Bharat Bijlee Ltd. vs P.S. Prasad And Family (Huf)
2008 Latest Caselaw 77 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Stay of operation of the impugned judgment and decree dated 11.1.2007 passed in RCA No. 22/2006 has been prayed for in the above captioned civil miscellaneous application.

2. A substantial question of law stands framed vide order dated 31.5.2007.

3. Since hearing of the appeal is likely to take time, arguments were heard in the afore-noted civil miscellaneous application.

4. Jural relationship between the parties of landlord-tenant is not in dispute. The dispute is whether the appellant is liable to be ejected from the suit premises as per the case set up in the plaint or is it entitled to defend its possession as per defense pleaded in the written statement.

5. To put it pithly, according to the appellant, under the agreement dated 20.9.1980 being not a lease agreement but an agreement to lease it was entitled to protect the possession under Section 53A of the Transfer of Property Act 1882. The stand of the landlord was to the contrary. The landlord succeeded. Two concurrent decisions are in favor of the landlord.

6. The decrees are not only for ejectment but even for money, in that, damages for continued use and occupation after the date, it has been held that possession of the appellant became unlawful, have also been awarded.

7. A perusal of the grounds urged in the second appeal reveal that the principal grievance of the appellant relates to the findings returned by the Courts below that Ex.PW-1/DZ4 was a lease agreement and not an agreement to lease and that since the lease was not renewed possession of the appellant became that of a tenant from month to month. Tenancy being determined, continued possession was unlawful. In the second appeal, aforesaid finding has been challenged.

8. Pertaining to the quantification of the mesne profits has not been questioned in the appeal. In other words, if the decision of the Courts below is upheld appellant would be liable to pay the monetary part of the decree.

9. To put it differently, in appeal, the monetary part of the decree would stand or fail depending upon the decision on the legal interpretation of the agreement Ex.PW-1/DZ4.

10. The property is at Bahadur Shah Zafar Marg. The fleet street of Delhi. It is in the heart of Delhi. It is a commercial premises. Ex.PW- 1/DZ4 was entered into between the parties way back on 20.9.1980.

11. With reference to the evidence led it has been held that comparable rent in the area increased to Rs. 19/- per sq.ft. per month as of January 1991 and in the year 2000 the same increased to Rs. 40/- per sq.ft. per month.

12. As per the decree passed by the learned Trial Court total damages payable are in sum of Rs. 41,07,880/-. Amounts paid by the appellant have to be deducted. The same are in sum of Rs. 18,80,254/-. In terms of the decree passed by the First Appellate Court a further sum of Rs. 1,22,696/- has to be deducted from out of the amount as awarded by the learned Trial Court. Appellant deposited with the First Appellate Court Rs. 9,34,142/-. A bank guarantee in sum of Rs. 9,34,142/- has been furnished. Rs. 2,36,646/- remains outstanding.

13. Ordinarily, unless it is shown that the decision under challenge is perverse, pertaining to money decrees, rule of law is not to stay the same.

14. I see no reason to stay the monetary part of the decree, more so when in the second appeal there is no challenge to the quantification of the mesne profits.

15. It was urged by learned counsel for the respondent that in view of the decision of the Hon'ble Supreme Court reported as Atma Ram Properties v. Federal Motors, considering a steep increase in rentals, during the pendency of the appeal appellants be directed to pay monthly mesne profits at a sum at least double of what has been determined by the Courts below. Learned counsel submitted that since as of the year 2000 monthly rent at market rate has been determined at Rs. 40/- per sq.ft., as of the year 2008 the said amount could reasonably be doubled.

16. In para 18 of the decision in Atma Ram Properties' case (supra) it was held as under:

18. That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order of eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons and Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.

17. Since I propose to expedite the disposal of the second appeal in my opinion ends of justice and equity would be met requiring appellant to pay to the respondent, monthly damages for continued use and occupation, during pendency of the appeal, payment being made by the 7th day of each calendar month @ Rs. 40/- per sq.ft. being the sum held payable by the learned First Appellate Court.

18. The application stands disposed of with the following directions:

(a) Respondent would be entitled to receive Rs. 9,34,142/- lying in deposit with the First Appellate Court. Within 4 weeks from today appellant shall pay to the respondents the balance sum payable as per the decree impugned.

(b) On payment of the balance sum payable under the decree, appellant would be entitled to receive back the bank guarantee furnished by it before the First Appellate Court.

(c) For the post decretal period the appellant shall pay to the respondent damages @ Rs. 40/- per sq.ft. per month till disposal of the appeal. The damages would be paid on or before the 7th day of each calendar month.

19. On directions aforesaid being complied with there shall be a stay of execution.

RSA No. 40/2007

1. ADMIT.

2. Hearing expedited.

3. To be listed in the category of 'Regular Hearing Matters' at serial No. 1 subject to overnight part-heard in the week commencing July 1, 2008.