Calcutta High Court (Appellete Side)
Austin Distributors (P) Limited vs Sri Sri Iswar Ganesh Chandra Jiu & Others on 12 April, 2012
Author: Tapan Kumar Dutt
Bench: Tapan Kumar Dutt
1
12.04.2012
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
S.A.98 of 2011
With
CAN 2548 of 2011
Austin Distributors (P) Limited.
.... Appellant
- Versus -
Sri Sri Iswar Ganesh Chandra Jiu & Others.
...... Respondents
Mr. S.P. Roy Chowdhury, (Sr. Advocate)
Mr. S. Talukdar,
Mr. A. Chowdhury,
Mr. S. Basu.
.... For the Petitioner.
Mr. Ranjan Deb, (Sr. Advocate)
Mr. Ashis Kr. Chakraborty,
Mr. Arindam Mukherjee.
.... For the Opposite Party.
TAPAN KUMAR DUTT, J.
This Court has heard the learned Advocates for the respective parties in respect of the application being CAN 2548 of 2011.
2The respondents had filed the eviction suit concerned against the appellant and in such suit the respondents had also prayed for mesne profits. The learned trial Court by its judgment and decree dated 10th June, 2009 decreed the said suit by granting a decree for ejectment of the appellant from the suit property and the appellant was directed to deliver vacant peaceful possession of the suit property in favour of the respondents within 30 days from the date of the said judgment and decree. The learned trial Court also passed an order of mesne profits which may be determined in terms of the provisions of Order 20 Rule 12 of the Civil Procedure Code. The appellant filed the title appeal concerned against the judgment and decree passed by the learned trial Court and the learned lower Appellate Court by judgment and decree dated 31st January, 2011 dismissed the said title appeal on contest. It further appears that a cross-appeal which was filed by the respondents was allowed and the findings of the learned trial Court with regard to the point No.3 was set aside and the judgment and decree passed by the learned trial Court was affirmed with 3 modification in light of the observations made by the learned lower Appellate Court.
Challenging the said judgment and decree passed by the learned lower Appellate Court the appellant has preferred the instant appeal.
The instant appeal has been admitted by an Hon'ble Division Bench of this Court by order dated 29th April, 2011. It appears that the present application for stay of all further proceedings in the ejectment execution case concerned was moved and the said Hon'ble Division Bench by the said order dated 29th April, 2011 was pleased to give directions for filing of affidavit-in- opposition and affidavit-in-reply. As it appears that the learned Advocate for the respondents had appeared before the Court on the said day and the Office was directed to incorporate the caveat in the records of the case. The Hon'ble Division Bench by the said order dated 29.4.2011 was pleased to direct that the application for stay should come up for hearing before the appropriate Bench and the said Hon'ble Court was pleased to grant stay of further proceedings in the ejectment execution case No.9 of 2009 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24- 4 Paraganas, during the pendency of the application. Their Lordships were pleased to clarify that the pendency of the appeal shall not prevent the learned Trial Judge from proceeding with the mesne profits-proceedings, but the said learned Trial Judge shall not pass the final order without the leave of this Court.
It appears from the submissions made by the learned Advocates for the respective parties that two Special Leave Petitions were filed before the Hon'ble Supreme Court of India. One of such Special Leave Petitions arose out of the order by which the said Hon'ble Division Bench of this Court was pleased to admit the appeal for hearing (petition for Special Leave to appeal (Civil) No. 25948 of 2011). The other Special Leave Petition arose out of the order by which the Hon'ble Division Bench of this Court was pleased to grant an unconditional interim order of stay of all further proceedings in the aforesaid ejectment execution case during the pendency of the present application for stay. The Hon'ble Supreme Court by order dated 17.10.2011 was pleased to pass the following order:
"Having considered the pleadings in the case, the materials placed on record and the submissions of 5 the learned Counsel, we do not find any merit in the Special Leave Petitions and hence the Special Leave Petitions are dismissed".
The said application for stay has, thereafter, come up for final hearing before this Court after the parties have filed their respective affidavits.
The learned Advocate appearing on behalf of the appellant/petitioner took the stand that the interim order dated 29.4.2011 should continue till the disposal of the appeal, but the learned Advocate appearing on behalf of the respondents took the stand that if this Court desires that the said interim order of stay should continue till the disposal of the appeal then in that event the appellant should be put on terms and the appellant should be directed to deposit the arrear occupation charges and also the current occupation charges in Court and such occupation charges should be calculated on the basis of present market rate.
It appears from the affidavit-in-opposition filed by the respondents that the suit premises is located in a commercial area in Kolkata and the present market rent that can be fetched from the suit property is Rs.16,40,000/- per month. The respondents have 6 annexed a report submitted by M/s. Talbot & Co. who are surveyors and valuers and it appears from the said report that the suit property can fetch a sum of Rs. 16,40,000/- per month as rent at present and for the purpose of valuation the said valuers/surveyors have made enquiries in the Office of the D.S.R.-III, South 24 Parganas.
The appellant in its affidavit-in-reply has dealt with the relevant paragraph in the affidavit-in- opposition with regard to the allegations made in the affidavit-in-opposition about the present market rate of rent that can be fetched from the suit property and the appellant has stated in its affidavit-in-reply that in the year 1947 when the suit property was let out to the appellant the suit property was a low lying area and was partly occupied by unauthorised occupants and the appellant/petitioner by spending substantial sums of money obtained vacant possession of the suit property and developed the same entirely and taking advantage of the development made by the appellant/petitioner the respondents are now wanting to reap the harvest thereof by entering into an agreement for development of the suit property with a third party. The appellant has 7 further stated that the allegations made by the respondents with regard to the probability of the suit property fetching the alleged rate of rent in present market conditions are irrelevant and the prevailing market rate with regard to the suit property is immaterial. It appears from the affidavit-in-reply that the appellant/petitioner has not come forward with any specific figure with regard to the rate of rent that the suit property can fetch in the present market conditions. It appears that in the plaint itself it has been stated that the income of the suit property is very meagre and all the plaintiffs for the purpose of having better income from the suit property have decided to construct a multistoried building through a developer and the plaintiffs will get 24/- per cent share out of the total area of the proposed building which will fetch much higher yield than the present income out of the suit premises.
The learned Advocate appearing for the respondents cited a decision reported at 2005(1) SCC 705 (Atma Ram Properties (p) Ltd. -V- Federal Motors(P) Ltd.) and referred to Paragraphs 16, 18 and 19 of the said reports. In Paragraph 16 of the said reports the Hon'ble Court was pleased to observe that the tenant 8 having suffered a decree or order for eviction may continue his fight before the superior forum but on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. The Hon'ble Court was further pleased to observe that in the case of the premises being governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. Paragraphs 18 and 19 are quoted below:
"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 appellant tenant 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 9 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 jurisdiction for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. Vs. Sahi Oretrans (p) Ltd. 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. 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 10 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
(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 11 stands merged in the decree passed by the superior forum at a latter date."
The said learned Advocate cited another decision reported at 2005(6)SCC 489 (Anderson Wright & Co. -V- Amar Nath Roy And Others) which considered the Atma Ram Properties (p) Ltd's case and the Hon'ble Court in the said reports was pleased to observe that once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the appellate court reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. The Hon'ble Court was further pleased to observe that "it has also been held that with effect from the date of decree of eviction, 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 on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was 12 prevalent prior to the date of decree". It appears that in the said reported case both the parties had filed affidavit and counter-affidavit placing on record material giving the Court an idea of the rate of rent generally prevalent in the locality where the suit property is situated and the Hon'ble Court was pleased to take an overall view of the material made available by the parties and come to the conclusion with regard to the amount of mesne profits/compensation that would be payable by the party concerned in the said case for use and occupation of the premises in dispute. It further appears that in the instant case the respondents/opposite parties have stated on the basis of a valuation report, as aforesaid, a particular sum of money which the suit property can fetch by way of rent in the present market conditions but the appellant/petitioner has not disclosed any specific amount in this regard excepting the allegation that the appellant/petitioner should not be directed to pay any such amount in the facts and circumstances of the instant case.
The learned Advocate for the respondents cited another decision reported at 2005(11) SCC 547 (Cromton Greaves Ltd. Vs. State of Maharashtra) and the 13 judgment in the said reports was delivered by a bench comprising of three Hon'ble Judges. It appears that the said Court was pleased to take into consideration the Atma Ram Properties (p) Ltd's case when considering the question of fixing interim rate of mesne profits as a condition for operation of stay and for the stay of the operation of the eviction decree the said Hon'ble Court was pleased to fix the occupation charges @ Rs.65 per sq.ft for the area on the ground floor and @ Rs. 22 per sq.ft for the area on the mezzanine floor when the contractual rate of rent was Rs.2.11p. per square feet in respect of the premises concerned with effect from the date of the decree passed by the Hon'ble High Court concerned. It further appears that the respondents in the said reports were permitted to move or pursue, if already filed, the application under Order 20 Rule 12 C.P.C. or to pursue such other remedy as may be available to them under the law for determination and recovery of the mesne profits which the said respondents would be entitled to recover from the appellant in the said reports for the period between the date of institution of suit till the date of recovery of possession in the event 14 of the appeal which was pending before the Hon'ble Supreme Court being dismissed.
The said learned Advocate for the respondents cited another decision reported at 2009(9) SCC 772 (State of Maharashtra & Another -V- Super Max International Private Limited & Others) and referred to Paragraphs 73, 74, 75 and 77 of the said reports wherefrom it appears that the Hon'bl'e Court was pleased to observe, inter alia, that in an appeal or revision, stay of execution of the decree(s) passed by the court(s) 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. It further appears that the Hon'ble Court was pleased to observe that in an appeal or revision preferred by a tenant against an order or decree of eviction passed under a 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 the direction to pay monthly rent at a rate higher than the contractual rent and that in fixing the amount subject to payment of which the execution of the order/decree is stayed, the Court would exercise 15 restraint and would not fix any excessive, fanciful or punitive amount. It will appear from the said reports that the Hon'ble Bench concerned in the said reports comprised of three Hon'ble Judges.
The said learned Advocate also cited another decision reported at 2010(4) CHN(CAL) 108 (Pratul Saha & Ors. -V- Purnabrata Dutta) in support of his contention that if the appellant is permitted to enjoy an order of stay in that event the appellant should be directed to pay occupation charges, arrear and current, at the present market rate in respect of the suit property concerned.
The learned Advocate for the appellant submitted that even though a prayer was made on behalf of the respondents before the Hon'ble High Court when the appeal was admitted for hearing that the appellant should be put on terms if an interim order of stay of execution of the eviction decree is passed, it was refused by the said Hon'ble Court, and, according to the said learned Advocate, the said order of refusal to impose any terms as a condition for grant of stay has merged with the order passed by the Hon'ble Supreme 16 Court while dismissing the Special Leave Petitions, as aforesaid. It appears that the Hon'ble Supreme Court while dismissing the aforesaid Special Leave Petitions on 17.10.2011 was pleased to pass the order as already quoted above. The learned Advocate for the appellant submitted that the doctrine of merger applies in the instant case and the Hon'ble Supreme Court gave reasons while dismissing the Special Leave Petitions. The said learned Advocate referred to copy of the Special Leave Petition and the list of dates submitted before the Hon'ble Supreme Court while submitting that the report of M/s. Talbot Co., as aforesaid, was also placed before the Hon'ble Supreme Court and a grievance was expressed before the Hon'ble Supreme Court that the Hon'ble Division Bench of this High Court had granted an unconditional order of stay of all further proceedings in the ejectment execution case concerned. The said learned Advocate submitted that the Hon'ble Supreme Court was pleased to refuse to interfere with the said order of the Hon'ble High Court and the doctrine of merger applies in the instant case.
The said learned Advocate referred to a decision reported at 2011(4) SCC 602 (Gangadhara Palo -V- 17 Revenue Divisional Officer And Another). It appears that two Hon'ble Judges of the Hon'ble Supreme Court comprised the Bench which had passed the order in the said reports. It appears from the said reports that the order which was challenged before the Hon'ble Supreme Court was an order by which the Hon'ble High Court concerned had dismissed a certain review petition as well as the application for condonation of delay in filing the review petition, and the delay was of 71 days. The Hon'ble Supreme Court was pleased to observe that a liberal view should have been taken by the High Court and Their Lordships were pleased to condone the delay of 71 days in the filing of the review petition before the High Court. It appears that a question of maintainability of the review petition arose in the said case as the learned Advocate for the respondent in the said reports submitted that the review petition was not maintainable because the main judgment of the High Court dated 19.6.2001 dismissing the writ petition of the appellant in the said reports was challenged before the Hon'ble Supreme Court and a Special Leave Petition was filed to that effect but the Hon'ble Supreme Court was pleased to dismiss the Special Leave Petition on 17.9.2001. It 18 appears from the Paragraph 4 of the said reports that the Hon'ble Supreme Court was pleased to dismiss a Special Leave Petition by stating " The special leave petition is dismissed". It further appears that in the said reports an argument was made by the learned Counsel for the respondent that there is a distinction between a case where the review petition was filed in the High Court before the dismissal of this Special Leave Petition by the Supreme Court and a case where the review petition was filed after the dismissal of the special leave petition. There Lordships were further pleased to observe that the important question really is whether the judgment of the High Court has merged into the judgment of the Supreme Court by the doctrine of merger or not. In Paragraphs 6 and 7 of the said reports are quoted below:
"6. When this Court dismisses a special leave petition by giving some reasons, however meagre (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the 19 judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons and not necessarily on merits. We cannot say what was in the mind of the Court while dismissing the special leave petition without giving any reasons. Hence, when a special leave petition is dismissed without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors 20 apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of the Supreme Court. (See the decisions of this Court in Kunhayammed v. State of Kerala, S. Shanmugavel Nadar v. State of T.N., State of Manipur v. Thingujam Brojen Meetei and U.P. SRTC v. Omaditya Verma)."
The learned Advocate for the appellant submitted that the question of imposing terms as a condition for grant of stay of the execution of the ejectment decree is really a matter of discretion of the Court and the respondents cannot claim such imposition of condition as a matter of right. The said learned Advocate submitted that in the present case the appellant had made substantial improvements in the property in dispute and it would not be proper to apply the market rate of rent in respect of such property where the tenant had made improvement by making constructions in such property and the property has been developed by the appellant. The said learned Advocate submitted that in the present case the 21 appellant cannot be equated with the tenant who had taken tenancy of a property constructed by the landlords.
The said learned Advocate referred to the last para of the order dated 29.4.2011 passed by the Hon'ble Division Bench of this Court whereby the said Court was pleased to clarify that the pendency of the appeal will not prevent the learned Trial Judge from proceeding with the mesne profits-proceedings but the learned Trial Judge shall not pass the final order without leave of this Court. The said learned Advocate thus submitted that in such an event this Court should not impose any condition for payment of occupation charges at the present market rate. Such submission of the learned Advocate for the appellant cannot be accepted since the proceedings with regard to the mesne profits before the learned Trial Judge is quite different from the question of imposing a condition for grant of stay of the execution decree by an appellate court during the pendency of the appeal. In Crompton Greaves Ltd's case the Hon'ble Supreme Court was pleased to impose a condition for grant of stay as well as permitting the landlords to pursue an application under Order 20 Rule 12 C.P.C. or to pursue such 22 remedy may be available under the law for determination and recovery of mesne profits.
The learned Advocate for the appellant referred to Paragraph 3 of the plaint in the suit concerned to show that the lease was granted in favour of the appellant in the year 1947 and that the appellant was a monthly tenant in respect of the entire premises. The said learned Advocate referred to Paragraph 11 of the plaint to show a deed of arpannama was executed by Shri Phani Bhusan Sen sometime in 1950 in respect of the property in dispute. The said learned Advocate also referred to Paragraph 15 of the plaint wherein the plaintiffs have stated that the plaintiffs have decided to construct a multistoried building through a developer in the suit premises for better income from the said property and that the plaintiffs will get 24 per cent share out of the total area of the proposed building.
The learned Advocate for the appellant cited a decision reported at 2008(7) SCC 539 (Niyas Ahmad Khan -V- Mahmood Rahmat Ullah Khan and another) and referred to Paragraphs 9 and 10 of the said reports wherefrom it appears that the Hon'ble Supreme Court 23 was pleased to observe therein that in writ petition filed by tenants, while granting stay of execution of the order of eviction pending disposal of the writ petition, the High Court has the discretion to impose reasonable conditions to safeguard the interests of the landlord. But even in such cases the High Court cannot obviously impose the conditions which are ex facie arbitrary and oppressive thereby making the order of stay illusory. The Hon'ble Supreme Court was further pleased to observe that the High Court finding the case fit for admission, may grant stay of eviction, with or without conditions, so that status quo is maintained till the matter is decided. In Paragraph 10 of the said reports the Hon'ble Supreme Court was pleased to observe that in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition subject to two limitations, that is, the condition should be reasonable and there should not be any bar in the respective State rent control legislation in regard to such increase in rent.
The said learned Advocate submitted that in Super Max International Private Limited's case the 24 Hon'ble Supreme Court considering the location and the extent of the suit property and the rent paid for such property had passed the said order in the said reports, but it would appear from Paragraph 77 of the said reports that the ultimate conclusion that can be reached is that the appellate and/or revisional Court has the discretion of granting stay of execution of the eviction decree/order on certain terms.
Having considered the submissions made by the learned Advocates for the respective parties and the decisions cited at the bar in connection with the Court's power to impose condition for grant of stay of execution of the impugned decree for eviction there cannot be any dispute with regard to the proposition of law that the Appellate Court does have the power to grant stay of execution of the impugned eviction decree by imposing a condition that the party who will enjoy such order of stay may be directed to pay occupation charges in respect of the property that may be in dispute at the market rate of rent that may be prevailing but the Court has to ensure that the condition which it proposes to impose for grant of stay should not be oppressive and that it should be a reasonable one.
25
The question that has to be answered in the present case is with regard to the point raised on behalf of the appellant that the doctrine of merger applies in the instant case, as noted above.
The learned Advocate appearing for the respondents submitted that if the argument made on behalf of the appellant is to be accepted then in that event this Court while finally considering the application for stay, after the filing of affidavits by the parties, will have no option but to simply extend the interim order passed at the time of admission of the appeal. The said learned Advocate submitted that by the said order dated 17.10.2011 the Hon'ble Supreme Court did not dispose of any appeal but only refused to permit the respondents to file any appeal. The said learned Advocate for the respondents submitted that the Hon'ble Division Bench had passed the aforesaid interim order at a time when the respondents did not have the occasion to file any affidavit but now this application has come up for final hearing after the filing of affidavits. The Hon'ble Division Bench by the said order dated 29.4.2011 gave liberty to the parties to file their respective affidavits and it obviously means that the matter has to be considered 26 afresh on the basis of the application and the affidavits on record.
The said learned Advocate cited a decision reported at AIR 2000 Supreme Court 2587 (Kunhayammed and Others -V- State of Kerala and Another) and referred to Paragraph 43 of the said reports. Paragraph 43 of the said reports is quoted below:
"43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.
To sum up our conclusions are:27
(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.
(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or 28 affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.
(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.
(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications.
Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within 29 the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.
(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.
(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the 30 jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule(1) of Rule (1) of Order 47 of the C.P.C."
The learned Advocate for the respondents, however, submitted that the Hon'ble Supreme Court in the present case by the said order dated 17.10.2011 was pleased not to make any statement of law nor did it make any finding of fact except that there was no merit in those Special Leave Petitions which arose out of the said order dated 29.4.2011 when the affidavit of the respondents were not on record. According to the said learned Advocate, the Hon'ble Supreme Court was considering the propriety or legality of the order dated 29.4.2011 when the High Court did not have the occasion to consider the affidavit of the respondents. According to the said learned Advocate, the Special Leave Petitions were dismissed in that context, but, now the context has changed and this Court has taken up the application for stay for final hearing after the parties have filed their affidavits. According to the said learned Advocate, the said order dated 17.10.2011 passed by the Hon'ble Supreme Court cannot prevent this Court from 31 imposing appropriate conditions for extension of the interim order of stay.
The said learned Advocate cited another decision reported at AIR 2011 SC 3137 (Bakshi Dev Raj And Anr. -V- Sudheer Kumar) and referred to Paragraph 19 of the said reports wherein the Hon'ble Court was pleased to observe that even after dismissal of a special leave petition, with or without reasons, the aggrieved party is entitled to file a review. It appears that the said judgment was delivered on 4.8.2011 and the judgment in Gangadhara Palo's case was delivered on 8th March, 2011.
The learned Advocate for the appellant has submitted that the Hon'ble Court in Gangadhara Palo's case has explained the decision rendered in Kunhayammed's case (supra) and, therefore, the Gangadhara Palo's case is binding. The learned Advocate for the appellant referred to Paragraph 24 of the reports in Kunhayammed's case (supra) wherein it has been observed by the Hon'ble Court that "Dismissal of SLP by speaking or reasoned order - no merger but Rule of discipline and Article 141 attracted." In Paragraph 25 of 32 the said reports the Hon'ble Court observed that the order disposing of a special leave petition has finality of a limited nature extending only to the points expressly decided by it. In Paragraph 27 of the said reports the Hon'ble Court has been pleased to observe that if petition for leave to appeal is dismissed by a non- speaking order, that is, it does not assign reason for dismissing the special leave petitions, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. The Hon'ble Court was further pleased to observe that if the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal.
It appears to this Court that in the instant case the context out of which the said Special Leave Petitions arose has since changed and this Court is now finally deciding, after the filing of affidavits, as to whether or not any condition should be imposed for the 33 extension of the order of stay. The Hon'ble Supreme Court while passing the said order dated 17.10.2011 was considering a situation where the High Court had granted an unconditional stay and had directed the parties to file their affidavits so that the application may be heard finally. Obviously, on 29.4.2011 when the High Court was considering the application for stay the respondents did not have the occasion to bring on record a valuer's report and/or make statement by way of affidavit as to what should be occupation charges at the present market rate in respect of the suit property. In such a context the Special Leave Petitions were dismissed. Therefore, it cannot be said that the aforesaid order of the Hon'ble Supreme Court would create a bar for the High Court to impose any condition for extension of the order of stay in consonance with the various reported judgments of the Hon'ble Supreme Court, as already noted above. It appears that the learned Advocate for the respondents has rightly submitted that the Hon'ble Supreme Court has not made any statement of law nor did it make any finding of fact as such in the said order dated 17.10.2011. It may be noted here that the Hon'ble Bench which delivered the judgment in 34 Kunhayammed's case comprised of three Hon'ble Judges and the Hon'ble Bench which delivered the judgment and Gangadhara Palo's case comprised of two Hon'ble Judges.
With respect, in the aforesaid circumstances, this Court is of the view that this Court is entitled under the law to impose appropriate conditions while extending the interim order of stay till the disposal of the appeal. The valuer (M/s. Talbot & Co.) has given a report that the property is now capable of fetching rent at the rate of Rs. 16,40000/- per month but the appellant has not come forward with any specific figure in this regard. Be that as it may, the appellant has alleged that it has made substantial improvements in the property and the suit property, as described in the plaint, is the entire premises No. 173 Acharya Jagadish Chandra Bose Road, P.S. Beniapukur, Kolkata 700014 measuring more or less 2 Bighas 16 Cottahs 15 Chittaks and 32 Sq. feet. Such suit property is situated in the heart of the city of Calcutta where the property prices are quite high. Even if a very conservative amount is taken into consideration on account of the rate of rent which such property can fetch, it cannot be less then 35 Rs.4,00,000/- per month. It does not matter where the landlords intend to develop the property or not, the contractual rate of rent of Rs.790 per month in respect of the suit property is absurd in present day conditions. Therefore, Rs.4,00,000/- per month may be fixed as monthly occupation charges in respect of the said suit property. Accordingly, the application for stay is disposed of by extending the interim order of stay of all further proceedings in ejectment case No. 9 of 2009 pending before the learned Civil Judge (Junior Division), Additional Court at Sealdah, South 24-Paraganas, till the disposal of the appeal or until further orders, whichever is earlier, subject to the following conditions:
(1) The appellant shall deposit the arrear occupation charges for the period February 2011 till March 2012 before the aforesaid learned Executing Court @ Rs.4,00000/- per month by 12 equal monthly installments. Such deposits shall be made within the last date of each month till the entire arrear is liquidated and the first of such deposits shall be made by 31st May, 2012.36
(2) The appellant shall deposit the current occupation charges @ Rs.4,00,000/- per month before the aforesaid learned Executing Court concerned by the seventh of each month succeeding the month for which it becomes due and the 1st of such deposits shall be made by the appellant, as aforesaid, by 7th May, 2012 for the month of April, 2012 and thereafter the appellant shall go on making such deposits by the seventh of each month succeeding the month for which it becomes due, as aforesaid, till the disposal of the appeal or until further orders whichever is earlier.
(3) The appellant shall deposit the decretal costs, if any, before the aforesaid learned Executing Court concerned within four weeks from this date.
(4) The appellant shall prepare the requisite number of paper books out of Court and file the same in the Department concerned within four weeks from the date of receipt of notice of arrival of the lower Court records.
In default of compliance of any of the conditions mentioned above on the part of the appellant the instant order stay shall stand vacated and the respondents will 37 be entitled in that event to proceed with the aforesaid ejectment execution case.
The application stands disposed of.
Urgent certified xerox copy of this order, if applied for, be given to the parties on compliance of necessary formalities.
(TAPAN KUMAR DUTT, J.)