In my opinion if Interim Application as per the ratio laid down by the judgment of Atma Ram Properties (supra) is preferred in a short span of time after the Appeal is admitted and stay is granted to the execution of eviction decree, the same can be decided by Appellate Court on its own merits, by putting the tenant on reasonable terms.
But certainly such an application preferred much later for fixing market rent/compensation, after the Appeal is ready for final hearing, would not be entertainable when both the parties were heard at the time of Admission of Appeal and the execution of judgment and decree of eviction was stayed.{Para 7}
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 15729 OF 2023
IN
CIVIL REVISION APPLICATION 646 OF 2012
Brijbhushan Chandrabali Shukla Vs Shri. Mahendra Yadav, S/o
Lavjari S. Yadav
CORAM : RAJESH S. PATIL, J.
DATED : 12 JANUARY 2024.
1. This Interim Application has been filed by
Respondent/Landlord seeking a relief of monthly compensation
payable @ Rs.70,000/- from passing of the Trial Court decree, by the
Tenant, as per the ratio laid down by Supreme Court in Atma Ram
Properties V/s. Federal Motors reported in (2005) 1 SCC 705.
Legal Frame Work :
2. It is necessary first to examine the ratio laid down by the
Supreme Court in the judgment of Atma Ram Properties (Supra).
2.1. In the said judgment Supreme Court held that while
passing an order of stay to eviction decree, the Appellate Court does
have jurisdiction to put the applicant on such reasonable terms as
would be reasonable to compensate the decree holder for loss
occasioned by delay in execution of decree by grant of stay order. In
the said proceedings, eviction was sought on the ground of
subletting. The decree of eviction was passed. In an Appeal preferred
under Section 38 of the Delhi Rent Control Act, 1958, the Rent
Control Tribunal directed the eviction to remain stayed but subject to
the condition that the respondent shall deposit in the Court
Rs.15,000/- p.m., in addition to the contractual rent which may be
directly paid to the Appellant. Paragraph No.19 of the said judgment
reads as under :-
“19. To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of
Order 41 of the Code of Civil Procedure, 1908, the
appellate Court does have jurisdiction to put the
applicant on such reasonable terms as would in its
opinion reasonably compensate the decree-holder for
loss occasioned by delay in execution of decree by
the grant of stay order, in the event of the appeal
being dismissed and in so far as those proceedings
are concerned. Such terms, needless to say, shall be
reasonable;
(2) in case of premises governed by the provisions of
the Delhi Rent Control Act, 1958, in view of the
definition of tenant contained in clause (l) of Section
2 of the Act, the tenancy does not stand terminated
merely by its termination under the general law; it
terminates with the passing of the decree for eviction.
With effect from that date, the tenant is liable to pay
mesne profits or compensation for use and occupation
of the premises at the same rate at which the landlord
would have been able to let out the premises and earn
rent if the tenant would have vacated the premises.
The landlord is not bound by the contractual rate of
rent effective for the period preceding the date of the
decree;
(3) the doctrine of merger does not have the effect of
postponing the date of termination of tenancy merely
because the decree of eviction stands merged in the
decree passed by the superior forum at a latter date.”
(Emphasis Supplied)
2.2. Hence, in the judgment of Atma Ram Properties (Supra)
Supreme Court, held that if a tenant suffers a decree of eviction,
Appellate Court while granting stay to eviction decree, can put the
tenant on reasonable terms, to compensate the decree holder for loss
suffered by delay in execution of decree due to stay granted. The
Court further held that after passing of eviction decree, in Appeal if
stay to eviction decree is sought, the tenant is liable to pay mesne
profit or compensation for occupation of premises from the date of
decree, at the same rate at which Landlord would have been able to
let out the premises and earn rent if tenant had vacated.
2.3. I would like to point out here that in Atma Ram
Properties (supra), the eviction decree was passed on 19 March
2001. In an Appeal preferred by tenant, the decree of eviction was
stayed on 12 April 2001, subject to condition that the tenant shall
deposit in the Court Rs.15,000/- p.m. in addition to contractual rent.
Hence, the condition to deposit the market rent was imposed in less
than one month from passing of eviction decree.
3. Correspondingly, in the matter of Sulochana Jadhav Vs.
Jogindersingh Amarsingh (Writ Petition No. 5658 of 2004), in Civil
Application No. 688 of 2009, this Court by its order dated 4 March
2010, rejected the Civil Application seeking direction against the
tenant to deposit the amount of compensation as per the market
value of the suit property, filed five years after admission of Writ
Petition. The said order dated 4 March 2010, reads as under :-
“The Applicant who is the Respondent in the Writ Petition
has filed this application. The Applicant is the landlord and
the Respondent in the application (Petitioner in Writ
Petition) is the tenant. Prayers in these applications are for
a direction against the Respondent/Tenant to deposit the
amount of compensation at the market value and for
appointment of a Court Receiver. Perusal of the record
shows that at the time of hearing as to admission of the
Writ Petition, the Applicant ( Respondent in the Writ
Petition ) was heard and interim relief was granted after
hearing the Advocate for the Applicant. Except for the fact
that the Writ Petitions are not heard for final disposal, no
change in the circumstances is brought on record. Granting
relief in these applications will amount to modification of
an order granting interim relief after hearing both the
parties. Hence, as of today, no case is made out for grant of
any relief. The Applications are rejected. If Writ Petitions
are ready for final hearing, the same shall be placed for
final hearing board of 5th April, 2010.”
4. Is is also necessary here to discuss the judgment of Super
Max International Pvt. Ltd. V/s. R. M. Choksey & Ors . reported in
(2009) 3 BCR 99. The facts in the said judgment where, that the Writ
Petition filed by tenant against eviction decree was “Admitted” on 22
February 2006, thereafter, the landlord on 2 July 2008 preferred
Civil Application on the basis of Supreme Court judgment of Atma
Ram Properties, praying that during the pendency of the Writ
Petition, the tenant be directed to pay interim monthly compensation
as per market rate. In Para No. 7 and 8 of the judgment it was held
that, keeping in mind that Writ Petition is not likely to reach for
hearing for quite some time, the landlord who has succeeded in
getting decree of eviction is entitled to claim suitable interim
compensation to meet the ends of justice. The fact that no
arrangement for imposing condition, now prayed by the landlord,
was canvassed on 22 February 2006 at the time of Admission, will
come in the way of the landlord to call upon the Court to impose
appropriate condition in terms of the legal position stated by
Supreme Court in Atma Ram Properties case was the argument on
behalf of Tenant. Indeed, the question whether the landlord would be
entitled for arrears of interim monthly compensation with
retrospective effect in a matter within the discretion of the Court. The
Court may confine the relief to the landlord from the date of the
filing of the present application. That would meet the ends of justice
and address the concern of the tenants as well to that extent.
4.1. I pause here to observe that, in R. M. Choksey (supra)
Writ Petition was admitted on 22 February 2006, after hearing both
sides. Civil Application seeking direction to pay interim compensation
as per ratio of Atma Ram Properties (supra) was filed on 2 July 2008.
Hence the application as per Atma Ram Properties (supra) was filed
within 18 months after admission of Writ Petition. The Single Judge
of this Court, fixed monthly compensation at the rate of Rs.33,333/-
payable from the date of filing of civil application by landlord.
Facts In Present Proceedings :
5. In this background, the fats in the present proceedings
are to be seen. The Civil Revision Application was admitted by order
dated 17 October 2012. Record shows that at the time of admission
Respondent was heard. Office remark shows that record and
proceedings have been received on 21 August 2013. The Civil
Revision Application is ready for final hearing.
6. The present Interim Application has been filed on 31 July
2023 claiming therein payment of market rent at the rate of
Rs.70,000/- per month by the Original Defendant from date of the
trial court decree dated 23 September 2009. The Interim Application
has been filed after 11 years, since Civil Revision Application, has
been admitted. No change in the circumstances is brought on record.
According to me in such a situation granting of any interim relief in
this Interim Application will amount to modification of the order
passed while Admitting the Civil Revision Application.
7. In my opinion if Interim Application as per the ratio laid
down by the judgment of Atma Ram Properties (supra) is preferred
in a short span of time after the Appeal is admitted and stay is
granted to the execution of eviction decree, the same can be decided
by Appellate Court on its own merits, by putting the tenant on
reasonable terms.
But certainly such an application preferred much later for
fixing market rent/compensation, after the Appeal is ready for final
hearing, would not be entertainable when both the parties were
heard at the time of Admission of Appeal and the execution of
judgment and decree of eviction was stayed.
8. In the present proceedings, considering the facts and
taking into account the law laid down by Supreme Court and by this
court in the above discussed judgments, I am of the view that there is
no merits in the Interim Application and the same must fail and is
dismissed.
9. Civil Revision Application be placed for final hearing on
12 February 2024 at 2.30 p.m.
10. The parties to file compilation of documents, short
synopsis along with their proposition of law and authorities relied
upon by them, within one week from today.
(RAJESH S. PATIL, J.)
No comments:
Post a Comment