S.K.Rai vs M/S B.Tea Co.
2018 Latest Caselaw 763 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved Judgment
 

 
Court No. - 19
 

 
Case :- CIVIL REVISION No. - 111 of 1985
 

 
Revisionist :- S.K.Rai
 
Opposite Party :- M/S B.Tea Co.
 
Counsel for Revisionist :- R.C.Bajpai,H.S.Sahai,P.C.Rastogi,P.K.Khare,Shyam Mohan Pradhan,Z.Jilani
 
Counsel for Opposite Party :- R.N.Trivedi,Apoorva Tewari,Madhav Chaturvedi,P.K.Khare,P.K.Sinha
 

 
Hon'ble Vivek Chaudhary,J.

1. Heard Sri P.K. Khare, learned counsel for revisionist-tenant and Sri Apoorva Tewari, learned counsel for respondent-landlord.

2. Present SCC revision is filed by the tenant challenging the judgment and order dated 31.08.1985 whereby the SCC Suit No.2 of 1979 for his ejectment and for recovery of mesne profits, amounting to Rs. 25078.88 and pendalite and for future mesne profits @ Rs.1150/- per month till actual eviction, is decreed with cost.

3. Facts of the case are that a Cinema Hall, known as Sunder Talkies, Unnao, was owned by the respondent. The said property was leased to the revisionist on 26.10.1964 on a monthly rent of Rs.1150/-. The tenancy was to commence from the date when the lessee secures the license for exhibition of films and running cinema. An agreement was signed between the parties, however, the same could not be properly stamped and registered. The possession of the property was handed over to the lessee without there being any formal registered agreement executed and even later formalities were not completed. The revisionist secured license for running the cinema hall on 14.04.1965 and the tenancy also commenced from the said date. On 07.06.1968, the respondent issued notice requiring the revisionist to vacate the premises and handover the physical possession of the building along with the furniture and fixtures on expiry of 30 days of the receipt of notice. The said notice was served upon the revisionist on 10.06.1968. On 10.07.1968, the respondent got the possession of the property. However, revisionist strongly objected to the said eviction on the ground that his manager in collusion with the respondent illegally handed over the possession. It appears that, on a representation dated 17.07.1968 of the revisionist, the District Magistrate, Unnao intervened in the matter by his order of the same date i.e. 17.07.1968 and restored possession to the revisionist. The said order of District Magistrate provided that the cinema license is to expire on 31.07.1968 and on its' expiry, the revisionist would handover the possession of the property back to the respondent. Under the aforesaid order of the District Magistrate, the possession of the property was restored on 20.07.1968 and thereafter, despite writ petitions being filed, the said possession was never returned by revisionist and hence, the suit.

4. Initially, the suit was filed on 29.04.1971, as regular suit no.10 of 1971, praying for decree of eviction and possession of the property along with all equipments, fixtures etc. and for decree of mesne profits for wrongful possession and for future mesne profits. During pendency of the suit U.P. Civil Laws Amendment Act, 1972 was notified and the suit was transferred to the Judge, Small Cause Court by a detailed reasoned and speaking order dated 08.02.1979. The regular suit no.10 of 1971, after the said transfer, was registered and renumbered as SCC Suit No.2 of 1979. By the impugned order dated 31.08.1985, the suit has been decreed by the Court below, directing eviction of tenant and mesne profits.

5. The first submission for challenging the impugned order by the revisionist is, that, in view of relief sought in the plaint, the Small Cause Court, Judge had no jurisdiction to hear the matter and the suit should have continued as a regular suit and heard by the civil court as a regular suit. The attention is drawn to the relief sought in the plaint which reads:-

"The plaintiff, therefore, claims :

A. A decree for possession of the premises known as Sunder Talkies Unnao, with all equipments furnitures etc. as per details given in annexures 'A' to this plaint together with further addition, if any, bounded as given below by the ejectment of the defendants though Court:

Boundary

East: Beni Grover land belonging to Sri Wasi Ahmad.

West: House of late Sultan Mirza

North: Ganga Charan Awasthi Road

South: Grove land belonging to Shri Wasi Ahmad.

B. A decree for Rs.25,078.88 being the same mesne profits for wrongful use and occupation due till the date of this suit.

C. A decree for pendentelite and future mesne profits @ Rs.1,150/- per month tentatively valued at Rs. 1,150.00

D. Cost of the suit

E. Any other relief."

6. Attention is also drawn to annexure A to the plaint, which details the equipment and furniture, which were given along with the building. To give force to his submission, learned counsel for revisionist places reliance upon a judgment of Allahabad High Court in case of Poorachand Seth Vs. Sri Prabhat Kanwar reported in 1978 ALJ page 486. In the said case also a picture hall, namely, Taj Talkies, Muzaffarnagar, was given on rent along with machinery, furniture and fixtures. Relevant paragraph of the said judgment reads:-

"7. The question then arises as to what was the dominant intention of the parties in the instant case when they entered into a transaction, whether only cinema building was leased out to the defendant along with the fittings and fixtures for a beneficial enjoyment of the building. Dominant intention of parties could easily be discerned from the material terms of the lease if executed between the parties. In the instant case, no formal lease containing terms and conditions of the transaction was executed. In the absence of any written document, dominant intention of the parties can be ascertained from the pleading of the parties, evidence produced by them and other circumstances available on the record. According to the plaint allegations, the plaintiff opposite party had let out the cinema building to the defendant along with a number of machineries, fixtures and accessories necessary for carrying on the business of exhibiting cinematograph films in the building. In para 5 of the plaint, it was asserted that the plaintiff obtained licence for exhibition of cinema films in his name and necessary certificates for running cinema business and thereafter he handed over possession of the cinema building to the defendant on 7-7-1972 when the first inaugural show took place. The plaintiff claimed relief for a decree for possession of the cinema building and also for possession of machineries and fittings and accessories as detailed in the schedule to the plaint. The schedule to the plaint contains list of goods, furnitures, electrical machinery and engines, these include 702 chairs, cooling plant, screen, show cases, power and electrical cases, control room, switch boards, projectors, fire extinguishers, dozen ceiling fans, engine patrified, made in England, complete in all respects etc.

8. Parties led oral and documentary evidence before the trial court which indicate dominant intention of the parties. Ex. A-2 as the power of attorney executed by the plaintiff and his wife Smt. Manju Rani on 21-1-1972 authorising the defendant to act on their behalf and to make applications for renewal of the cinema licence and to do all acts which may be necessary and connected therewith. Recitals contained in the document show that the lease was initially for a period of ten years, with a stipulation for renewal for a period of another five years. Ex. A-3 is a letter signed by the plaintiff and his wife Smt. Manju Rani dated 26th June, 1972, addressed to the District Magistrate informing him that they had completed all the required formalities with regard to the issue of cinema licence, with a request that the name of Pooran Chand Seth be also included in the licence as they had leased their right to run the cinema, new Taj Talkies, to him under an agreement dated 21-1-1972.. Exts. 3 and 4 are letters dated 1-7-1972 exchanged between the plaintiff and defendant. On a perusal of the contents of these letters it appears that under the terms of the lease the plaintiff had agreed that some of the machines necessary for carrying on cinema business were to be fixed by the defendant while the plaintiff had let out machineries and engines fixed for the purpose of running cinema to the defendant and the plaintiff had agreed to bear the cost of maintenance of those machineries. The agreement further

stipulated that if the plaintiff failed to maintain generators and all other equipment the defendant was Permitted to maintain the same and charge the plaintiff for the costs thereof. Anup Singh (D.W 1), defendant's Mukhtar-e-Aam, in his testimony before the trial court stated that the plaintiff had let out running cinema business to the defendant. He asserted that even though some of the fixtures and machineries for running the cinema business had been purchased by the defendant the plaintiff had agreed to pay for the same. The plaint allegations, relief claimed by the plaintiff and the oral and documentary evidence as discussed above clearly show that along with the cinema building the plaintiff had let out to the defendant machineries and equipments necessary for running the cinema business in the building. The screen, generator, cooling plants, engine, 702 chairs and various other fittings as mentioned in the plaint could not be necessary for beneficial enjoyment of the building. If the plaintiff had let out only cinema building to the defendant there was no occasion for letting out the machineries and furniture as detailed in the plaint. The plaintiff handed over possession of the cinema building to the defendant only after obtaining licence under the U.P Cinematograph Act, 1965, for the purpose of exhibiting cinematograph films. This was not necessary if the cinema building alone was intended to be let out to the defendant.

9. The plaint allegations, evidence on record as well as the circumstances discussed above leave no room for any doubt that the plaintiff had not only let out the cinema building but also machinery and accessories necessary for running the cinema business in the building in question. The dominant intention of the parties when they entered into the transaction was to let out the cinema licence and the machineries and fixtures necessary to carry on the business of cinema in the building in question. The primary object which the lease was intended to cover was the cinema business including the machineries and accessories necessary for the said purpose and the building in which the machineries and fixtures were located was incidental to the primary purpose. I, therefore, held that the lease in question was not in respect of a building as defined in the Explanation to Article 4 of the second schedule to the Small Cause Courts Act. Consequently, the Judge Small Cause Court, had no jurisdiction to take cognizance of the plaintiff's suit. (emphasis added)"

7. The said judgment of this Court places reliance upon the judgment of Supreme Court in Uttamchand Vs. M. Lalwani, AIR 1965 Supreme Court 716 and Dwarka Prasad Vs. Dwarka Dass AIR 1975 Supreme Court 1758= (1976) 1 SCC 128. Thus, submission of counsel for revisionist is that in the present case also, suit property is a picture hall along with fixtures and fittings and thus, primary object was to lease out a business. Thus, it is regular Civil Court and not the Small Cause Court which has jurisdiction.

8. In reply learned counsel for respondent submits that the said argument was never not raised before the court below. Further issue of jurisdiction of the Small Cause Court is already decided between the parties by judgment and order dated 31.08.1985, whereby the suit was transferred to the Small Cause Court. The said order dated 31.08.1985 was never challenged and even today is not under challenge and, therefore, has attained finality. The rejoinder of learned counsel for revisionist is that the same being a question of jurisdiction, can be raised at any stage. Since it is question of jurisdiction, I find it appropriate to decide the same on merits.

9. On merits also, learned counsel for respondent denies the said submission and further places reliance upon paragraph 3 and 5 of the written statement which reads as follows:-

"3. The content of paragraph 3 of the plaint are not quite correct, and the same are not admitted as stated therein. The true fact is that the said premises was let out by the plaintiff to the defendants on yearly tenancy with a provision for a monthly rental of Rs. 1150.00. At the time of letting the said premises had some equipment and furniture, all of which was in a state of utter disrepair and in an absolutely unusable condition. It was all worthless and cinema was lying closed for several years at the time of letting. At the time of letting a lease deed was executed by the plaintiff and defendant on 20th October, 1964, wherein all the terms and conditions of the lease were recorded. A list of the equipment and furniture which was handed over at the time of letting was also annexed to the said lease deed. The plaintiff has deliberately suppressed the said lease deed and the suit is liable to be dismissed on this ground alone. It is true that the tenancy commenced from 14th April, 1965. Save and except what is stated above the rest of the contents of paragraph 3 of the plaint are not admitted and the plaintiff is put to strict proof of the same.

5. The contents of paragraph 5 of the plaint are not admitted as stated therein. The premises at the time of letting was lying in state of utter disrepair and it was lying closed for several years. The equipment and furniture contained therein was also in an utterly unusable state and broken down. It was agreed between the plaintiff and defendant at the time of letting the Premises on rent, that defendants may make suitable improvements repair and replacement of equipments and furniture in the premises and all such expenditure shall be paid out of the rent. The defendants had to incur an expenditure of Rs. 42449.80 paisa in getting the premises and the equipment repaired and restored and in making additions and improvements in the premises and the equipment and furniture. The defendants sent to the plaintiff a true and correct account of the aforesaid sum of Rs. 42449.90 paisa which had been spent by them in repairing, restoring and making improvements and additions to the said premises and the equipment and furniture therein. It was agreed upon by the plaintiff and the defendants that the defendants will be entitled to deduct as sum of Rs. 500.00/- every month out of rent payable to the plaintiff until the aforesaid amount spent in improvements, additions, repairs and restoration is fully adjusted and set off. It is incorrect that the defendants submitted accounts of a sum of Rs. 34510.46 only. It is also false that the sum of Rs. 34510.46 P has been paid off by the plaintiff to the defendants." (emphasis added)

10. From a bare perusal of the aforesaid pleadings made in the written statement by the revisionist it is clear, that, when the property was given on rent, the business of cinema was closed for many years and cinema was not running. Even the premises, equipments and furniture were not in such a condition that the same could be immediately put to business and used as a cinema. It is also admitted by the tenant that he incurred heavy expenses in its repair, maintenance and updation for making it worth for starting his cinema business. There was no long-term lease between the parties to show that the intention was to run a business over a long period of time. There is no evidence before this Court to show that the respondent in any manner helped the revisionist in obtaining a license or transferred his own license to the revisionist or took him as a co-licensee in his license, as was the case in the judgment relied upon by the revisionist. There is no evidence placed before this Court to show that there was any restriction on the revisionist to use the premises only for cinema business. The respondent did not execute any power of attorney in favour of the revisionist to use their license or to act on their part as their representative in running a cinema business. In fact, admittedly, the premises were not being used as a cinema and cinema business was not running for the last several years. The revisionist has not relied upon any evidence in support of the aforesaid argument and the same is made only on the basis of the pleadings made in plaint and relief sought therein. It is the duty of the Court that while considering the plaint, to also consider the case setup by the revisionist in his written statement. From the pleadings between the parties alone, it cannot be established, as argued by counsel for revisionist, that it was not a property but a business which was leased out by the respondent to the revisionist. More so, in absence of any evidence to that effect, now at the revisional stage, this Court cannot reach such a conclusion. In the given facts, the revisionist had taken a building on lease along with certain dilapidated machineries and fixtures, which he got repaired and updated for starting the cinema afresh. Thus, the judgment referred to by the learned counsel for the revisionist tenant is not applicable to the facts of the present case. Therefore, the suit is rightly heard by the Small Cause Court as per proviso to Section 15 of the Small Cause Court Act.

11. Next submission of counsel for the revisionist is that once a written agreement was in existence, even if the same was not legally valid, the oral agreement would not come into existence. Reliance is placed upon a Judgment of Supreme Court in Case of Anthony Vs. K.C. Ittoop and Sons and Others, reported in (2000) 6 SCC page 394. Learned counsel for the revisionist fairly concedes that original agreement is not on record and only a typed copy thereof is on record. His submission is that Court below ought to have summoned the said agreement, impounded the same for the deficiency of the stamp duty on it, and thereafter taken it into consideration after payment of the stamp duty. Learned counsel for respondent submits that once the original agreement is not on record, there is no question of taking the same into consideration. He further submits that the said agreement was required to be registered, as mandated by Section 107 of Transfer of Property Act and even otherwise, since the document is not filed before the Court, it could not impund the same. Therefore, the said document cannot be read in evidence in any manner whatsoever. There is nothing on record to show that the revisionist ever moved any application before the Court below for summoning of the original agreement. There is no ground in the revision challenging any order by which such an application is rejected. Therefore, now at this stage, the revisionist cannot raise this argument that the Court below ought to have summoned the said agreement and considered the same.

12. Section 107 of the Transfer of Property Act, 1882 is relevant for the issue involved, which reads as:-

"107. Leases how made.- A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

73[All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.]

74[Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government may, 75[***] from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]

STATE AMENDMENTS

Uttar Pradesh

Amendment of Section 107.- In Section 107 of the principal Act:

(a) for the second paragraph, the following paragraph shall be substituted namely:

"All other leases of immovable property may be made either by a registered instrument or, by an agreement, oral or written, accompanied by delivery of possession.";

(b) the third paragraph and the proviso shall be omitted. [vide U.P. Act 57 of 1976, S.31 (w.e.f. 1-1-1977]."

13. Admittedly, the said agreement is of the year 1964 and is not registered. The U.P. amendment has come in the year 1977 and, hence, the same is not applicable. The requirement of registration of the lease deed, under Section 107 of the Transfer of Property Act, and the impact of its not being registered was referred to a Larger Bench (a bench of two Hon'ble Judges) of this Court in case of Zarif Ahmad and Another Vs. Satish Kumar and Another reported in AIR 1983 Allahabad 164. In the said case, the lease deed was of the year 1969. The Division Bench held as follow:-

"3. Section 17(1) (d) of the Indian Registration Act provides that no lease of any immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, be created other than by a registered document. This S.17 (1) (d) thus makes registration compulsory to those leases which are covered by paragraph (1) of S.107 of the Transfer of Property Act. Leases which are reduced into writing and are otherwise not covered either by Clause (d) of sub-section (1) of S.17 of the Registration Act or by Paragraph (1) of S.107 of the Transfer of Property Act, come within the purview of the second paragraph of S.107 read with S.4 of the Transfer of Property Act. Apart from various other sections mentioned therein, would be read as supplemental to the Indian Registration Act. Consequently, reading the two provisions together, it is clear that a lease for a period less than a year made in writing must be registered u/s. 107 of the Transfer of Property Act, though it is not compulsorily registrable u/s.17 (1) (d) of the Registration Act (Rama Sahu Vs. Gowro, (1921) ILR 44 Mad 55:(AIR 1921 Mad 337) (FB).(emphasis added)"

The Larger Bench further in paragraph 12 and 18 laid down:-

"12. In our opinion, therefore, an unregistered document cannot be admitted for providing either the duration or the rate of rent which is one of the terms of the contract. Accordingly, we agree with the view taken in Arshad Ali v. State of U.P. (AIR 1978 All 59) (supra), Sallo Mal v. Smt. Nayanabai (AIR 1979 All 32) (supra), Ratan Lal v. Hari Shanker (AIR 1980 All 180), Ram Swarup Jain v. Janki Devi Bhagat (AIR 1974 All 424) (supra), and Jai Narain Dass v. Smt. Zubaida Khatoon (AIR 1972 All 494) (supra).

18. For what we have said above, it follows that an unregistered lease deed cannot be admitted to prove the terms and conditions of the lease. Accordingly, it cannot be seen either for the purposes of the period of lease or the rate of rent at which the premises had been let out. A collateral purpose is any purpose other than of creating, assigning, extinguishing a right to immovable property. (emphasis added)"

14. So far as the judgment in Anthony (Supra) relied upon by the counsel for revisionist is concerned, the same is with regard to effect of non-registration of a document required to be specifically registered. In paragraph-8 itself, the Court has specifically stated "It is an unregistered instrument. Hence such an instrument cannot create a lease on account of three-pronged statutory inhibitions." In view thereof, the said judgment in no manner can help the case of the revisionist.

15. Thus, the submission of learned counsel for revisionist, that once there is a lease in writing, the oral agreement will not come into force, is incorrect. A lease in writing can only be read, whether it is for more than one year or less than one year, only when it is registered, as required under Section 107 of the Transfer of Property Act, except for collateral purposes. Since in the present case the lease deed is not registered, in view of Section 49 of the Registration Act, the same cannot be looked into for the purpose of creating rights between the parties. Thus, the lease and its terms are to determinable, on the pleadings and evidence led by the parties, ignoring the said writing. Thus, submission of revisionist is again not acceptable. It is important to state that no attempt is made by the revisionist to refer to any oral or other evidence to argue with regard to validity of judgment or correctness of findings given by the Court below on this issue.

16. Next submission of counsel for revisionist is, that, as per the terms of the lease deed, it is the Court at Assam which will have jurisdiction to entertain the case and case is wrongly filed before the Court of Additional District Judge, Unnao. Since it is already held above that since the lease deed is not registered, it and cannot be looked in to and, thus, submission of counsel for revisionist is not sustainable.

17. Next submission of learned counsel for revisionist is that the notice was given on 07.06.1968 and thereafter possession was take by the landlord on 16.07.1968. Therefore, as per principle of waiver, the notice stood waived and since no fresh notice was given, the suit was not maintainable. It is admitted between the parties that the revisionist approached the Administrative Authorities (District Magistrate) claiming that landlord, by playing fraud in collusion with his manager, had illegally taken the possession of the property. The Administrative Authorities in the said circumstances got the possession returned immediately. In the given facts, principles of waiver cannot apply. The possession admittedly, between the parties, was not taken under the notice dated 07.06.1968, therefore, there is no defect in filing of suit on the basis of the said notice dated 07.06.1968.

18. In view of aforesaid, I find no force in the present civil revision.

19. The matter could be closed at this stage but one aspect of the matter still remains, disturbing the conscience of the Court. The picture hall was taken on rent in the year 1965, a notice for terminating its tenancy was given in the year 1968 and the suit was filed in the year 1971. The suit was decreed in the year 1985. The matter is still subjudice, after around 50 years, since the notice was given. The Court while decreeing the suit granted mesne profits, as was claimed at the time of filing of the suit, at Rs.1150/- per month. Is it just and appropriate mesne profit fixed by the Court, looking into the fact that the market value has hugely changed meanwhile? Would this Court be having jurisdiction, under law and in justice, equity and good conscience to correct the same?

20. Section 37 of the Bengal, Agra & Assam Civil Courts Act, 1887 provides:-

"37.Certain decisions to be according to Native law.(1) Where in any suit or other proceeding it is necessary for a Civil Court to decide any question regarding succession, inheritance, marriage or caste, or any religious usage or institution, the Muhammadan law in cases where the parties are Muhammadans, and the Hindu law in cases where the parties are Hindus, shall form the rule of decision except in so far as such law has, by legislative enactment, been altered or abolished.

(2) In cases not provided for by sub- section (1) or by any other law for the time being in force, the Court shall act according to justice, equity and good conscience."

The duty imposed upon this Court under Article 226 of the Constitution of India to pass order in accordance with law, equity and justice is also a duty imposed upon all the civil courts. The civil courts are empowered to issue directions in accordance with law and also taking into consideration the justice, equity and good conscience. So far as the issue of fixing the mesne profit is concerned, the following two judgments of the Supreme Court settles the law. First is the case of M/S. Marshall Sons & Co.(I) Ltd. Vs. M/S. Sahi Oretrans (P) Ltd. And Anr., reported in (1999) 2 SCC 325. Relevant portion from paragraph 4 of the said judgment reads as:-

"4. ................... It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property................." (emphasis added)

Second is the Case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.; reported in (2005) 1 SCC 705. Relevant paragraphs of the said judgment reads as:-

"13. In Shyam Sharan Vs. Sheoji Bhai & Anr., (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord. With advantage and approval, we may refer to a decision of the Nagpur High Court. In Bhagwandas Vs. Mst. Kokabai, AIR 1953 Nagpur 186, the learned Chief Justice of Nagpur High Court held that the rent control order, governing the relationship of landlord and tenant, has no relevance for determining the question of what should be the measure of damages which a successful landlord should get from the tenant for being kept out of the possession and enjoyment of the property. After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the rent control order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value. We find ourselves in agreement with the view taken by the Nagpur High Court.

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 landlod 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 added)"

21. Looking into the above judgments and also facts of the present case, where the property which was given on tenancy was a commercial property being a picture hall, it would be appropriate to fix mesne profit at the rate of Rs.25,000/- per month from the date of the decree passed by the Court below, i.e., 31.08.1985, till 31.12.2000 and at the rate of Rs.50,000/- per month from 01.01.2001 till handing over the possession of the property to the landlord. Revisionist is granted two months time from today to vacate the property and handover the vacant possession of the same to the respondent. In case of failure to do so, after the aforesaid period of two months, the mesne profit shall be at the rate of Rs.5,000/- per day.

22. With the aforesaid, the present civil revision is disposed of.

Order Date :-22.05.2018

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