Rajasthan High Court - Jaipur
Amrit Kumar Garg vs Addl. Distt. Judge No. 3 And Anr. on 11 December, 2007
Equivalent citations: RLW2008(2)RAJ1547
Author: Prem Shanker Asopa
Bench: Prem Shanker Asopa
JUDGMENT Prem Shanker Asopa, J.
1. By this writ petition, the petitioner-landlord has challenged the order dated 28.10.2005 (Annex. 1) whereby the Addl. Distt. Judge No. 3, Ajmer allowed the application Under Order 41 Rule 5 read with Section 151 CPC filed by the defendant-tenant-respondent and passed interim stay order for payment of rent @ Rs. 80/- per month with other conditions of Order 41 Rule 5 CPC.
2. Submission of counsel for the petitioner-landlord is that in case of grant of interim stay order against passing of the decree of eviction, he is entitled to get rent @ Rs. 30,000/- per month by way of mesne profits. The counsel placed reliance on two judgments of this Court in Atmaram Property Pvt. Ltd. v. Federal Motors Pvt. Ltd. 2005(1) RCR 1 and Anderson Wright and Co. v. Amar Nath Roy 2005(1) RCR 624. Counsel also submitted that the petitioner-landlord has placed sufficient material on record to substantiate the aforesaid claim of Rs. 30,000/- but the Court below has ignored the same and passed the interim order for payment of Rs. 80/- per month which is the original rent.
3. Submission of counsel for the respondent-tenant is that it is true that under Order 41 Rule 5 CPC the Court can put condition which may be something more than the rent but the same should be reasonable and further should not be so onerous and exorbitant that the tenant is unable to pay and is liable to be evicted on account of non-compliance of the interim order.
4. I have gone through record of the writ petition and further considered rival submissions of the counsel for the parties.
5. In Atma Ram Properties (P) Ltd. (supra) it has been held by the Supreme Court that prayer for grant of stay by the tenant is to be dealt within the exercise of equitable discretionary jurisdiction of the appellate Court. The appellate Court has jurisdiction to put the appellant on such reasonable terms as would in its opinion reasonably compensate the decree holder for the loss occasioned by the delay in execution of decree by grant of stay order.
6. In Anderson Wright and Co. (supra), the Supreme Court has also considered the said judgment of M/s. Atma Ram Properties (P) Ltd., and held that the condition of higher amount can be treated as mesne profit or compensation for use and occupation or the loss occasioned to landlord by delay in execution. Paras 5 and relevant portion of para 6 of the judgment in Anderson Wright and Co. (supra) read as under:
5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. , once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the appellate Court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of appeal being dismissed. It has also been held that with effect from the date of decree of eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was 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 subjudice. This submission needs a summary dismissal in view of the judgment of this Court in Atma Ram Properties (P) Ltd.'s case (supra)....
7. In both the above cases, the Supreme Court has taken the view that the amount should be reasonable. This Court in the judgment reported in Madan Bansal v. Ramnarayan 2006 (2) RLW 1448 and Om Prakash v. Umrao and Ors. 2007 (2) DNJ (Raj.) 928 has considered the aforesaid two judgments of the Supreme Court in Atma Ram Properties (P) Ltd. and Anderson Wright & company (supra) and held that the landlord decree holder should reasonably be compensated for delay in execution of decree. Paras 9 and 10 of the judgment in Madan Bansal v. Ramnarayan Sharma (supra) and paras 3 and 4 of the judgment in Om Prakash v. Umrao and Ors. (supra) read as under:
Paras 9 and 10 of Madan Bansal v. Ramnarayan Sharma 2006 (2) RLW 1448
9. The Hon'ble Supreme Court again in Anderson Wright and Co. v. Amar Nath Roy 2005 DNJ (SC) 562 : RLW 2005(3) SC 425, while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra), reiterated the same proposition of law.
10. The learned Counsel for both the parties have not disputed that the agreed rent of the shop in dispute was Rs. 100/- per month in the year 1977 and the decree of eviction in favour of the plaintiff was passed in the year 1996 and the first appeal of defendant was dismissed in 2001. This second appeal was admitted by this Court and stayed the execution of the eviction decree. The disposal of the second appeal is likely to take time looking to the long list of pending old second appeals. In these circumstances I am of the view that the applicant respondent is entitled to a suitable direction in his favour directing the defendant-appellant to pay him suitable compensation by way of mesne profit for use and occupation of the rented premises. The plaintiff has placed on the record a copy of the rent-note of another shop which is situated nearer to the shop in dispute or in the same locality. It has been mentioned in the application that in case the suit property is let out today, then the plaintiff may earn monthly rent of Rs. 4000/-. The execution of rent-note in between Smt. Savitri and Naresh Kumar in respect of another shop, has not been disputed by the defendant-appellant and his only submission is that market rate of rent of suit premises is not more than Rs. 500/- per month. The exact rate of monthly mesne profit, which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises, can only be determined after affording an opportunity to both the parties and it may further delay the matter, therefore, I think it fit and proper to determine the reasonable mesne profit on the basis of facts and evidence available on record.
Paras 3 and 4 of Om Prakash v. Umrao and Ors. 2007 (2) DNJ (Raj.) 928.
3. Learned Counsel for the respondent has brought to the notice of this Court a Judgment of this Court in the case of Babu Lal and Ors. v. Sant Kumar reported in 2007 (2) RLW 962 wherein this Court while dealing with the powers of the appellate Court under Order 4 Rule 5 CPC has clearly laid down following the judgments of the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Limited and Anderson Wright and Company v. Amar Nath Roy reported in 2005 DNJ (SC) 562 that the appellate Court has jurisdiction to put the applicant under Order 41 Rule 5 of CPC on such reasonable terms as would, insits opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour, in the event of the appeal being dismissed. The Court held in para 9 that as per the provisions of Section 151 of the C.P.C. It is clear that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make stay order as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
4. The mesne profit is the compensation to the landlord. It is required to be paid during the pendency of appeal to compensate him in the monetary terms while he is deprived of the user of the property as the lit is pending in the appellate Court. In the present case, the mesne profit were fixed by the trial Court as Rs. 400/- per month vide order dated 26.7.1988. Almost nineteen years have already rolled by and still the final hearing of the present second appeal is not nearby and it may take few years time for hearing and deciding the present appeal. This Court finds no justification in the argument of the appellant-tenant that in such a lengthy period of time, the landlord should be deprived of making a prayer to the Court for enhancement of the mesne profit. The argument of Mr. Bhandari is, therefore, devoid of any merit and is liable to be rejected.
8. A perusal of the aforesaid two judgments of the Supreme Court and two judgments of this Court would reveal that the same relate to the mesne profit as conditions to be imposed by the appellate Court while staying decree of eviction under Order 41 Rule 5 CPC, therefore the same are applicable and finding of the trial Court non-applicability of the said judgments is erroneous.
9. In the two judgments of the High Court (i) Madan Bansal v. Ramnarayan Sharma (supra) and (ii) Om Prakash v. Umrao and Ors. (supra) the application was filed in second appeal before this Court along with documents, therefore, mesne profits were determined by this Court. Here, in the instant case, appeal is pending before the first appellate Court where documents have also been filed in support of the respective contentions of the parties.
10. I am of the considered view that the condition imposed under Order 41 Rule 5 CPC is appeal against decree of eviction, the appellate Court while determining the quantum of 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. However, the same should be reasonable to compensate as mesne profits to the decree holder for the loss occasioned by delay in execution of the decree. At the same time, the condition should not be so onerous and exorbitant that the tenant is unable to pay the same which would result in non compliance of the interim order and execution of the eviction decree and the remedy of appeal becomes so onerous and burdensome that it is rendered out of reach of the tenant.
11. The impugned interim order dated 28.10.2005 passed by the first appellate Court determining Rs. 80/- per month as mesne profit, without considering the aforesaid aspect of the matter, is not tenable in law and therefore, the same is set aside. The case remanded back to the first appellate Court (Additional Distt. Judge No. 3, Ajmer) to re-fix the amount of monthly mesne profit as condition of Order 41 Rule 5 CPC-for passing of the interim order within a period of two months.
12. Till the aforesaid order is passed, the decree of the trial Court shall not be executed against the respondent. The writ petition is allowed as indicated above.