Tej Narain vs Akash Gupta on 25 August, 2023

[Cites 18, Cited by 4]

Himachal Pradesh High Court

Tej Narain vs Akash Gupta on 25 August, 2023

Tej Narain Vs Akash Gupta along with connected matters .

CMP Nos. 9940/2022, 10715/2022, 9896/2022 and 9910/2022 in RSA Nos. 197, 217, 188 and 190 of 2022 Reserved on 11.8.22023 Decided on 25 .08.2023 of RSA Nos. 197 and 217 of 2022 25.08.2023 Present:- Mr. G.D. Verma, Sr. Advocate, with Mr. Sumit rt Sharma, Advocate, for the applicant/ appellant in both the appeals.

M/s. Sheetesh Khanna and Yash P. Sharma, Advocates, for the non-applicant/ respondent in both appeals.

None for respondent in RSA No. 217 of 2022, though represented by Ms. Reeta Hingmang, Advocate.

RSA Nos. 188 and 190 of 2022 Mr. Suneet Goel, Advocate, for the applicants/appellants in both appeals.

Mr. Sheetesh Khanna and Mr. Yash P. Sharma, Advocates, for the non-

applicant/respondent in both appeals.

CMP No. 9940/2022 in RSA No. 197/2022 The present application has been filed on behalf of the applicant/defendant for the stay of the execution and operation of the judgment and decree passed by learned Additional District Judge (CBI Court), Shimla in Civil Misc. Appeal No. 4-R/13 of 2021, dated 30.6.2022 and ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 2 the judgment and decree passed by learned Civil Judge (Sr. .

Division), Court No. 1, Rohroo in Civil Suit No. 2/1 of 2015, dated 9.4.2021. It has been asserted that the learned Civil Judge decreed the suit for possession and dismissed the same for the recovery of the use and occupation charges.

of The applicant/defendant filed an appeal before the learned Additional District Judge (CBI Court) Shimla. The non-

rt applicant/respondent filed cross-objections. The learned Additional District Judge (CBI Court), Shimla dismissed the appeal filed by the applicant/defendant but allowed the cross-objections. He awarded the use and occupation charges @ Rs. 4,000/- per month w.e.f. 1.12.2014 till the delivery of the possession. The applicant/defendant has, prima facie, an arguable case in his favour and he will suffer irreparable loss and injury, in case the application is not allowed. The non-applicant/respondent has initiated proceedings by executing the judgments and decrees. Hence the application.

applicant/defendant is the brother of Ram Gopal. He requested Ram Gopal to give him two room sets and an adjoining single room set on the first floor for his residence for some time. He promised to vacate the same after of making an alternate arrangement. He was put in permissible possession by Ram Gopal. Ram Gopal was a rt habitual drunkard and used to remain under the influence of liquor. Satya Narain, Vijay Narain and Tej Narain entered into a conspiracy and got executed a 'Will' from Ram Gopal regarding the building. The plaintiff came to know of this fact and Ram Gopal revoked the 'Will', vide Document No. 58/2013. Ram Gopal died on 8.2.2014. Plaintiff demanded the possession from the defendant but he refused to vacate the premises and hand over the possession. The plaintiff filed a civil suit, which was partly decreed by the learned Trial Court. The defendant filed an appeal. The plaintiff filed cross-objections, which were allowed and the mesne profits were awarded. The plaintiff is entitled to mesne profits, as he is being deprived of the possession. Both the learned Courts below have concurrently found the plaintiff to be entitled to possession. Therefore, it was pleaded that the decree of mesne profits be not stayed.

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3. A rejoinder denying the contents of the reply and .

affirming those of the application was filed.

4. I have heard Mr. G.D. Verma, learned Senior Advocate assisted by Mr. Sumit Sharma, Advocate, for the applicant/defendant and M/s. Sheetesh Khana and Yash P. of Sharma, learned counsel representing the non-

applicant/respondent and have gone through the records rt carefully.

5. Both the learned Courts below have concurrently found that the possession was delivered to the applicant/defendant by Ram Gopal on his request till the applicant/defendant makes an alternate arrangement.

They also held that the applicant/defendant is not entitled to retain the possession. The learned Trial Court passed a decree for possession, which was upheld by the learned First Appellate Court. It was submitted that the plea taken by the applicant/defendant that the property was purchased by the brothers in the name of Ram Gopal is highly probable. Both the learned Courts below have not found this plea to be correct. Section 3 of the Benami Transactions (Prohibition) Act prohibits any person from entering into a Benami transaction. Section 4 of the Act provides that no suit claim or action to enforce any right in respect of any ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 5 property held benami against the person in whose name the .

property is held or against any other person shall lie by or on behalf of the person claiming to be the real owner of the property. Benami transaction has been defined in Section 2(9) as a transaction or arrangement where a property is of held by a person and the consideration for such property has been provided or paid by another person.

6. In the present case also, a plea was taken by the applicant/defendant that the property was purchased in the name of Ram Gopal by the funds provided by the applicant/defendant and other brothers. This plea satisfies the definition of Benami transactions and such a plea cannot be taken before the Court in view of the provisions contained in Section 4 of the Benami Transactions (Prohibition) Act. It was submitted that the applicant/defendant and Ram Gopal were brothers, hence the purchase of the property in the name of the brother will be beyond the purview of the Benami Transaction, as there was a fiduciary relationship. The term fiduciary relationship was explained by the Hon'ble Supreme Court in Pawan Kumar v. Babulal, (2019) 4 SCC 367= 2019 SCC OnLine SC 457, as a relationship analogous to the relationship between a trustee and the beneficiaries. It was observed:-

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"9. In Marcel Martins v. M. Printer, (2012) 5 SCC 342, a suit was filed in the year 1990 praying for a .

declaration that the plaintiffs were co-owners of certain properties to the extent of their contribution. After a full-fledged trial, the Suit was dismissed by the Trial Court but the judgment was reversed by the High Court.

10. While considering the question whether the of case of the plaintiffs would come within the purview of Sub-Section (3) of Section 4 of the Act, the matter was dealt with by this Court as under:-

rt "28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned.

29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family.

There is no dispute that the said provision has no application in the instant case nor was any reliance placed upon the same by the learned counsel for the respondent-plaintiffs.

30. What was invoked by Mr Naveen R. Nath, learned counsel appearing for the respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the trustees and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr Nath that the circumstances in which the purchase in question was made in the name of the appellant assume great importance while determining whether the appellant in whose ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 7 name the property was acquired stood in a fiduciary capacity towards the respondent-

plaintiffs.

31. The expression "fiduciary capacity" has not been defined in the 1988 Act or any other statute for that matter. And yet there is no gainsaying that the same is an expression of known legal significance, the import whereof of may be briefly examined at this stage.

32. The term "fiduciary" has been explained by Corpus Juris Secundum as under:

rt"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from civil or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.

The word "fiduciary", as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and candour which it requires; a person having the duty, created by his undertaking, to act primarily for another"s benefit in matters connected ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 8 with such undertaking. Also more specifically, in a statute, a guardian, .

trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."

33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as of under:

"There is a technical distinction between rta "fiducial relation" which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and "confidential relation" which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised.

Generally, the term "fiduciary" applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations."

34. Black"s Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus:

"Fiduciary relationship."A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships" such as trustee- beneficiary, guardian-ward, agent-

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principal, and attorney-client" require the highest duty of care. Fiduciary .

relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and of responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when rtthere is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."

35. Stroud"s Judicial Dictionary explains the expression "fiduciary capacity" as under:

"Fiduciary capacity."An administrator who [had] received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity"

within the Debtors Act, 1869 so, of the debt due from an executor who is indebted to his testator"s estate which he is able to pay but will not, so of money in the hands of a receiver, or agent, or manager, or money due on an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or money which in the compromise of action have been ordered to be held on certain trusts or partnership money received by a partner."

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36. Bouvier"s Law Dictionary defines "fiduciary capacity" as under:

.

"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, of director of a corporation or society, medical or religious adviser, husband rtand wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases, debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."

We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497 wherein Raveendran, J. speaking for the Court in that case explained the terms "fiduciary" and "fiduciary relationship"

in the following words: (SCC pp. 524-25, para 39) "39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship"

is used to describe a situation or ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 11 transaction where one person (beneficiary) places complete .

confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in of confidence and for the benefit and advantage of the beneficiary and use good faith and fairness in dealing with the beneficiary or the things belonging rt to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."

It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.

38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 12 deduced in a given case. Having said that, let us turn to the facts of the present case once .

more to determine whether the appellant stood in a fiduciary capacity vis-a-vis the respondent-plaintiffs."

7. The Hon'ble Supreme Court held in Vishram v.

Sudesh Govekar, (2017) 11 SCC 345= 2017 SCC OnLine SC of 1539, that a claim made by a person that the property was purchased by the father in the name of the son cannot be rt considered by the Court. It was observed:-

"23. In this context, the question of Benami ownership also surfaced. There is no dispute that in the revenue records property stood in the name of Vasudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act. Though we do not find any merit in the arguments of the appellants that the Benami Act is not applicable, in any case, there is hardly any material produced by the defendants to support that the real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar the owner of the suit property."

decree is put to execution, the applicant/defendant can be deprived of the possession and thus he will suffer an irreparable loss and injury, which cannot be compensated in terms of money, in case it is found during this appeal of that his eviction was unauthorized. Therefore, he is entitled to retain the possession till the adjudication of his rights.

9. It was laid down by the Hon'ble Supreme Court in Achal Misra Vs. Rama Shanker Singh and Others 2005 (5) SCC 531 that where the courts order the stay of eviction, they should compensate the owner by directing the person in unauthorized possession to pay the mesne profits to the owner. This position was reiterated in Anderson Wright & Co. v. Amar Nath Roy, (2005) 6 SCC 489= 2005 SCC OnLine SC 803, wherein it was observed:

"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705, once a decree for eviction has been passed, in the event of execution of a 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. It has also been held that with effect from the date of the decree of eviction, the tenant is liable to pay mesne profits or compensation for the use and occupation of the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 14 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 prevalent prior to the date of decree.

6. The learned counsel for the appellants of submitted that the appellants cannot be held liable to pay anything more than the standard rent of the premises, in spite of the decree for eviction having been passed as the same is sub judice. This rt submission needs a summary dismissal in view of the judgment of this Court in Atma Ram Properties (P) Ltd.'s case (supra). Both the parties have 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. Canara Bank on the first floor of this building is paying rent @ Rs. 25/- per sq. ft.

other than maintenance and municipal taxes. One Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ Rs. 32/- per sq. ft. Taking an overall view of the material made available by the parties, we think that the appellants should, from the date of the decree of the eviction, pay mesne profits/compensation for use and occupation @ Rs. 15/- per sq. ft. subject to final determination of the same by a competent forum."

10. Therefore, a person found to be in unauthorized possession is bound to compensate the owner by the payment of mesne profits as per the judgments of the Hon'ble Supreme Court of India.

11. It was submitted that the judgments were delivered in the context of the Rent Control Act and they ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 15 cannot be applied to the cases pending before the Civil .

Courts. It is difficult to accept the submission. The Hon'ble Supreme Court of India directed the payment of compensation to the owner, who has been deprived of the use of his property. The property and owners remain the of same under the General Law or the Rent Control Act. It is difficult to see that the position of an owner should be rt better under the Rent Control Act than an owner under the General Law. Both the owners are being deprived of the use of the property and they are entitled to be compensated for the loss being suffered by them. Hence the principles laid down by the Hon'ble Supreme Court can be applied to the present case as well. This is also apparent from the judgment of the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 = 2005 SCC OnLine SC 1583 wherein a reference was made to Order 41 Rule 5 of CPC. The relevant paras of the aforesaid judgment are as under:

9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be a 'substantial loss' to the party applying for a stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 16 ultimately be passed being furnished by the applicant for stay as a condition precedent to the .

grant of an order of stay. However, this is not the only condition, which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an of appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application rt for an order of stay has been made. Therefore, an applicant for an order of stay must do equity to seek equity. Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., (2003) 8 SCC 648, this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand

(a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the Court. In our opinion, while granting an ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 17 order of stay under Order 41 Rule 5 of the CPC, the appellate court does have jurisdiction to put the .

party seeking a stay order on such terms as would reasonably compensate the successful party 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 of to grant a 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 rt 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 the exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors. - (1985) 3 SCC 545, -

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

10. Shri Ranjit Kumar, the learned senior counsel for the respondent, submitted that during the pendency of the appeal the tenant-appellant cannot be directed to pay any amount over and above the amount of contractual rent unless and until the decree or order of eviction has achieved a finality because, in view of the protection of rent control legislation enjoyed by the tenant, he shall continue to remain a tenant and would not become ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 18 a person in unlawful possession of the property until the decree has achieved a finality from the .

highest forum upto which the litigation is pursued. Reliance was placed on the decision of this Court in Smt. Chander Kali Bai & Ors. Vs. Shri Jagdish Singh Thakur & Anr., (1977) 4 SCC 402, followed in Vashu Deo Vs. Balkishan, (2002) 2 SCC

50. This submission raises the following two of issues:- (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the rt contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent?

11. Under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant."

12. Therefore, the submission cannot be accepted that the principles will only apply to the cases under the Rent Control Act and not to the general law.

13. The learned First Appellate Court had ordered the payment of mesne profits @ 4,000/- per month for one double room and one single room set located in the urban ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 19 area of Rohroo. The amount of Rs 4,000/- per month .

appears to be reasonable keeping in view the location of the premises where it is located. Hence, it will not be proper to stay the execution and operation of the judgment and decree passed by the learned Additional District Judge (CBI of Court), Shimla. However, in order to balance the equities, it is directed that the amount shall be deposited before the rt learned Trial Court on the 10th of every month and shall not be released without a specific order from this Court. The amount shall be invested in the fixed deposit to ensure that none of the parties loses interest. In case of a failure to deposit the amount, the order granted by this Court shall stand automatically vacated and the plaintiff will be entitled to execute the judgment and decree as per law.

Such a course will not harm any of the parties and will protect the interests of both parties.

14. Thus, the present application is partly allowed and the judgment and decree passed by both the learned Courts below ordering the eviction of the applicant is ordered to be stayed subject to deposit of Rs. 4,000/- per month as mesne profit.

The application stands disposed of.

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CMP No. 10715/2022 in RSA No. 217/2022 The present application has been filed on behalf of the applicant/defendant for the stay of the execution and operation of the judgment and decree passed by learned of Additional District Judge (CBI Court), Shimla in Civil Misc.

Appeal No. 6-R/13 of 2021, dated 30.6.2022 and the rt judgment and decree passed by learned Civil Judge (Sr. Division), Court No. 1, Rohroo in Civil Suit No. 2/1 of 2015, dated 9.4.2021. It has been asserted that the learned Civil Judge decreed the suit for possession and dismissed the same for the recovery of the use and occupation charges.

The applicant/defendant filed an appeal before the learned Additional District Judge (CBI Court) Shimla. The non-

applicant/respondent filed cross-objections. The learned Additional District Judge (CBI Court), Shimla dismissed the appeal filed by the applicant/defendant but allowed the cross-objections. He awarded the use and occupation charges @ Rs. 4,000/- per month w.e.f. 1.12.2014 till the delivery of the possession. The applicant/defendant has, prima facie, an arguable case in his favour and he will suffer irreparable loss and injury, in case the application is not allowed. The non-applicant/respondent has initiated ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 21 proceedings by executing the judgments and decrees. Hence .

the application.

2. The application is opposed by filing a reply denying the contents of the application. It was submitted that Ram Gopal, father of the plaintiff, purchased land of bearing Khasra No. 662, vide sale deed No. 108/94 dated 10.6.1994 and another sale deed dated 29.12.1998.

               rt                                                            He

    constructed    a    two-storeyed         RCC        building.           The

    applicant/defendant is the brother of Ram Gopal.                         He

requested Ram Gopal to give him two room sets and an adjoining single room set on the first floor for his residence for some time. He promised to vacate the same after making an alternate arrangement. He was put in permissible possession by Ram Gopal. Ram Gopal was a habitual drunkard and used to remain under the influence of liquor. Satya Narain, Vijay Narain and Tej Narain entered into a conspiracy and got executed a 'Will' from Ram Gopal regarding the building. The plaintiff came to know of this fact and Ram Gopal revoked the 'Will', vide Document No. 58/2013. Ram Gopal died on 8.2.2014. Plaintiff demanded the possession from the defendant but he refused to vacate the premises and hand over the possession. The plaintiff filed a civil suit, which was partly decreed by the learned ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 22 Trial Court. The defendant filed an appeal. The plaintiff .

filed cross-objections, which were allowed and the mesne profits were awarded. The plaintiff is entitled to mesne profits, as he is being deprived of the possession. Both the learned Courts below have concurrently found the plaintiff of to be entitled to possession. Therefore, it was pleaded that the decree of mesne profits be not stayed.

3. A rejoinder denying the contents of the reply and affirming those of the application was filed.

4. I have heard Mr. G.D. Verma, learned Senior Advocate assisted by Mr. Sumit Sharma, Advocate, for the applicant/defendant and M/s. Sheetesh Khana and Yash P. Sharma, learned counsel representing the non-

applicant/respondent and have gone through the records carefully.

They also held that the applicant/defendant is not entitled to retain the possession. The learned Trial Court passed a decree for possession, which was upheld by the learned First Appellate Court. It was submitted that the plea taken ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 23 by the applicant/defendant that the property was purchased .

by the brothers in the name of Ram Gopal is highly probable. Both the learned Courts below have not found this plea to be correct. Section 3 of the Benami Transactions (Prohibition) Act prohibits any person from entering into a of Benami transaction. Section 4 of the Act provides that no suit claim or action to enforce any right in respect of any rt property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of the person claiming to be the real owner of the property. Benami transaction has been defined in Section 2(9) as a transaction or arrangement where a property is held by a person and the consideration for such property has been provided or paid by another person.

be beyond the purview of the Benami Transaction, as there was a fiduciary relationship. The term fiduciary relationship was explained by the Hon'ble Supreme Court in Pawan Kumar v. Babulal, (2019) 4 SCC 367= 2019 SCC OnLine of SC 457, as a relationship analogous to the relationship between a trustee and the beneficiaries. It was observed:-

rt "9. In Marcel Martins v. M. Printer, (2012) 5 SCC 342, a suit was filed in the year 1990 praying for a declaration that the plaintiffs were co-owners of certain properties to the extent of their contribution. After a full-fledged trial, the Suit was dismissed by the Trial Court but the judgment was reversed by the High Court.

10. While considering the question whether the case of the plaintiffs would come within the purview of Sub-Section (3) of Section 4 of the Act, the matter was dealt with by this Court as under:-

"28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned.

29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family. There is no dispute that the said provision has no application in the instant case nor was any reliance placed upon the same by the learned counsel for the respondent-plaintiffs.

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30. What was invoked by Mr Naveen R. Nath, learned counsel appearing for the .

respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the trustees and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It of was argued by Mr Nath that the circumstances in which the purchase in question was made in the name of the appellant assume great importance while rt determining whether the appellant in whose name the property was acquired stood in a fiduciary capacity towards the respondent- plaintiffs.

31. The expression "fiduciary capacity" has not been defined in the 1988 Act or any other statute for that matter. And yet there is no gainsaying that the same is an expression of known legal significance, the import whereof may be briefly examined at this stage.

32. The term "fiduciary" has been explained by Corpus Juris Secundum as under:

"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from civil or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 26 another, as well as technical fiduciary relations.

.

The word "fiduciary", as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it of and the scrupulous good faith and candour which it requires; a person rthaving the duty, created by his undertaking, to act primarily for another"s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."

33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as under:

"There is a technical distinction between a "fiducial relation" which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and "confidential relation" which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised. Generally, the term "fiduciary" applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 27 of the transaction. The term includes those informal relations which exist .

whenever one party trusts and relies upon another, as well as technical fiduciary relations."

34. Black"s Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus:

"Fiduciary relationship."A relationship of in which one person is under a duty to act for the benefit of the other on matters rtwithin the scope of the relationship. Fiduciary relationships" such as trustee- beneficiary, guardian-ward, agent-

principal, and attorney-client" require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."

35. Stroud"s Judicial Dictionary explains the expression "fiduciary capacity" as under:

"Fiduciary capacity."An administrator who [had] received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity"

within the Debtors Act, 1869 so, of the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 28 debt due from an executor who is indebted to his testator"s estate which .

he is able to pay but will not, so of money in the hands of a receiver, or agent, or manager, or money due on an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or money which in the of compromise of action have been ordered to be held on certain trusts or partnership money received by a partner."

36. Bouvier"s Law Dictionary defines "fiduciary capacity" as under:

"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation or society, medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases, debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."

We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497 wherein Raveendran, J. speaking for the Court in ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 29 that case explained the terms "fiduciary" and "fiduciary relationship"

.

in the following words: (SCC pp. 524-25, para 39) "39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person of reposes trust and special confidence in the person owing or discharging the rt duty. The term "fiduciary relationship"

is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, the fiduciary has to act in confidence and is expected not to disclose the thing or information to any third party."

It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 30 its import for it extends to all such situations as place the parties in positions .

that are founded on confidence and trust on the one part and good faith on the other.

38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to of take into consideration the factual context in which the question arises for it is only in the rt factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-a-vis the respondent-plaintiffs."

7. The Hon'ble Supreme Court held in Vishram v.

Sudesh Govekar, (2017) 11 SCC 345= 2017 SCC OnLine SC 1539, that a claim made by a person that the property was purchased by the father in the name of the son cannot be considered by the Court. It was observed:-

"23. In this context, the question of Benami ownership also surfaced. There is no dispute that in the revenue records property stood in the name of Vasudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act. Though we do not find any merit in the arguments of the appellants that the Benami Act is not applicable, in any case, there is hardly any material produced by the defendants to support that the real owner was Jagannath ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 31 Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit .

property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar the owner of the suit property."

8. Thus, in view of the binding precedent of the Hon'ble Supreme Court of India the plea that the property of was purchased in the name of Ram Gopal by the funds provided by his brother cannot be taken before the Court rt and is, prima facie, not acceptable. However, in case the decree is put to execution, the applicant/defendant can be deprived of the possession and thus he will suffer an irreparable loss and injury, which cannot be compensated in terms of money, in case it is found during this appeal that his eviction was unauthorized. Therefore, he is entitled to retain the possession till the adjudication of his rights.

::: Downloaded on - 26/08/2023 20:33:57 :::CIS 32

"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705, .

once a decree for eviction has been passed, in the event of execution of a 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 of the decree by the grant of stay in the event of the appeal being dismissed. It has also been held that with effect from the date of the decree of eviction, the tenant is liable to pay mesne profits or rt compensation for the 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 prevalent prior to the date of decree.

6. The learned counsel for the appellants submitted that the appellants cannot be held liable to pay anything more than the standard rent of the premises, in spite of the decree for eviction having been passed as the same is sub judice. This submission needs a summary dismissal in view of the judgment of this Court in Atma Ram Properties (P) Ltd.'s case (supra). Both the parties have 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. Canara Bank on the first floor of this building is paying rent @ Rs. 25/- per sq. ft. other than maintenance and municipal taxes. One Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ Rs. 32/- per sq. ft. Taking an overall view of the material made available by the parties, we think that the appellants should, from the date of the decree of the eviction, pay mesne ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 33 profits/compensation for use and occupation @ Rs. 15/- per sq. ft. subject to final determination of .

the same by a competent forum."

10. Therefore, a person found to be in unauthorized possession is bound to compensate the owner by the payment of mesne profits as per the judgments of the of Hon'ble Supreme Court of India.

11. It was submitted that the judgments were rt delivered in the context of the Rent Control Act and they cannot be applied to the cases pending before the Civil Courts. It is difficult to accept the submission. The Hon'ble Supreme Court of India directed the payment of compensation to the owner, who has been deprived of the use of his property. The property and owners remain the same under the General Law or the Rent Control Act. It is difficult to see that the position of an owner should be better under the Rent Control Act than an owner under the General Law. Both the owners are being deprived of the use of the property and they are entitled to be compensated for the loss being suffered by them. Hence the principles laid down by the Hon'ble Supreme Court can be applied to the present case as well. This is also apparent from the judgment of the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 34 705 = 2005 SCC OnLine SC 1583 wherein a reference was .

made to Order 41 Rule 5 of CPC. The relevant paras of the aforesaid judgments are as under:

9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be a 'substantial loss' to the party of applying for a stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same rt provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of an order of stay. However, this is not the only condition, which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for an order of stay must do equity to seek equity. Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., (2003) 8 SCC 648, this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 35 passed at an interim stage, stand reversed in the event of the final decision going against the party .

successful in securing interim orders in its favour;

and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand of

(a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction rt of the Court. In our opinion, while granting an order of stay under Order 41 Rule 5 of the CPC, the appellate court does have jurisdiction to put the party seeking a stay order on such terms as would reasonably compensate the successful party 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 a 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 the exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors. - (1985) 3 SCC 545, -

"Common sense which is a cluster of life's ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 36 experiences, is often more dependable than the rival facts presented by warring .

litigants".

10. Shri Ranjit Kumar, the learned senior counsel for the respondent, submitted that during the pendency of the appeal the tenant-appellant cannot be directed to pay any amount over and above the amount of contractual rent unless and of until the decree or order of eviction has achieved a finality because, in view of the protection of rent control legislation enjoyed by the tenant, he shall continue to remain a tenant and would not become rt a person in unlawful possession of the property until the decree has achieved a finality from the highest forum upto which the litigation is pursued. Reliance was placed on the decision of this Court in Smt. Chander Kali Bai & Ors. Vs. Shri Jagdish Singh Thakur & Anr., (1977) 4 SCC 402, followed in Vashu Deo Vs. Balkishan, (2002) 2 SCC

50. This submission raises the following two issues:- (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent?

12. Therefore, the submission cannot be accepted that the principles will only apply to the cases under the Rent Control Act and not to the general law.

13. The learned First Appellate Court had ordered the of payment of mesne profits @ 4,000/- per month for one double room and one single room set located in the urban rt area of Rohroo. The amount of Rs 4,000/- per month appears to be reasonable keeping in view the location of the premises where it is located. Hence, it will not be proper to stay the execution and operation of the judgment and decree passed by the learned Additional District Judge (CBI Court), Shimla. However, in order to balance the equities, it is directed that the amount shall be deposited before the learned Trial Court on the 10th of every month and shall not be released without a specific order from this Court. The amount shall be invested in the fixed deposit to ensure that none of the parties loses interest. In case of a failure to deposit the amount, the order granted by this Court shall stand automatically vacated and the plaintiff will be entitled to execute the judgment and decree as per law.

Such a course will not harm any of the parties and will protect the interests of both parties.

::: Downloaded on - 26/08/2023 20:33:57 :::CIS 38

14. Thus, the present application is partly allowed and .

the judgment and decree passed by both the learned Courts below ordering the eviction of the applicant is ordered to be stayed subject to deposit of Rs. 4,000/- per month as mesne profit.

of The application stands disposed of.

CMP No. 9896/2022 in RSA No. 188/2022 rt The present application has been filed on behalf of the applicants/defendants for the stay of the execution and operation of the judgment and decree passed by learned Additional District Judge (CBI Court), Shimla in Civil Misc.

Appeal No. 3-R/13 of 2021, dated 30.6.2022 and the judgment and decree passed by learned Civil Judge (Sr. Division), Court No. 1, Rohroo in Civil Suit No. 4/1 of 2015, dated 9.4.2021. It has been asserted that the learned Civil Judge decreed the suit for possession and dismissed the same for the recovery of the use and occupation charges.

The applicants/defendants filed an appeal before the learned Additional District Judge (CBI Court) Shimla. The non-applicant/respondent filed cross-objections. The learned Additional District Judge (CBI Court), Shimla dismissed the appeal filed by the applicants/defendants but allowed the cross-objections. He awarded the use and ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 39 occupation charges @ Rs. 2500/- per month w.e.f. 1.12.2014 .

till the delivery of the possession. The applicants/defendants have, prima facie, an arguable case in their favour and they will suffer irreparable loss and injury, in case the application is not allowed. The non-

of applicant/respondent has initiated proceedings by executing rt the judgments and decrees. Hence the application.

2. The application is opposed by filing a reply denying the contents of the application. It was submitted that Ram Gopal, father of the plaintiff, purchased land bearing Khasra No. 662, vide sale deed No. 108/94 dated 10.6.1994 and another sale deed dated 29.12.1998. He constructed a two-storeyed RCC building. Father of the applicants/defendants is the brother of Ram Gopal. He requested Ram Gopal to give him two room sets and an adjoining single room set on the first floor for his residence for some time. He promised to vacate the same after making an alternate arrangement. He was put in permissible possession by Ram Gopal. Ram Gopal was a habitual drunkard and used to remain under the influence of liquor. Satya Narain, Vijay Narain and Tej Narain entered into a conspiracy and got executed a 'Will' from Ram Gopal ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 40 regarding the building. The plaintiff came to know of this .

fact and Ram Gopal revoked the 'Will', vide Document No. 58/2013. Ram Gopal died on 8.2.2014. Plaintiff demanded the possession from the defendant but he refused to vacate the premises and hand over the possession. The plaintiff of filed a civil suit, which was partly decreed by the learned Trial Court. The defendant filed an appeal. The plaintiff rt filed cross-objections, which were allowed and the mesne profits were awarded. The plaintiff is entitled to mesne profits, as he is being deprived of the possession. Both the learned Courts below have concurrently found the plaintiff to be entitled to possession. Therefore, it was pleaded that the decree of mesne profits be not stayed.

3. A rejoinder denying the contents of the reply and affirming those of the application was filed.

4. I have heard Mr. Suneet Goel, Advocate, learned counsel for the applicants/defendants and M/s. Sheetesh Khana and Yash P. Sharma, learned counsel representing the non-applicant/respondent and have gone through the records carefully.

5. Both the learned Courts below have concurrently found that the possession was delivered to the father of the applicants/defendants by Ram Gopal on his request till the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 41 he makes an alternate arrangement. They also held that the .

applicant/defendant is not entitled to retain the possession.

The learned Trial Court passed a decree for possession, which was upheld by the learned First Appellate Court. It was submitted that the plea taken by the of applicants/defendants that the property was purchased by the brothers in the name of Ram Gopal is highly probable.

rt Both the learned Courts below have not found this plea to be correct. Section 3 of the Benami Transactions (Prohibition) Act prohibits any person from entering into a Benami transaction. Section 4 of the Act provides that no suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of the person claiming to be the real owner of the property.

Benami transaction has been defined in Section 2(9) as a transaction or arrangement where a property is held by a person and the consideration for such property has been provided or paid by another person.

6. In the present case also, a plea was taken by the applicants/defendants that the property was purchased in the name of Ram Gopal by the funds provided by the father of the applicants/defendants and other brothers. This plea ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 42 satisfies the definition of Benami transactions and such a .

plea cannot be taken before the Court in view of the provisions contained in Section 4 of the Benami Transactions (Prohibition) Act. It was submitted that the father of the applicants/defendants and Ram Gopal were of brothers, hence the purchase of the property in the name of the brother will be beyond the purview of the Benami rt Transaction, as there was a fiduciary relationship. The term fiduciary relationship was explained by the Hon'ble Supreme Court in Pawan Kumar v. Babulal, (2019) 4 SCC 367= 2019 SCC OnLine SC 457, as a relationship analogous to the relationship between a trustee and the beneficiaries. It was observed:-

"9. In Marcel Martins v. M. Printer, (2012) 5 SCC 342, a suit was filed in the year 1990 praying for a declaration that the plaintiffs were co-owners of certain properties to the extent of their contribution. After a full-fledged trial, the Suit was dismissed by the Trial Court but the judgment was reversed by the High Court.

10. While considering the question whether the case of the plaintiffs would come within the purview of Sub-Section (3) of Section 4 of the Act, the matter was dealt with by this Court as under:-

"28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned.

::: Downloaded on - 26/08/2023 20:33:57 :::CIS 43

29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part .

comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family. There is no dispute that the said provision has no application in the instant case nor was any of reliance placed upon the same by the learned counsel for the respondent-plaintiffs.

30. What was invoked by Mr Naveen R. Nath, rt learned counsel appearing for the respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the trustees and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr Nath that the circumstances in which the purchase in question was made in the name of the appellant assume great importance while determining whether the appellant in whose name the property was acquired stood in a fiduciary capacity towards the respondent- plaintiffs.

31. The expression "fiduciary capacity" has not been defined in the 1988 Act or any other statute for that matter. And yet there is no gainsaying that the same is an expression of known legal significance, the import whereof may be briefly examined at this stage.

32. The term "fiduciary" has been explained by Corpus Juris Secundum as under: "A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from civil or Roman law. It ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 44 connotes the idea of trust or confidence, contemplates good faith, rather than legal .

obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include of those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.

rtThe word "fiduciary", as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and candour which it requires; a person having the duty, created by his undertaking, to act primarily for another"s benefit in matters connected with such undertaking. Also more specifically, in a statute, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."

33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as under:

"There is a technical distinction between a "fiducial relation" which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and "confidential ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 45 relation" which includes the legal relationships, and also every other .

relationship wherein confidence is rightly reposed and is exercised. Generally, the term "fiduciary" applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It of contemplates fair dealing and good faith, rather than legal obligation, as the basis rtof the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations."

34. Black"s Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus:

"Fiduciary relationship."A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship.

Fiduciary relationships" such as trustee- beneficiary, guardian-ward, agent-

principal, and attorney-client" require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 46 lawyer and a client or a stockbroker and a customer."

35. Stroud"s Judicial Dictionary explains the expression "fiduciary capacity" as under:

"Fiduciary capacity."An administrator who [had] received money under letters of administration and who is ordered to pay it over in a suit for the recall of the of grant, holds it "in a fiduciary capacity"

within the Debtors Act, 1869 so, of the rtdebt due from an executor who is indebted to his testator"s estate which he is able to pay but will not, so of money in the hands of a receiver, or agent, or manager, or money due on an account from the London agent of a country solicitor, or proceeds of sale in the hands of an auctioneer, or money which in the compromise of action have been ordered to be held on certain trusts or partnership money received by a partner."

36. Bouvier"s Law Dictionary defines "fiduciary capacity" as under:

"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, director of a corporation or society, medical or religious adviser, husband and wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 47 following cases, debt has been held to be not a fiduciary one: a factor who retains .

the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."

We may at this stage refer to a recent decision of this Court in CBSE v. Aditya of Bandopadhyay, (2011) 8 SCC 497 wherein Raveendran, J. speaking for the Court in that rt case explained the terms "fiduciary" and "fiduciary relationship"

in the following words: (SCC pp. 524-25, para 39) "39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship"

is used to describe a situation or transaction where one person (beneficiary) places complete confidence in another person (fiduciary) in regard to his affairs, business or transaction(s). The term also refers to a person who holds a thing in trust for another (beneficiary). The fiduciary is expected to act in confidence and for the benefit and advantage of the beneficiary and use good faith and fairness in dealing with the beneficiary or the things belonging to the beneficiary. If the beneficiary has entrusted anything to the fiduciary, to hold the thing in trust or to execute certain acts in regard to or with reference to the entrusted thing, ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 48 the fiduciary has to act in confidence and is expected not to disclose the .

thing or information to any third party."

It is manifest that while the expression "fiduciary capacity" may not be capable of a precise definition, it implies a relationship that is analogous to the relationship of between a trustee and the beneficiaries of the trust. The expression is in fact wider in rt its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.

38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be deduced in a given case. Having said that, let us turn to the facts of the present case once more to determine whether the appellant stood in a fiduciary capacity vis-a-vis the respondent-plaintiffs."

7. The Hon'ble Supreme Court held in Vishram v.

"23. In this context, the question of Benami ownership also surfaced. There is no dispute that ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 49 in the revenue records property stood in the name of Vasudev Govekar and not Jagannath Govekar.

.

The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act. Though we do not find any merit in the arguments of the appellants that the Benami of Act is not applicable, in any case, there is hardly any material produced by the defendants to support that the real owner was Jagannath Govekar. This claim is made only on the ground rt that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar the owner of the suit property."

8. Thus, in view of the binding precedent of the Hon'ble Supreme Court of India the plea that the property was purchased in the name of Ram Gopal by the funds provided by his brother cannot be taken before the Court and is, prima facie, not acceptable. However, in case the decree is put to execution, the applicants/defendants can be deprived of the possession and thus they will suffer an irreparable loss and injury, which cannot be compensated in terms of money, in case it is found during this appeal that their eviction was unauthorized. Therefore, they are entitled to retain the possession till the adjudication of their rights.

::: Downloaded on - 26/08/2023 20:33:57 :::CIS 50

9. It was laid down by the Hon'ble Supreme Court in .

Achal Misra Vs. Rama Shanker Singh and Others 2005 (5) SCC 531 that where the courts order the stay of eviction, they should compensate the owner by directing the person in unauthorized possession to pay the mesne profits to the of owner. This position was reiterated in Anderson Wright & Co. v. Amar Nath Roy, (2005) 6 SCC 489= 2005 SCC OnLine rt SC 803, wherein it was observed:

"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705, once a decree for eviction has been passed, in the event of execution of a 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. It has also been held that with effect from the date of the decree of eviction, the tenant is liable to pay mesne profits or compensation for the 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 prevalent prior to the date of decree.

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. Canara Bank on the first floor of this building is paying rent @ Rs. 25/- per sq. ft. other than maintenance and municipal taxes. One of Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ Rs. 32/- per sq. ft. Taking an overall view of the material made available by the parties, we think that the appellants should, from rt the date of the decree of the eviction, pay mesne profits/compensation for use and occupation @ Rs. 15/- per sq. ft. subject to final determination of the same by a competent forum."

10. Therefore, a person found to be in unauthorized possession is bound to compensate the owner by the payment of mesne profits as per the judgments of the Hon'ble Supreme Court of India.

11. It was submitted that the judgments were delivered in the context of the Rent Control Act and they cannot be applied to the cases pending before the Civil Courts. It is difficult to accept the submission. The Hon'ble Supreme Court of India directed the payment of compensation to the owner, who has been deprived of the use of his property. The property and owners remain the same under the General Law or the Rent Control Act. It is difficult to see that the position of an owner should be ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 52 better under the Rent Control Act than an owner under the .

General Law. Both the owners are being deprived of the use of the property and they are entitled to be compensated for the loss being suffered by them. Hence the principles laid down by the Hon'ble Supreme Court can be applied to the of present case as well. This is also apparent from the judgment of the Hon'ble Supreme Court in Atma Ram rt Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 = 2005 SCC OnLine SC 1583 wherein a reference was made to Order 41 Rule 5 of CPC. The relevant paras of the aforesaid judgments are as under:

9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be a 'substantial loss' to the party applying for a stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of an order of stay. However, this is not the only condition, which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 53 for an order of stay has been made. Therefore, an applicant for an order of stay must do equity to .

seek equity. Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South of Eastern Coalfields Ltd. Vs. State of M.P. & Ors., (2003) 8 SCC 648, this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection rt to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour;

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 the exercise of discretion while passing an order of and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors. Vs. Bombay Municipal rt Corporation and Ors. - (1985) 3 SCC 545, -

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

10. Shri Ranjit Kumar, the learned senior counsel for the respondent, submitted that during the pendency of the appeal the tenant-appellant cannot be directed to pay any amount over and above the amount of contractual rent unless and until the decree or order of eviction has achieved a finality because, in view of the protection of rent control legislation enjoyed by the tenant, he shall continue to remain a tenant and would not become a person in unlawful possession of the property until the decree has achieved a finality from the highest forum upto which the litigation is pursued. Reliance was placed on the decision of this Court in Smt. Chander Kali Bai & Ors. Vs. Shri Jagdish Singh Thakur & Anr., (1977) 4 SCC 402, followed in Vashu Deo Vs. Balkishan, (2002) 2 SCC

50. This submission raises the following two issues:- (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 55 contractual rate and when does he become liable to pay to the landlord compensation for use and .

occupation of the tenancy premises unbound by the contractual rate of rent?

11. Under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under of Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the rt premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant."

12. Therefore, the submission cannot be accepted that the principles will only apply to the cases under the Rent Control Act and not to the general law.

13. The learned First Appellate Court had ordered the payment of mesne profits @ 2500/- per month for one double room and one single room set located in the urban area of Rohroo. The amount of Rs 2500/- per month appears to be reasonable keeping in view the location of the premises where it is located. Hence, it will not be proper to stay the execution and operation of the judgment and decree passed by the learned Additional District Judge (CBI Court), Shimla. However, in order to balance the equities, it is directed that the amount shall be deposited before the ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 56 learned Trial Court on the 10th of every month and shall not .

be released without a specific order from this Court. The amount shall be invested in the fixed deposit to ensure that none of the parties loses interest. In case of a failure to deposit the amount, the order granted by this Court shall of stand automatically vacated and the plaintiff will be entitled to execute the judgment and decree as per law.

rt Such a course will not harm any of the parties and will protect the interests of both parties.

The application stands disposed of.

CMP No. 9910/2022 in RSA No. 190/2022 The present application has been filed on behalf of the applicants/defendants for the stay of the execution and operation of the judgment and decree passed by learned Additional District Judge (CBI Court), Shimla in Civil Misc.

Appeal No. 3-R/13 of 2021, dated 30.6.2022 and the judgment and decree passed by learned Civil Judge (Sr. Division), Court No. 1, Rohroo in Civil Suit No. 4/1 of 2015, ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 57 dated 9.4.2021. It has been asserted that the learned Civil .

Judge decreed the suit for possession and dismissed the same for the recovery of the use and occupation charges.

The applicants/defendants filed an appeal before the learned Additional District Judge (CBI Court) Shimla. The of non-applicant/respondent filed cross-objections. The learned Additional District Judge (CBI Court), Shimla rt dismissed the appeal filed by the applicants/defendants but allowed the cross-objections. He awarded the use and occupation charges @ Rs. 2500/- per month w.e.f. 1.12.2014 till the delivery of the possession. The applicants/defendants have, prima facie, an arguable case in their favour and they will suffer irreparable loss and injury, in case the application is not allowed. The non-

applicant/respondent has initiated proceedings by executing the judgments and decrees. Hence the application.

requested Ram Gopal to give him two room sets and an adjoining single room set on the first floor for his residence for some time. He promised to vacate the same after making an alternate arrangement. He was put in of permissible possession by Ram Gopal. Ram Gopal was a habitual drunkard and used to remain under the influence rt of liquor. Satya Narain, Vijay Narain and Tej Narain entered into a conspiracy and got executed a 'Will' from Ram Gopal regarding the building. The plaintiff came to know of this fact and Ram Gopal revoked the 'Will', vide Document No. 58/2013. Ram Gopal died on 8.2.2014. Plaintiff demanded the possession from the defendant but he refused to vacate the premises and hand over the possession. The plaintiff filed a civil suit, which was partly decreed by the learned Trial Court. The defendant filed an appeal. The plaintiff filed cross-objections, which were allowed and the mesne profits were awarded. The plaintiff is entitled to mesne profits, as he is being deprived of the possession. Both the learned Courts below have concurrently found the plaintiff to be entitled to possession. Therefore, it was pleaded that the decree of mesne profits be not stayed.

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3. A rejoinder denying the contents of the reply and .

affirming those of the application was filed.

4. I have heard Mr. Suneet Goel, Advocate, learned counsel for the applicants/defendants and M/s. Sheetesh Khana and Yash P. Sharma, learned counsel representing of the non-applicant/respondent and have gone through the records carefully.

5. Both the learned Courts below have concurrently found that the possession was delivered to the father of the applicants/defendants by Ram Gopal on his request till the he makes an alternate arrangement. They also held that the applicant/defendant is not entitled to retain the possession.

The learned Trial Court passed a decree for possession, which was upheld by the learned First Appellate Court. It was submitted that the plea taken by the applicants/defendants that the property was purchased by the brothers in the name of Ram Gopal is highly probable.

Both the learned Courts below have not found this plea to be correct. Section 3 of the Benami Transactions (Prohibition) Act prohibits any person from entering into a Benami transaction. Section 4 of the Act provides that no suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 60 is held or against any other person shall lie by or on behalf .

of the person claiming to be the real owner of the property.

Benami transaction has been defined in Section 2(9) as a transaction or arrangement where a property is held by a person and the consideration for such property has been of provided or paid by another person.

6. In the present case also, a plea was taken by the rt applicants/defendants that the property was purchased in the name of Ram Gopal by the funds provided by the father of the applicants/defendants and other brothers. This plea satisfies the definition of Benami transactions and such a plea cannot be taken before the Court in view of the provisions contained in Section 4 of the Benami Transactions (Prohibition) Act. It was submitted that the father of the applicants/defendants and Ram Gopal were brothers, hence the purchase of the property in the name of the brother will be beyond the purview of the Benami Transaction, as there was a fiduciary relationship. The term fiduciary relationship was explained by the Hon'ble Supreme Court in Pawan Kumar v. Babulal, (2019) 4 SCC 367= 2019 SCC OnLine SC 457, as a relationship analogous to the relationship between a trustee and the beneficiaries. It was observed:-

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"9. In Marcel Martins v. M. Printer, (2012) 5 SCC 342, a suit was filed in the year 1990 praying for a .

declaration that the plaintiffs were co-owners of certain properties to the extent of their contribution. After a full-fledged trial, the Suit was dismissed by the Trial Court but the judgment was reversed by the High Court.

10. While considering the question whether the of case of the plaintiffs would come within the purview of Sub-Section (3) of Section 4 of the Act, the matter was dealt with by this Court as under:-

rt "28. The critical question then is whether sub-section (3) of Section 4 saves a transaction like the one with which we are concerned.

29. Sub-section (3) to Section 4 extracted above is in two distinct parts. The first part comprises clause (a) to Section 4(3) which deals with acquisitions by and in the name of a coparcener in a Hindu Undivided Family for the benefit of such coparceners in the family.

There is no dispute that the said provision has no application in the instant case nor was any reliance placed upon the same by the learned counsel for the respondent-plaintiffs.

30. What was invoked by Mr Naveen R. Nath, learned counsel appearing for the respondents was Section 4(3)(b) of the Act which too is in two parts viz. one that deals with the trustees and the beneficiaries thereof and the other that deals with the persons standing in a fiduciary capacity and those towards whom he stands in such capacity. It was argued by Mr Nath that the circumstances in which the purchase in question was made in the name of the appellant assume great importance while determining whether the appellant in whose ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 62 name the property was acquired stood in a fiduciary capacity towards the respondent-

plaintiffs.

32. The term "fiduciary" has been explained by Corpus Juris Secundum as under:

rt"A general definition of the word which is sufficiently comprehensive to embrace all cases cannot well be given. The term is derived from civil or Roman law. It connotes the idea of trust or confidence, contemplates good faith, rather than legal obligation, as the basis of the transaction, refers to the integrity, the fidelity, of the party trusted, rather than his credit or ability, and has been held to apply to all persons who occupy a position of peculiar confidence toward others, and to include those informal relations which exist whenever one party trusts and relies on another, as well as technical fiduciary relations.

The word "fiduciary", as a noun, means one who holds a thing in trust for another, a trustee, a person holding the character of a trustee, or a character analogous to that of a trustee with respect to the trust and confidence involved in it and the scrupulous good faith and candour which it requires; a person having the duty, created by his undertaking, to act primarily for another"s benefit in matters connected ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 63 with such undertaking. Also more specifically, in a statute, a guardian, .

trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person, trust or estate."

33. Words and Phrases, Permanent Edn. (Vol. 16-A, p. 41) defines "fiducial relation" as of under:

"There is a technical distinction between rta "fiducial relation" which is more correctly applicable to legal relationships between parties, such as guardian and ward, administrator and heirs, and other similar relationships, and "confidential relation" which includes the legal relationships, and also every other relationship wherein confidence is rightly reposed and is exercised.

Generally, the term "fiduciary" applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations."

34. Black"s Law Dictionary (7th Edn., p. 640) defines "fiduciary relationship" thus:

"Fiduciary relationship."A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships" such as trustee- beneficiary, guardian-ward, agent-

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principal, and attorney-client" require the highest duty of care. Fiduciary .

relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and of responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when rtthere is a specific relationship that has traditionally been recognised as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer."

35. Stroud"s Judicial Dictionary explains the expression "fiduciary capacity" as under:

"Fiduciary capacity."An administrator who [had] received money under letters of administration and who is ordered to pay it over in a suit for the recall of the grant, holds it "in a fiduciary capacity"

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36. Bouvier"s Law Dictionary defines "fiduciary capacity" as under:

.

"What constitutes a fiduciary relationship is often a subject of controversy. It has been held to apply to all persons who occupy a position of peculiar confidence towards others, such as a trustee, executor, or administrator, of director of a corporation or society, medical or religious adviser, husband rtand wife, an agent who appropriates money put into his hands for a specific purpose of investment, collector of city taxes who retains money officially collected, one who receives a note or other security for collection. In the following cases, debt has been held to be not a fiduciary one: a factor who retains the money of his principal, an agent under an agreement to account and pay over monthly, one with whom a general deposit of money is made."

We may at this stage refer to a recent decision of this Court in CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497 wherein Raveendran, J. speaking for the Court in that case explained the terms "fiduciary" and "fiduciary relationship"

in the following words: (SCC pp. 524-25, para 39) "39. The term "fiduciary" refers to a person having a duty to act for the benefit of another, showing good faith and candour, where such other person reposes trust and special confidence in the person owing or discharging the duty. The term "fiduciary relationship"

is used to describe a situation or ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 66 transaction where one person (beneficiary) places complete .

38. In determining whether a relationship is based on trust or confidence, relevant to determining whether they stand in a fiduciary capacity, the court shall have to take into consideration the factual context in which the question arises for it is only in the factual backdrop that the existence or otherwise of a fiduciary relationship can be ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 67 deduced in a given case. Having said that, let us turn to the facts of the present case once .

more to determine whether the appellant stood in a fiduciary capacity vis-a-vis the respondent-plaintiffs."

7. The Hon'ble Supreme Court held in Vishram v.

"23. In this context, the question of Benami ownership also surfaced. There is no dispute that in the revenue records property stood in the name of Vasudev Govekar and not Jagannath Govekar. The first appellate court rightly held that the plea with regard to the real owner of the property being Jagannath Govekar could not be gone into as it was barred by the provisions of Section 4(2) of the Benami Act. Though we do not find any merit in the arguments of the appellants that the Benami Act is not applicable, in any case, there is hardly any material produced by the defendants to support that the real owner was Jagannath Govekar. This claim is made only on the ground that it is Jagannath Govekar who had got the suit property acquired in the name of his son Vassudev Govekar. That by itself would not make Jagannath Govekar the owner of the suit property."

decree is put to execution, the applicants/defendants can be deprived of the possession and thus they will suffer an irreparable loss and injury, which cannot be compensated in terms of money, in case it is found during this appeal of that their eviction was unauthorized. Therefore, they are entitled to retain the possession till the adjudication of rt their rights.

"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705, once a decree for eviction has been passed, in the event of execution of a 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. It has also been held that with effect from the date of the decree of eviction, the tenant is liable to pay mesne profits or ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 69 compensation for the 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 prevalent prior to the date of decree.

6. The learned counsel for the appellants submitted that the appellants cannot be held liable to pay anything more than the standard rent of the premises, in spite of the decree for eviction having rt been passed as the same is sub judice. This submission needs a summary dismissal in view of the judgment of this Court in Atma Ram Properties (P) Ltd.'s case (supra). Both the parties have 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. Canara Bank on the first floor of this building is paying rent @ Rs. 25/- per sq. ft. other than maintenance and municipal taxes. One Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ Rs. 32/- per sq. ft. Taking an overall view of the material made available by the parties, we think that the appellants should, from the date of the decree of the eviction, pay mesne profits/compensation for use and occupation @ Rs. 15/- per sq. ft. subject to final determination of the same by a competent forum."

10. Therefore, a person found to be in unauthorized possession is bound to compensate the owner by the payment of mesne profits as per the judgments of the Hon'ble Supreme Court of India.

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11. It was submitted that the judgments were .

delivered in the context of the Rent Control Act and they cannot be applied to the cases pending before the Civil Courts. It is difficult to accept the submission. The Hon'ble Supreme Court of India directed the payment of of compensation to the owner, who has been deprived of the use of his property. The property and owners remain the rt same under the General Law or the Rent Control Act. It is difficult to see that the position of an owner should be better under the Rent Control Act than an owner under the General Law. Both the owners are being deprived of the use of the property and they are entitled to be compensated for the loss being suffered by them. Hence the principles laid down by the Hon'ble Supreme Court can be applied to the present case as well. This is also apparent from the judgment of the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 = 2005 SCC OnLine SC 1583 wherein a reference was made to Order 41 Rule 5 of CPC. The relevant paras of the aforesaid judgments are as under:

9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be a 'substantial loss' to the party applying for a stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 71 Order 41 of the Code. Clause (c) of the same provision mandates security for the due .

performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of an order of stay. However, this is not the only condition, which the appellate Court can impose. The power to grant stay is discretionary of and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the rt appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for an order of stay must do equity to seek equity. Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. Vs. State of M.P. & Ors., (2003) 8 SCC 648, this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand

(a) the delivery to it of benefit earned by the opposite party under the interim order of the High ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 72 Court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction .

of the Court. In our opinion, while granting an order of stay under Order 41 Rule 5 of the CPC, the appellate court does have jurisdiction to put the party seeking a stay order on such terms as would reasonably compensate the successful party at the end of the appeal in so far as those proceedings are of 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 a stay in an exceptional case it may direct rt 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.

After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis and Ors. Vs. Bombay Municipal Corporation and Ors. - (1985) 3 SCC 545, -

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

continue to remain a tenant and would not become a person in unlawful possession of the property until the decree has achieved a finality from the highest forum upto which the litigation is pursued. Reliance was placed on the decision of this Court in Smt. Chander Kali Bai & Ors. Vs. Shri of Jagdish Singh Thakur & Anr., (1977) 4 SCC 402, followed in Vashu Deo Vs. Balkishan, (2002) 2 SCC

50. This submission raises the following two issues:- (i) in respect of premises enjoying the rt protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent?

12. Therefore, the submission cannot be accepted that the principles will only apply to the cases under the Rent Control Act and not to the general law.

13. The learned First Appellate Court had ordered the payment of mesne profits @ 2500/- per month for one ::: Downloaded on - 26/08/2023 20:33:57 :::CIS 74 double room and one single room set located in the urban .

area of Rohroo. The amount of Rs 2500/- per month appears to be reasonable keeping in view the location of the premises where it is located. Hence, it will not be proper to stay the execution and operation of the judgment and of decree passed by the learned Additional District Judge (CBI Court), Shimla. However, in order to balance the equities, it rt is directed that the amount shall be deposited before the learned Trial Court on the 10th of every month and shall not be released without a specific order from this Court. The amount shall be invested in the fixed deposit to ensure that none of the parties loses interest. In case of a failure to deposit the amount, the order granted by this Court shall stand automatically vacated and the plaintiff will be entitled to execute the judgment and decree as per law.

Such a course will not harm any of the parties and will protect the interests of both parties.

The application stands disposed of.

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RSA Nos. 197, 217, 188 and 190 of 2022 .

List all these appeals for final hearing in due course.

(Rakesh Kainthla) Judge of 25th August, 2023.

(Karan) rt ::: Downloaded on - 26/08/2023 20:33:57 :::CIS

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Tej Narain vs Akash Gupta on 25 August, 2023