Indian Oil Corporation Limited vs Rajkumar
2023 Latest Caselaw 13151 MP

                                                                      1
                                        IN THE HIGH COURT OF MADHYA PRADESH
                                                      AT INDORE
                                                              SA No. 1841 of 2021
                                          (INDIAN OIL CORPORATION LIMITED AND OTHERS Vs RAJKUMAR)

                           Dated : 14-08-2023
                                  Shri Yogesh Kumar Mittal, learned counsel for the appellants.

                                  Shri Ajay Jain, learned counsel for the respondent.

Heard on I.A.No.8214/2021 an application under Order XLI Rule 5 of CPC read with Section 151 of CPC.

2. The appellants filed this application with the second appeal and

submitted that the underground tanks, dispenser machines and all other entire accessories of the retail outlet petrol pump still existed on the suit land and thus the possession of the land is still in the occupation of the appellants/Corporation. The appellants/Corporation would suffer grave and irreparable loss in the event if the respondent files the execution proceeding on the basis of the impugned judgment and decree dated 09.09.2021 and succeeds in getting the possession through proceeding. Hence, it is prayed that this application be allowed and operation and effect of the judgment and decree dated 09.09.2021 passed by the first appellate Court be ordered to be stayed

during the pendency of the present appeal. It is further submitted that the appellants/Corporation undertake to comply with the conditions for grant of stay in their favour.

3. Respondent filed reply and opposes the application and submitted that the appeal is based on legal grounds and involves several questions of law. It is further submitted that relationship of landlord and tenant between the plaintiff and respondent are not in dispute and both the Courts after appreciating the entire evidence has rightly found that it could not be proved Signature Not Verified Signed by: REENA JOSEPH Signing time: 16-08-2023 18:54:56

that appellants have paid rent from the period of 01.01.2009 to 21.11.2013 which amounts to violation of the lease deed Ex.P-1. It is further submitted that after taking over the possession of the disputed land respondent has already started running his business activity from which he is earning monthly income of Rs.2 lacs per month and as a matter of fact it will cause more irreparable loss to him as he is earning his livelihood hence, prays for rejection of the application.

4. After hearing both the parties, this Court while admitting the second appeal framed substantial questions of law on 30.06.2023. The suit premises is a non-residential premises which was let out to the appellants by way of lease deed Ex.P-1. The Courts below after appreciating the oral and documentary

evidence came to the conclusion that appellants violated the agreement and passed the judgment and decree against the appellants and directed to withdraw all the machineries from the disputed land within two months. Being aggrieved by the judgment and decree the appellants filed this second appeal. Now the appellants seek stay of the execution of the judgment and decree.

5. Learned counsel for the respondent submitted that during the pendency of the appeal, appellants are liable to pay the reasonable amount of mesne profit which may be equivalent to the market value from the date of passing of the decree till the disposal of this appeal. He also submitted that the appellants have not deposited the lease rent.

6. The Hon'ble Apex Court in the case of M/S. Atma Ram Properties (P) Ltd vs M/S. Federal Motors Pvt. Ltd reported in (2005) 1 SCC 705 held that the right of the tenant to file an appeal is statutory but his prayer for grant of stay is applicable in exercise of equitable discretionary jurisdiction of the appellate Court. While ordering stay the appellate Court has

Signature Not Verified Signed by: REENA JOSEPH Signing time: 16-08-2023 18:54:56

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. There is every justification for the appellate Court to put the tenant-appellants on terms and direct the appellants to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent which had been paid by the tenant during the trial Court proceedings.

7. Perusing the above judgment, subject to the appellants' depositing the lease rent over dues within one month from the date of passing of this order and also on deposit Rs.10,00,000/- within a period of three months from today before the trial Court, the effect and operation of the judgment and decree dated 09.09.2021 shall remain stayed, failing which the stay granted by this Court shall stand vacated automatically without further reference to the Bench.

8. The learned trial Court is directed to deposit the amount in a nationalised bank with higher interest rate. The amount so deposited by the appellants alongwith accrued interest shall be disbursed after the disposal of the civil suit, subject to the result of the appeal.

I.A.No.8214/2021 stands disposed off.

List for final hearing in due course.

(HIRDESH) JUDGE

RJ

Signature Not Verified Signed by: REENA JOSEPH Signing time: 16-08-2023 18:54:56