Rajasthan High Court - Jodhpur
Lrs Of Deceased Kasam Bhai vs Lrs Of Deceased Abdul Razak ... on 23 May, 2025
[2025:RJ-JD:25282]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 1384/2025
LRs Of Deceased Kasam Bhai, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
1. Mohammad Salim S/o Late Kasam Ji, Aged About 67
Years, R/o Sumerpur Tehsil Sumerpur District Pali
Rajasthan
----Appellants
Versus
1. LRs Of Deceased Abdul Razak, Resident Of Sumerpur
Tehsil Sumerpur District Pali Rajasthan
1/1. Yasin S/o Late Abdul Razak, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
1/2. Nazir Mohammad S/o Late Abdul Razak, R/o Sumerpur
Tehsil Sumerpur District Pali Rajasthan
1/3. Mohammad Momin S/o Late Abdul Razak, R/o
Sumerpur Tehsil Sumerpur District Pali Rajasthan
1/4. Amina D/o Abdul Razak, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
1/5. Sarifa D/o Late Abdul Razak, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
1/6. Bismillah D/o Late Abdul Razak, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
1/7. Madina D/o Late Abdul Razak, R/o Sumerpur Tehsil
Sumerpur District Pali Rajasthan
----Respondents
For Appellant(s) : Mr. Mudit Nagpal
For Respondent(s) :
HON'BLE MR. JUSTICE ARUN MONGA
Order (Oral)
23/05/2025
1. The appellant-plaintiff, by way of this writ petition, seeks
quashing of the impugned order dated 02.04.2025 passed in Civil
Misc. Case No. 26/2024, whereby the learned Trial Court allowed
the application filed by the respondents-defendants under Order
[2025:RJ-JD:25282] (2 of 6) [CMA-1384/2025]
41 Rule 5 CPC and granted an interim order, without assigning any
reasons.
2. Facts first. The appellant-plaintiff filed a civil suit for eviction
and recovery of rent, alleging that a shop owned by him was let
out to Abdul Razak on 01.08.1965 at a monthly rent of Rs.11. It
was claimed that rent was paid only up to 31.12.1973, and
thereafter, neither rent was paid nor was possession returned. The
plaintiff also pleaded bonafide requirement of the shop for his
sons' business and claimed mesne profits at Rs.150 per month.
2.1. The defendants denied the allegations, asserting that the
plaintiff had demanded lump-sum rent and that he already owned
21 shops, thereby negating any bonafide necessity. They also
claimed to be running a dyeing business in the suit shop.
2.2. The trial court dismissed the suit on 16.05.1981. The matter
thereafter underwent multiple rounds of remand and re-trial
during appellate proceedings. Eventually, the suit was decreed on
31.08.1994. However, in appeal, the appellate court set aside the
decree on 18.11.1998 and remanded the case with permission to
the defendants to file an amended written statement.
2.3. Following prolonged pendency and further proceedings,
including amendment of pleadings, framing of additional issues,
and fresh recording of evidence, the suit was once again decreed
on 15.10.2024. The trial court directed the defendants to pay the
due rent and vacate the shop within two months.
2.4. Aggrieved, the defendants filed a first appeal along with an
application under Order 41 Rule 5 CPC seeking stay of execution.
The appellant appeared on receipt of summons. The appellate
[2025:RJ-JD:25282] (3 of 6) [CMA-1384/2025]
court, vide order dated 02.04.2025, allowed the stay application
without assigning any reasons. Hence, the present appeal.
3. Learned counsel for the appellant submits that the learned
Appellate Court has gravely erred in law in allowing the application
under Order 41 Rule 5 CPC. He submits that the only reason cited
was that the respondent-defendant is presently in possession of
the suit property, and therefore, the execution of the judgment
and decree should be stayed. However, the appellate court has not
assigned any cogent reason or legal basis for granting such relief.
The order is completely silent on the reasoning, making it a non-
speaking order, which deserves to be quashed and set aside in
toto.
3.1. Learned counsel further contends that while deciding an
application under Order 41 Rule 5 CPC, the appellate court is
required to examine whether a prima facie case exists, whether
the balance of convenience lies in favour of the applicant, and
whether irreparable loss would be caused. However, the impugned
order does not reflect any such consideration. He submits that the
suit for eviction and recovery of rent was decreed in favour of the
appellant, yet the respondent, despite not paying any rent,
continues to occupy the shop solely on the strength of the stay
order. This, he contends, causes continued prejudice to the
appellant.
3.2. It is further urged that on the date of passing the impugned
order, counsel for the appellant requested that the matter be
heard finally on merits. However, the appellate court chose instead
to grant interim relief in favour of the respondent, again without
assigning any reason. The learned counsel submits that such
[2025:RJ-JD:25282] (4 of 6) [CMA-1384/2025]
action on part of the appellate court is legally unsustainable and
arbitrary.
3.3. Learned counsel also contends that the appellate court has
erred in law by granting an unconditional stay of execution of an
eviction decree. He relies on the judgment of the Supreme Court
in Atma Ram Properties (P) Ltd. vs. Federal Motors, wherein it was
held that no blanket stay can be granted in eviction matters
without imposing just and reasonable conditions. In the present
case, no such conditions have been imposed, and the impugned
order does not disclose any reasoning. Hence, the impugned order
is liable to be set aside on this ground alone.
4. I am unable to persuade myself with the arguments of
learned counsel for the appellant that the learned appellate court
below in season of the matter during pendency of the appeal has
not given sufficient reasons to stay the execution of the decree,
which has been passed by the learned trial court in favour of the
appellant.
5. For ease of reference translated version (as provided) of the
impugned interim order passed by the learned first appellate court
is as below :-
"The arguments on the application have been heard. The
case file has been perused, and the relevant legal provisions have
been reviewed.
The applicants have submitted an application under Order 41
Rule 5 read with Section 151 of the Code of Civil Procedure (CPC),
requesting that since an appeal has been filed before this court
against the judgment and decree passed by the Senior Civil Judge,
Sumerpur, in Civil Original Suit No. 10/2017, CIS No. 12/2016, and
the hearing and disposal of the appeal will take time, the execution
proceedings based on the impugned judgment and decree, which
directs the appellants to vacate the disputed shop within two months
should be stayed.
It is submitted that if the execution proceedings are allowed
to continue during the pendency of the appeal and the appellants
[2025:RJ-JD:25282] (5 of 6) [CMA-1384/2025]
are dispossessed or evicted, the very purpose of the appeal would be
defeated. Presently, the appellants are in possession of the disputed
property and are running their business there. If evicted, they will
suffer inconvenience and irreparable loss, and will be deprived of
their livelihood. Therefore, it is requested that the execution of the
judgment and decree dated 15.10.2024 be stayed until the final
decision of the appeal.
On the other hand, the respondent has argued that the trial
court has rightly passed the decree, which directs the appellants to
vacate the shop within two months. The order is lawful, and the
respondent, being the rightful owner of the property, is being
deprived of its use and enjoyment. The appeal, according to the
respondent, lacks merit and does not justify the relief sought. The
respondent has requested that the present application under Order
41 Rule 5 CPC be dismissed and special costs be awarded.
Heard. The record has been perused.
It is correct that the appellants have filed an appeal against
the judgment and decree dated 15.10.2024, and the original record
has been called from the trial court. Both parties have sought time
for the hearing of the appeal. At present, the appellants are in
possession of the disputed property. At this stage, it is not
appropriate to comment on the merits of the case. Considering the
present facts and circumstances, it is just and proper to stay the
execution of the judgment and decree until the final disposal of the
main appeal.
Accordingly, the application filed by the appellants under
Order 41 Rule 5 read with Section 151 CPC is allowed. The
execution of the impugned judgment and decree dated 15.10.2024 is
hereby stayed until the disposal of the main appeal. No further
proceedings remain in this file.
The file shall be marked as decided and attached to the main
appeal file."
6. Perusal of the impugned order, which is self speaking makes
it amply clear that having applied his mind on the grounds of
appeal and after hearing both the parties the learned appellate
court rightly observed that since it could not form a final opinion
'this way' or 'that way' at the interim stage of deciding the
application, therefore, the first appellant (tenant), who is
concededly in possession of the property ought not to be evicted.
His eviction at this interim stage would naturally render the appeal
infructuous qua his rights as in the meanwhile landlord shall be at
liberty to induct any other tenant or change the nature of
property.
[2025:RJ-JD:25282] (6 of 6) [CMA-1384/2025]
7. As already opined herein-above, I am in agreement with the
aforesaid view taken by the learned first appellate court and
sufficient reasons have been provided within the meaning of Order
41 Rule 5 CPC, no grounds to interfere.
8. Dismissed.
9. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
22-DhananjayS/Rmathur/-
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