions have already been tendered by the parties and hence, at this stage, when the impugned order has been stayed till date, there is no warrant for passing any order at this stage and it may be left to the appellate court to decide on the question as to whether the respondent is entitled to the grant of any compensation for the period during the pendency of the appeal in case he succeeds in the appeal. The attention of the court was invited to the written submissions submitted by the petitioner before the appellate court to submit that a point for determination had been proposed for deciding the question as to whether the respondent herein is entitled to payment of Rs.5,000/- by way of interim compensation during the pendency of the appeal. It was urged that it is also permissible for the respondent herein to submit before the appellate court to frame appropriate points of determination to resolve the dispute involved in the present case and that at this stage of the proceedings, this court may not disturb the position as prevailing and leave the matter to the discretion of the appellate court.
9 This court has considered the submissions advanced by
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the learned counsel for the respective parties and has perused the record and proceedings as produced before the court as well as the decisions cited by the learned counsel for the respective parties.
10 From the facts as noted hereinabove, it is apparent that along with the appeal preferred by him before the appellate court, the petitioner had filed an application at Exhibit-5 for staying the judgment and decree passed by the trial court. By an order dated 20.12.2004, the stay application was allowed whereby, the judgment and decree passed by the trial court was stayed and the appeal was ordered to be expedited. Thereafter, on 28.12.2005, the respondent herein filed an application at Exhibit-18 stating that he had instituted the suit being Suit No.213 of 1989 and at the end of a period of fifteen years; he had succeeded on merits and obtained a decree for getting actual possession of the suit property. That the statutory tenancy stood terminated in view of the decree of eviction and thereafter, the possession of the tenant became unauthorized. It was further the case of the respondent that the tenant who files appeal is not entitled to stay of the decree and such person who seeks equity is required to do equity. The appellate court is, therefore, required to ensure that the decree holder who is deprived of possession of the suit property and is thereby deprived of the fruits of the decree in view of the interim order, is protected by imposing reasonable conditions on the appellant to ensure that when the interim order is reversed, there is immediate restitution and for the period when the unauthorized occupation continued, the successful party obtains reasonable compensation and it is only with such condition that the interim protection can be granted and that Page 18 of 35 HC-NIC Page 18 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT for this purpose, the contractual rent cannot be said to be requisite consideration. The respondent has referred to the decision of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra) and has further stated in the application that the suit property is situated in the commercial heartbeat of Dahod city and the prevailing rent of similar premises is Rs.20,000/- to Rs.30,000/- per month and the respondent is deprived of the fruits thereof, which cannot be said to be just. That while staying the judgment and decree passed by the trial court, no such condition for payment of market rent had been imposed and hence, the present application has been filed with a view to impose a condition that the stay shall be extended subject to such condition. The respondent has further prayed that the petitioner be directed to deposit a sum of Rs.30,000/- per month. It is further stated that the court had directed that the matter be listed on board in July 2005 and that the appeal be disposed of. However, the petitioner has not taken any bona fide steps in that direction. In the aforesaid background, the respondent prayed that the petitioner/appellant be directed to pay Rs.30,000/- per month from the date of the appeal till date for a period of eighteen months, in all Rs.5,40,000/- by way of compensation and upon such amount being deposited, the order passed below Exhibit-5 would remain in force and accordingly, the application be allowed. It was further the case of the respondent that otherwise also, independently, in view of the above legal position, such order is required to be passed. The respondent has further prayed that till the appeal is decided, the petitioner be directed to regularly deposit Rs.30,000/- per month with the court.
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11 The appellate court, in the impugned order, has observed that while filing an appeal is the right of the appellant, granting stay is within the discretionary powers of the court and while exercising such discretionary powers, the court should strike a balance between the parties as the relief is an equitable relief. The court has observed that the suit was filed in the year 1989 and the respondent succeeded in the year 2004, after a period of thirteen years and that in view of the order passed by the appellate court below Exhibit-5, the respondent is deprived of the fruits of the decree and is prevented from getting the possession of the suit premises along with mesne profit. The appellate court further observed that the appeal was filed on 06.05.2004 and till the year 2009, it was not decided and the respondent was prevented from getting vacant possession of the suit premises for a period of five years on account of the act of the court. The court further referred to the decision of the Supreme Court in the case of South Eastern Coalfields Ltd. v. State of M. P. and others (supra) for the proposition that even away from section 144 of the Code, the court has inherent powers to order restitution so as to do complete justice. The appellate court further referred to the decisions of the Supreme Court in the case of Union Carbide v. Union of India, AIR 1992 SC 248 and in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra) and observed that the case at hand is quite similar to the case of Atma Ram Properties (P) Ltd. in situation and was of the view that the said decision is applicable to the present case. Dealing with the contention raised on behalf of the petitioner that the respondent had not asked for the relief of mesne profit during the pendency of the suit and now at the appellate stage, he is not entitled to get mesne profit, the appellate Page 20 of 35 HC-NIC Page 20 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT court observed that looking to the application at Exhibit-18, it cannot be said that the respondent has asked for mesne profit which he has not claimed in the suit. The court further observed that the application at Exhibit-18 is an application for modification in the order so as to attract the equitable doctrine of restitution to the person who is deprived of the fruits of the decree by virtue of the court's order. The court further observed that the situation in the present case was the same as in the case of Atma Ram Properties except the order for depositing the money per month. The appellate court referred to the document produced vide Mark 19/1, which shows that the premises situated near the suit premises are rented for Rs.19,600/- per month in the year 2004 and thereafter, without any further discussion, thought it fit to modify the order dated 20.12.2004 passed below Exhibit-5 by adding "subject to deposit of Rs.5,000/- before the 10th day of every month in the court by the appellant as compensation from the date of order" in paragraph No.1 of the said order.
12 Thus, by the impugned order, the appellate court has modified the previous order by imposing a condition which the court at the relevant time when the order was passed, did not think it fit to impose. The question that arises for consideration is whether in the facts and circumstances of the present case, it was permissible for the appellate court to subsequently modify its earlier order.
13 In the present case, the appellate court had passed the order dated 20.12.2004 below Exhibit-5 staying the judgment and decree passed by the trial court in exercise of powers under rule 5 of Order XLI of the Code, which reads thus:
Page 21 of 35HC-NIC Page 21 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT "5. Stay by Appellate Court. (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree;
but the Appellate Court may for sufficient cause order stay of execution of such decree.
Explanation.-An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.
(2) Stay by Court which passed the decree. - Where an application is made for stay of execution of an appeal able decree before the expiration of the time allowed for appealing there from, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.
(3) No order for stay of execution shall be made under sub- rule (1) or sub-rule (2) unless the Court making it is satisfied-
(a) that substantial loss may result to the party applying for stay of execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.
(4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing Page 22 of 35 HC-NIC Page 22 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree."
14 Reference may also be made to the provisions of rule 4 of Order XXXIX of the Code on which reliance has been placed by the learned counsel for the respondent, which reads thus:
"4. Order for injunction may be discharged, varied or set aside. - Any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order:
Provided that if in an application for temporary injunction or in any affidavit supporting such application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interest of justice:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless the Court is satisfied that the order has caused undue hardship to that party."
15 On a plain reading of the above provisions, what emerges is that under rule 4 of Order XXXIX of the Code, an injunction granted by the court can be discharged or varied or set aside, whereas rule 5 of Order XLI of the Code makes provision for stay of proceedings under a decree or order appealed. An injunction is an order restraining a person from doing a thing; whereas stay of operation of an order means that the order Page 23 of 35 HC-NIC Page 23 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT which has been stayed will not be operative till such stay is continued. Therefore, when an order of injunction whereby a person is restrained from doing something is passed, the court if it is satisfied that such order causes undue hardship to that party, it can vary, discharge or set aside the same on an application from such party. However, a stay order merely stays the operation of an order in favour of such party; consequently, the party is deprived of the benefit of such order. Nonetheless, as held by the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra), while granting stay of the decree, it is always open for the appellate court, if it so thinks fit to impose a condition with regard to payment of market rent per month. However, the stage for imposing such condition is at the time of making the order granting such stay. In the facts of the present case, undisputedly, while granting the stay order, the appellate court, after hearing the respective parties, did not deem it fit to impose any such condition, nor did the respondent request the court to impose such condition. Under the circumstances, the central question that arises for consideration is whether it was permissible for the appellate court to modify its previous order and impose a condition for payment of a monthly amount of Rs.5,000/-, that too, with effect from the date of the earlier order on the principle of restitution, as has been done in the present case.
16 Before adverting to the merits of the above question, reference may be made to the decisions cited by the learned counsel for the respective parties.
17 In South Eastern Coalfields Ltd. v. State of M. P. Page 24 of 35 HC-NIC Page 24 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT and others (supra), the Supreme Court while considering the principle of restitution, held thus:
"27. Section 144 of the C.P.C. is not the fountain source of restitution; it is rather a statutory recognition of a pre- existing rule of justice, equity and fair play. That is why it is often held that even away from Section 144 the Court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari (1922) 49 LA. 351, their Lordships of the Privy Council said:
"It is the duty of the court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved."
Cairns, L.C., said in Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C.:
"One of the first and highest duties of all courts is to take cars that the act of the court does no injury to any of the suitors and when the expression, the act of the court is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole from the lowest court which entertains jurisdiction over the matter up to the highest court which finally disposes of the case".
This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it, A.A. Nadar v. S.P. Rathinasami, (1971) 1 MLJ 220. In the exercise of such inherent power the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the 'act of the court' embraces within its sweep all such acts as to which the court may form an opinion in any legal Page 25 of 35 HC-NIC Page 25 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. The factor attracting applicability of restitution is not the act of the court being wrongful or a mistake or error committed by the court; the test is whether on account of an act of the party persuading the court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage which it would not have otherwise corned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the set of such party. The quantum of restitution, depending on the facts and circumstances of a given case, may take into consideration not only what the party excluded would have made but also what the party under obligation has or might reasonably have made. There is nothing wrong in the parties demanding being placed in the same position in which they would have been had the court not intervened by its interim order when at the end of the proceedings the court pronounces its judicial verdict which does not match with and countenance its own interim verdict. Whenever called upon to adjudicate, the court would act in conjunction with what is the real and substantial justice. The injury, if any, caused by the act of the court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the court would be restored to or conferred on the party by suitably commanding the party liable to do so. Any opinion to the contrary would lead to unjust if not disastrous consequences. Litigation may turn into a fruitful industry. Though litigation is not gambling yet there is an element of chance in every litigation. Unscrupulous litigants may feel encouraged to approach the courts, persuading the court to pass interlocutory orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced, we are, therefore, or the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.
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29. Once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978."
18 In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra), the Supreme Court held thus :
"...... .... 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. .... ...."
"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 tenant-appellant 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 tenant- appellant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is Page 27 of 35 HC-NIC Page 27 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT 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 In R. K. Bansal v. Jag Pravesh Sharma (supra), the Supreme Court was dealing with a case where at the time of hearing the stay application, the landlord had pointed out that the market rent of the suit property would be around Rs.50,000/- per month. The Supreme Court found that the High Court was justified in increasing the rent from Rs.175/- to Rs.25,000/- in view of the facts of the case. In Mohammad Ahmad v. Atmaram Chauhan (supra), the Supreme Court was dealing with a case where the tenant had agreed to enhancement but was aggrieved by the enhanced amount. The High Court worked out the rental of two shops at Rs.2100/- per month. The Supreme Court observed that it was true that the learned Single Judge has applied his own yardstick in working out the rent but only after both the parties' contentions were taken into account and the said yardstick appears to be absolutely correct and perfect method of working out the present market rental of the premises. In Anderson Wright & Co. v. Amar Nath Roy (supra), the Supreme Court while granting leave to appeal, had stayed the decree of eviction. In the said proceedings, the respondent filed an application seeking a direction to the appellants to pay an amount of Rs.1,80,000/- per month during the hearing of the appeal. Before the Supreme Court, both the parties filed affidavit and counter affidavit placing on record material giving Page 28 of 35 HC-NIC Page 28 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT the court an idea of the rate of rent generally prevalent in the locality where the suit property was situated. Taking an overall view of the material made available by the parties, the Supreme Court was of the view that the appellants should, from the date of the decree of the eviction, pay mesne profits/compensation for use and occupation @ Rs.15/- per square feet subject to final determination of the same by a competent forum. In State of Maharashtra v. Super Max International Private Limited (supra), the High Court after hearing the parties, stayed the execution of the decree subject to the condition that the appellant would deposit a sum of Rs.5,40,000/- every month commencing from the date of the decree passed by the trial court.
20 A common thread which runs through all the above decisions is that the condition for payment of market rent was imposed at the time of granting the stay order. Here lies the distinction between those cases and the present one. In the case at hand, the respondent had appeared before the appellate court on caveat and had also filed a written statement against the stay application. During the course of hearing of the application, it had been contended on behalf of the respondent that after a period of sixteen years, the respondent had got a decree in his favour and that grant of injunction at this stage would cause him undue hardship. The appellate court, after considering the contentions advanced on behalf of the respective parties, by an order dated 20.12.2004, allowed the application and did not think it fit to impose any condition for depositing any amount, and neither did the respondent request the appellate court to direct the petitioner to pay mesne profit or compensation. The appellate court, Page 29 of 35 HC-NIC Page 29 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT after considering the submissions of the respective parties, thought it fit to merely expedite the hearing of the appeal. Subsequently, armed with a decision of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra), the respondent approached the appellate court by way of the application at Exhibit-18, the contents whereof have been extensively referred to hereinabove. The respondent has not referred to any provision of law under which the said application has been made, whereas the appellate court has treated the same as an application for modification. Since, under the Scheme of the Civil Procedure Code, there is no provision for modification of an order, it can be safely presumed that the respondent had invoked the inherent jurisdiction of the court under section 151 of the Code. From the findings recorded by the appellate court, it is apparent that the appellate court has found that on account of the previous order passed by it below Exhibit-5, the respondent was deprived of the fruits of the decree. Therefore, in effect and substance, the appellate court was satisfied that the previous order granting stay without imposing any condition for payment of market rent during the pendency of the appeal was to that extent erroneous. However, what the appellate court has failed to appreciate is that an erroneous order can be corrected by the higher forum when such order is challenged before it. Inherent powers cannot be exercised for correcting an erroneous order, which has been passed after bipartite hearing and on the basis of submissions advanced on behalf of the respective parties, more particularly the modification being based upon a submission that could and ought to have been made at the time of hearing of the stay application, but was not made. In the absence of any challenge Page 30 of 35 HC-NIC Page 30 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT to the said order, such order, which was passed after hearing the concerned parties, had attained finality and could not have been modified subsequently. As rightly contended by the learned counsel for the petitioner, the contention raised in the application at Exhibit-18 could have been raised and argued at the time of hearing of the application at Exhibit-5, however, the respondent having failed to do so, the present application at Exhibit-18 seeking a direction which could have been sought for at the time when the previous order came to be passed, is barred by the principle of constructive res judicata. This court finds force in the submission advanced by the learned counsel for the petitioner that a subsequent judgment of the Supreme Court merely explains the law as it stood and cannot be a ground for reopening a concluded matter.
21 Besides, as noted hereinabove, the order passed by the appellate court was in exercise of powers under rule 5 of Order XLI of the Code and not under rule 4 of Order XXXIX of the Code. Therefore, the contingencies contemplated under rule 4 of Order XXXIX of the Code cannot be applied to an order under rule 5 of Order XLI of the Code. Assuming for the sake of argument that the provisions of rule 4 of Order XXXIX of the Code could be made applicable to an order passed in exercise of powers under rule 5 of Order XLI of the Code, the second proviso to rule 4 of Order XXXIX of the Code says that where an order of injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on an application of that party except where such discharge, variation or setting aside has been necessitated by a change in circumstances, or unless the court is satisfied that the order has caused undue hardship to Page 31 of 35 HC-NIC Page 31 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT that party. In the present case, it cannot be said that the variation of the stay order has been necessitated by a change in circumstances inasmuch as, mere passage of time, without anything more, cannot be said to be a changed circumstance. Moreover, the application at Exhibit-18 was made after a period of one year of the passing of the previous order. Insofar as the question of hardship is concerned, the appellate court has observed that the very order granting stay has caused hardship which cannot be said to be a valid reason as at the relevant time when the order was passed, it was not even the case of the respondent that market rent should be paid during the pendency of the appeal and that non-grant of such relief would cause hardship to him. Thus, the position as on the date of the passing of the previous order and the date of the application at Exhibit-18 was the same and therefore, it cannot be said that the previous order caused any hardship within the meaning of such expression as contemplated under the second proviso to rule 4 of Order XXXIX of the Code.
22 Another aspect of the matter is that the appellate court has allowed the application at Exhibit-18 on the principle of restitution. Under the Code of Civil Procedure, section 144 makes the provision for restitution and reads as under:
"144. Application for restitution.- (1) Where and in so far as a decree or an order is a varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or a[such part thereof as has been varied, reversed, set aside or Page 32 of 35 HC-NIC Page 32 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT modified] and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly a consequential on such variation, reversal, setting aside or modification of the decree or order.
Explanation.- For the purposes of sub-section (1), the expression "Court which passed the decree or order" shall be deemed to include,-
(a) where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the Court of first instance which passed such decree or order;
(c) where the Court of first instance has ceased to exist or has ceased to have jurisdiction to execute it, the Court which, if the suit wherein the decree or order was passed were instituted at the time of making the application for restitution under this section, would have jurisdiction to try such suit.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1)."
It has been contended on behalf of the respondent that in the present case, the principle akin to restitution and not restitution under section 144 of the Code has been invoked. In the opinion of this court, the principle of restitution can be invoked upon culmination of the proceedings and not in the midst thereof. In the present case, in view of the stay order passed by the appellate court, the respondent has been deprived of the use of his property and hence, if ultimately the appeal is decided in favour of the applicant, he can, thereafter, invoke the principle of restitution and seek compensation for being deprived of the use of the property during the pendency of the appeal. However, at an interim stage, the principle of Page 33 of 35 HC-NIC Page 33 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT restitution cannot be invoked.
23 In the light of the above discussion, the court is of the view that the appellate court was not justified in invoking the principle of restitution and partly allowing the application at Exhibit-18 made by the respondent and modifying the earlier order passed by it by imposing a condition for depositing Rs.5,000/- per month by way of market rent during the pendency of the appeal.
24 As pointed out by the learned counsel for the petitioners, the appeal is at the stage of submitting written submissions and hence, is likely to be decided in a short while and during the pendency of this petition, this court by a reasoned order dated 20.01.2010, had stayed the impugned order. Therefore also, there is no warrant for interference by this court at this stage. However, with a view to balance the equities, it would be in the interest of justice if it is ordered that the appellate court while deciding the appeal, shall also frame an additional point of determination as to whether the respondent is entitled to compensation during the pendency of the appeal for being deprived of the use of the suit premises. If the said question is answered in the affirmative, the court would be required to decide the amount of compensation to be paid to the respondent, for which purpose the parties would be required to lead necessary evidence.
25 In the light of the above discussion, the petition succeeds and is, accordingly, allowed. The impugned order dated 17.12.2009 passed by the learned Additional District Judge, Dahod below Exhibit-18 in Regular Civil Appeal No.192 of 2004, Page 34 of 35 HC-NIC Page 34 of 35 Created On Tue Oct 13 02:01:21 IST 2015 C/SCA/380/2010 JUDGMENT is hereby quashed and set aside. It is hereby ordered that the appellate court shall frame a point of determination as to whether the respondent is entitled to compensation during the pendency of the appeal for being deprived of the use of the suit premises as well as the amount of such compensation. Having regard to the facts and circumstances of the case, the appellate court is requested to decide the appeal within a period of two months from the date of receipt of a copy of this order, after giving the parties a reasonable opportunity of producing material with regard to the prevailing market rate so as to determine the quantum of compensation payable to the respondent. Rule is made absolute accordingly with no order as to costs.
26 It is clarified that any observation made in this judgment is only for the purpose of deciding the controversy in issue before this court and the same shall have no bearing on the final outcome of the appeal and shall in no manner, prejudice the case of either of the parties in the proceedings before the appellate court. The appellate court shall decide the appeal in accordance with law, without in any manner being influenced by any observation made in this judgment.
(HARSHA DEVANI, J.) parmar* Page 35 of 35 HC-NIC Page 35 of 35 Created On Tue Oct 13 02:01:21 IST 2015