Jayant vs Mohanlal
2023 Latest Caselaw 9851 MP

1




          IN THE HIGH COURT OF MADHYA PRADESH
                        AT INDORE
                          FA No. 268 of 2022
               (JAYANT AND ANOTHER Vs MOHANLAL AND ANOTHER)




INDORE dt. 03-02-2023


         Shri Ramesh Sonvane - Advocate for the appellants.

         Shri Vijay Kumar Asudani - Advocate for the

respondent No.1.

They are heard on IA No. 1161 of 2022 which is an application

under Order 41 Rule 5 of the CPC.

Reserved for orders.

(PRANAY VERMA)

JUDGE rashmi

IN THE HIGH COURT OF MADHYA PRADESH AT INDORE FA No. 268 of 2022 (JAYANT AND ANOTHER Vs MOHANLAL AND ANOTHER)

INDORE dt. -06-2023

Shri Ramesh Sonvane - Advocate for the appellants.

Shri Vijay Kumar Asudani - Advocate for the

respondent No.1

This appeal under Section 96 of the CPC has been preferred by

the tenants/defendants 1(a) and 1(b)/appellants against the judgment

and decree dated 22.12.2021 passed in Civil Suit No. 47-A/2021 by

the IInd District Judge, Ujjain whereby the claim of

plaintiff/respondent No.1 has been decreed on various grounds

enumerated under Section 12(1) of the M.P. Accommodation Control

Act, 1961 and they have been directed to handover vacant possession

of the suit premises as well as the encroached part to plaintiff and to

pay mesne profits @ Rs.38 per month till date of delivery of

possession.

2. Along with the appeal the appellants have also filed an

application under Order 41 Rule 5 of the CPC bearing IA No. 1161 of

2022 for stay of execution of the impugned judgment and decree

submitting that the same is erroneous, that they have been in settled

possession of the suit premises for decades, that there is no

relationship of landlord and tenant between the parties and that they

have possessory title over the suit premises.

3. Reply has been filed by the plaintiff/respondent No.1 to the

application in which it has been submitted that the appellants are

tenants in the suit premises situated at House No. 8/5/1 up to 8/5/4

Vikram Marg. The entire Freeganj area which includes Vikram Marg

is commercial area having great valuation. The plaintiff had let-out the

suit premises admeasuring 851sq.ft.to the defendants at a nominal rent

of Rs. 38/- per month. The defendants have illegally encroached upon

1000 sq ft. more of the adjoining property. The total property in their

possession is hence 1851 sq.ft. The market rate of rent of the suit

premises is not less than 2,25,822/- per month @ Rs.122 per sq.ft.

The value of real estate has increased immensely since the suit

property was initially given to defendants on rent. Two premises

admeasuring 642 sq. ft and 360 sq.ft. situated in the same locality and

vicinity have recently been given on lease for Rs 60,000/- per month

and Rs. 44,000/- per month, respectively i.e. at Rs.94/- and Rs.122/-

per sq. ft. Since eviction decree has been passed against the

defendants, plaintiff cannot be deprived from enjoying the fruits of the

same and defendants should pay the rent at the market rate. Reliance

has been placed on the decision of the Hon'ble Supreme Court in

Atma Ram Properties Vs. Federal Motors Private Ltd., (2005) 1

SCC 705 and Mohammad Ahmad and another Vs. Atma Ram

Chouhan and others, (2011) 7 SCC 755.

4. Rejoinder has been filed by the appellants to reply of

respondent No.1 submitting that the claim of plaintiff was not based

only on the provisions of Section 12 (1) of the Act, 1961, but

possession had also been sought for on the basis of title. Plaintiff has

never inducted the defendants as tenants in the suit premises. He is

not the true and legal owner of the same. The averment that suit

premises are situated in commercial area in the city having great value

is incorrect and false. No encroachment has been made by the

defendants nor has the trial Court found so. The market rate of rent of

the suit premises is not Rs.2,25,822/- per month. The calculation

made by plaintiff is incorrect and not recognized in any provision of

law especially for determination of rent under the Act, 1961. A

landlord is only entitled to standard rent to be fixed by the Rent

Controlling Authority appointed there under and even lawful increase

in the existing rent can be only considered by the same authority. The

documents produced by plaintiff are false and incorrect and have been

falsely prepared. Even otherwise newly built commercial property

cannot be compared with the suit premises which even according to

the plaint description are 75 years old built for residential use hence

the properties being sought to be compared with it are not relevant.

The suit premises are quite dilapidated as evident from the

photographs filed along with the rejoinder. The suit premises are not

in commercial place. Only small portion of the building is being used

for non-residential use and its major portion is for residential usage.

Even in the vicinity non-residential premises do not fetch higher rent

as evident from the rent receipts of tenanted premises in the vicinity

and the Rent Agreement dated 01.08.2022 in which premises

measuring 750 sq. ft have been let out at Rs.9750/- per month. It is

hence submitted that the contention of respondent No.1 as regards

fixation of rent during pendency of the appeal be rejected and the

decree be stayed.

5. I have heard the learned counsel for the parties and have

perused the record.

6. From the record of the trial Court it is seen that the suit

premises and the entire building earlier belonged to The Vinod Mill.

By a registered sale deed dated 22.06.1981 (Exhibit-P-5) the same

was sold in favour of M/s. Airen Cotton & Oil Mills Ltd which in turn

sold the same in two parts to Kamal Kumar Bafna by two registered

sale deeds dated 17.04.1989 and 24.09.1989. Kamal Kumar Bafna by

two different registered sale deeds dated 29.10.2001 (Exhibit-P-1 and

P-2) sold the same in favour of the plaintiff Mohanlal. Thus, plaintiff

has acquired valid title to the suit premises. The defendants have not

claimed any independent title to the suit premises. They have only

claimed title by virtue of adverse possession which has been

specifically negatived by the trial Court upon a detailed discussion of

evidence on record.

7. The defendants have contended that plaintiff does not have

title to the suit premises. Jyoti Swaroop Sharma, father of original

defendant No.1 Nalin Sharma was a resident in the suit premises as a

tenant and in 1972 Nalin Sharma on behalf of his mother started

paying rent to The Vinod Mills Co. Ltd. The capacity of defendant

No.1 as a tenant in the suit property is hence very well established.

He had paid rent to Kamal Kumar Bafna and thus relationship of

landlord and tenant was established. The plaintiff is a purchaser from

Kumal Kumar Bafna and is thus landlord of the suit premises and

defendants are his tenants. Having admitted tenancy of plaintiff's

predecessor it is not open for the defendants to set up their own title

or to dispute title of plaintiff.

8. The record also indicates that the suit premises along with

the other adjoining premises were purchased by Mohanlal, the

plaintiff, and there were various tenants therein. The other tenants had

instituted civil suits against the present plaintiff for declaration of their

title in which present plaintiff had filed counter claim for eviction. The

matter was ultimately taken to the Hon'ble Supreme Court and it was

eventually held that present plaintiff has acquired title to the property

under his sale deeds. Those sale deeds also include the present suit

premises. The dispute as regards title raised by defendants in the

present suit is hence immaterial since the matter at the instance of

adjoining tenants has already been decided by the Hon'ble Supreme

Court. Thus, the contentions of the defendants that there is a dispute

as regards title to the suit property hence rent to be paid by the

appellants during pendency of this appeal cannot be fixed as it is not a

landlord tenant dispute is not liable to be accepted.

9. Though, plaintiff had also sought possession of the suit

premises on the basis of his title also but that is immaterial as it is

always permissible for the plaintiff to claim a particular relief on

different grounds. It has been well established before the trial Court

that relationship between plaintiff and defendants is that of landlord

and tenant hence merely because suit was instituted for possession on

the basis of title also it would not make any difference.

10. So far as the contention of learned counsel for the

appellants that this Court has no power to fix any rent higher than the

rent agreed between the parties during pendency of this appeal which

power vests and already been settled by the Hon'ble Supreme Court

in the matter of Atma Ram Properties Private Ltd. (supra), which

has since then been consistently followed in a series of decisions. It

was held in paragraph No.8, 9, 16, 18 and 19 as under :-

" 8. It is well settled that mere preferring of an appeal does not operate as stay on

the decree or order appealed against nor on the proceedings in the court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the appellate court and the appellate court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in Rule 5 aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate court would be inclined to pass an order of stay. Experience shows that the principal consideration which prevails with the appellate court is that in spite of the appeal having been entertained for hearing by the appellate court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed. This consideration is pitted and weighed against the other paramount consideration: why should a party having succeeded from the court below be deprived of the fruits of the decree or order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior forum. Still the question which the court dealing with a prayer for the grant of stay asks itself is: why the status quo prevailing on the date of the decree and/or the date of making of the application for stay be not allowed to continue by granting stay, and not the question why the stay should be granted.

9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be "substantial loss" to the party applying for stay of execution within the meaning of clause (a) of sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate court which is equitable in nature. To secure an order of stay merely

by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields Ltd. v. State of M.P. [(2003) 8 SCC 648] this Court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery to it of benefit earned by the opposite party under the interim order of the High Court, or

(b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the court. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus, for example, though a decree for payment of money is not ordinarily stayed by the appellate court, yet, if it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record -- all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corpn. [(1985) 3 SCC 545] : (SCC p. 574, para 35)

"Common sense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants."

16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower forum. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy.

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 for 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 & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. [(1999) 2 SCC 325] 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.

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 insofar 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."

11. Along with the reply plaintiff has filed registered rent

agreements executed with respect to nearby similarly placed shops i.e.

shops situated on ground floor at Shankumarg, Madav Nagar,

Freeganj, Ujjain. Along with the rejoinder the appellants have also

filed an agreement, though un-registered, in respect of a nearby

building. The same is however in favour of a social welfare society. It

appears that the same is in respect of professional usage given to the

social welfare society and is not in respect of a shop whereas the suit

premises are a shop. The premises relied upon by the appellants are

thus quite different from the premises relied upon by plaintiff which

are exactly same as the suit shop. It is thus the rent agreements filed

by plaintiff which have to be taken into consideration.

12. The rent agreement filed by plaintiff demonstrate that

similar shops situated in the nearby area have been given on rent

recently in the year 2021 at Rs.94/- and Rs.122/- per sq. ft. The Rent

Agreements are registered agreements hence there is no reason to

doubt the same at the present stage.

13. Though it has been contended on behalf of the appellants

that the building in which the suit premises are situated are in a very

dilapidated stage and photographs in that regard have also been filed

along with the rejoinder, but it is to be noted that the dispute is only in

respect of the suit premises and is not in respect of the entire building

which may be dilapidated. Merely for the building being dilapidated it

cannot be presumed that the suit premises are also in such a condition.

On the contrary, the photographs filed by the appellants themselves

clearly show that the suit premises are in a fit and good condition and

for the remaining building being dilapidated no effect has been caused

upon them.

14. However, considering the fact that the entire remaining

portion of the building in which the suit premises are situated is

dilapidated, it would not be just to assume that the suit premises

would also fetch rent equal to the rent on which nearby shops have

been given out on rent recently. The rent which may be fetched by the

suit premises would not be the same as those shops. Considering the

fact of the building being dilapidated and the overall facts and

circumstances of the case, in my opinion, the suit premises would be

able to fetch rent @ Rs. 60 per sq. ft. i.e Rs.51,000/- per month the

same being 851 sq. ft.

15. Thus, in view of the aforesaid discussion the application

bearing IA No. 1161 of 2022 under Order 41 Rule 5 of the CPC filed

by the appellants is disposed off in the following terms :-

a). The appellants/tenants shall pay a sum of Rs.51,000/- per

month by way of rent to the respondent No.1 before the 15th day of

next succeeding month.

b). The said amount of monthly rent shall be payable by the

appellants with effect from the date of judgment and decree passed by

the trial Court.

c). The appellants shall deposit the entire arrears of the

aforesaid monthly rent as fixed within a period of three months from

today.

d). In case the appellants comply with the aforesaid conditions,

the execution of the decree passed by the trial Court shall remain

stayed during pendency of this appeal.

e). In case of any failure on part of the appellants to comply

with the aforesaid conditions, the stay of execution of the decree of

the trial Court shall become inoperative automatically.

16. It is, however, made clear that all the observations as made

in this order are only for the purpose of determination of the interim

application and shall have no binding effect on the merits of the case

at the time of its final adjudication.

List the appeal for hearing in due course.

Certified copy as per rules.

(PRANAY VERMA) JUDGE

rashmi

RASHMI PRASHANT 2023.06.30 18:08:35 +05'30'