Delhi High Court
Hardeep Singh Safri vs Sardar Gurdyal Singh on 22 May, 2025
Author: Navin Chawla
Bench: Navin Chawla
$~7&8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 22.05.2025
(7) + FAO(OS) 110/2024, CM APPL. 45328/2024, CM APPL.
45329/2024
HARDEEP SINGH SAFRI .....Appellant
Through: Mr. Kundan Kr. Mishra & Mr.
Ratnesh Kumar, Advs.
versus
SARDAR GURDYAL SINGH .....Respondent
Through: Mr. Tarang Gupta, Mr.
Kartikeya Sharma, Advs.
(8) + FAO(OS) 111/2024, CM APPL. 45368/2024, CM APPL.
45369/2024
HARDEEP SINGH SAFRI .....Appellant
Through: Mr. Kundan Kr. Mishra & Mr.
Ratnesh Kumar, Advs.
versus
MANAV BAJAJ .....Respondent
Through: Mr. Tarang Gupta, Mr.
Kartikeya Sharma, Advs.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
HON'BLE MS. JUSTICE RENU BHATNAGAR
NAVIN CHAWLA, J. (Oral)
1. These appeals have been filed challenging the Order dated
08.05.2024 passed by the learned Single Judge of this Court in I.A.
No.17325/2023 in CS(OS) No. 223/2021 and I.A. No. 15840/2021 in
CS(OS) No. 643/2021, whereby the applications filed by the appellant
under Order XVA of the Civil Procedure Code, 1908 (in short, 'CPC')
were disposed of with the direction to await the outcome of the appeal
filed by the respondents being RFA No.409/2010.
2. To give a brief background of the facts in which the present
appeals arise, the appellant has filed the above Suits against the
respondents, seeking possession, damages, mandatory, and permanent
injunction with respect to the portions of property bearing No. 76,
M.M. Road, Motia Khan, Dump Scheme, Jhandewalan, New Delhi-
110055.
3. The plaintiff in the said Suits has claimed that the respondents
had filed a Suit, being CS(OS) No.281/2004, titled as Shri Manav
Bajaj & Ors. vs. Sardar Mehal Singh & Ors., wherein, by a
Judgment dated 02.01.2010 passed by learned Additional District
Judge, Tis Hazari Court, Delhi, the respondents have been held to be
illegal occupants of the above Suit premises. The appellant claimed
that though the respondents have filed an appeal challenging the said
Judgment, being RFA No.409/2010, there is no interim Order passed
in the said appeal in favour of the respondents.
4. In the above Suits, the appellant filed the above the applications
under Order XVA of the CPC, praying for the direction to the
respondents to pay/deposit, during the pendency of the Suits, such
amount as may be directed by the Court, as use and occupation
charges.
5. As noted hereinabove, the learned Single Judge, however, was
of the opinion that as the appeal is pending adjudication, it would be
advisable to dispose of the abovementioned applications, and to await
the decision of the court in RFA No. 409/2010. We may quote from
the Order as under:
"19. In the present case, admittedly, the question of the
issue as to the status of the defendant in the suit property
is pending for consideration before this court in RFA
409/2010. The learned Additional District Judge in CS
281/2004 has held the defendant to be the illegal
occupant. However, the first appeal which is a matter of
right is pending for consideration before this court.
20. I consider that till the issue is decided by this court in
RFA 409/2010, any order in the present application may
prejudice either of the parties. The documents as raised by
the defendant claiming its tenancy are pending scrutiny
before the first Appellate Court. The evidence in the
present case is also yet to be recorded. Therefore, in the
interest of justice, the present applications are disposed of
with a direction to await the decision of the Court in RFA
No.409/2010. However, the plaintiff shall be at liberty to
take appropriate legal steps in RFA No. 409/2010."
6. The learned counsel for the appellant submits that mere
pendency of the appeal, does not amount to a stay on the findings or
on the operation of the judgment impugned therein. He submits that
the respondents having been declared as illegal occupants of the suit
property, have to be directed to deposit the use and occupation charges
during the pendency of the Suits filed by the appellant.
7. On the other hand, the learned counsel for the respondents
submits that the Suit itself are completely vague and do not establish
any right of the appellant in the Suit Property. He submits that mere
passing of the decree against the respondents would not justify passing
of an Order under Order XVA of the CPC. He raises various other
objections as well on the merits of the application.
8. We have considered the submissions made by the learned
counsels for the parties.
9. At the outset, we would note that as the Impugned Order does
not consider the merits of the rival claims of the parties. We would,
therefore, also refrain ourselves from dealing with the same.
10. The only question that is to be determined by us is whether the
learned Single Judge has erred in disposing of the applications filed by
the appellant on the ground of mere pendency of the appeal filed by
the respondents.
11. As noted hereinabove, in the said appeal filed by the
respondents, there is no order of stay granted in favour of the
respondents. The judgment impugned therein, therefore, remains
operative till date. Order XLI Rule 5 of the CPC states that an appeal
shall not operate as a stay of proceedings under a decree or order
appealed from. We quote sub-rule (1) of Rule 5 of Order XLI of the
CPC as under:
"5. Stay by Appellate Court.--(I) An appeal shall not
operate as a stay of proceedings under a decree or order
appealed from except so far as the Appellate Court may
order, nor shall execution of a decree be stayed by reason
only of an appeal having been preferred from the decree;
but the Appellate Court may for sufficient cause order stay
of execution of such decree.
[Explanation.--An order by the Appellate Court for the
stay of execution of the decree shall be effective from the
date of the communication of such order to the Court of
first instance, but an affidavit sworn by the appellant,
based on his personal knowledge, stating that an order for
the stay of execution of the decree has been made by the
Appellate Court shall, pending the receipt from the
Appellate Court of the order for the stay of execution or
any order to the contrary, be acted upon by the Court of
first instance]."
12. The effect of the judgment of the learned Additional District
Judge on the applications filed by the appellant, therefore, has to be
considered by the learned Single Judge. The learned Single Judge, in
our opinion, has, therefore, erred in disposing of the abovementioned
applications merely on the ground of the pendency of the appeal.
13. Therefore, the impugned Order dated 08.05.2024 is set aside,
I.A. No.17325/2023 in CS (OS) No. 223/2021, and I.A. No.
15840/2021 in CS (OS) No. 643/2021, are restored back to their
original numbers. They shall be listed before the learned Single Judge
on 23rd July, 2025 for considering afresh. As the parties are appearing
before us, there shall be no necessity to issue a fresh Notice of these
applications to the parties.
14. In such consideration, of course, all objections of the
respondents would also remain open to be considered. Unless there is
any order passed to the contrary by the Court hearing the appeal, that
is, RFA No.409/2010, to the contrary, the learned Single Judge shall
decide on the applications remaining uninfluenced by the pendency of
the said appeal.
15. The appeals, along with pending applications, are disposed of in
the above terms.
NAVIN CHAWLA, J
RENU BHATNAGAR, J
MAY 22, 2025/pr/kz/VS
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