Saturday 25 May 2024

Supreme Court: Application For Compensation by Landlord at belated stage Can't Be Entertained When Appeal Is Ready For Final Hearing

 In my opinion if Interim Application as per the ratio laid down by the judgment of Atma Ram Properties (supra) is preferred in a short span of time after the Appeal is admitted and stay is granted to the execution of eviction decree, the same can be decided by Appellate Court on its own merits, by putting the tenant on reasonable terms.

But certainly such an application preferred much later for fixing market rent/compensation, after the Appeal is ready for final hearing, would not be entertainable when both the parties were heard at the time of Admission of Appeal and the execution of judgment and decree of eviction was stayed.{Para 7}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO. 15729 OF 2023

IN

CIVIL REVISION APPLICATION 646 OF 2012

Brijbhushan Chandrabali Shukla Vs Shri. Mahendra Yadav, S/o

Lavjari S. Yadav 

CORAM : RAJESH S. PATIL, J.

DATED : 12 JANUARY 2024.


1. This Interim Application has been filed by

Respondent/Landlord seeking a relief of monthly compensation

payable @ Rs.70,000/- from passing of the Trial Court decree, by the

Tenant, as per the ratio laid down by Supreme Court in Atma Ram

Properties V/s. Federal Motors reported in (2005) 1 SCC 705.

Legal Frame Work :

2. It is necessary first to examine the ratio laid down by the

Supreme Court in the judgment of Atma Ram Properties (Supra).

2.1. In the said judgment Supreme Court held that while

passing an order of stay to eviction decree, the Appellate Court does

have jurisdiction to put the applicant on such reasonable terms as

would be reasonable to compensate the decree holder for loss

occasioned by delay in execution of decree by grant of stay order. In

the said proceedings, eviction was sought on the ground of

subletting. The decree of eviction was passed. In an Appeal preferred

under Section 38 of the Delhi Rent Control Act, 1958, the Rent

Control Tribunal directed the eviction to remain stayed but subject to

the condition that the respondent shall deposit in the Court

Rs.15,000/- p.m., in addition to the contractual rent which may be

directly paid to the Appellant. Paragraph No.19 of the said judgment

reads as under :-

“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 in so far 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.”

(Emphasis Supplied)

2.2. Hence, in the judgment of Atma Ram Properties (Supra)

Supreme Court, held that if a tenant suffers a decree of eviction,

Appellate Court while granting stay to eviction decree, can put the

tenant on reasonable terms, to compensate the decree holder for loss

suffered by delay in execution of decree due to stay granted. The

Court further held that after passing of eviction decree, in Appeal if

stay to eviction decree is sought, the tenant is liable to pay mesne

profit or compensation for occupation of premises from the date of

decree, at the same rate at which Landlord would have been able to

let out the premises and earn rent if tenant had vacated.

2.3. I would like to point out here that in Atma Ram

Properties (supra), the eviction decree was passed on 19 March

2001. In an Appeal preferred by tenant, the decree of eviction was

stayed on 12 April 2001, subject to condition that the tenant shall

deposit in the Court Rs.15,000/- p.m. in addition to contractual rent.

Hence, the condition to deposit the market rent was imposed in less

than one month from passing of eviction decree.

3. Correspondingly, in the matter of Sulochana Jadhav Vs.

Jogindersingh Amarsingh (Writ Petition No. 5658 of 2004), in Civil

Application No. 688 of 2009, this Court by its order dated 4 March

2010, rejected the Civil Application seeking direction against the

tenant to deposit the amount of compensation as per the market

value of the suit property, filed five years after admission of Writ

Petition. The said order dated 4 March 2010, reads as under :-

“The Applicant who is the Respondent in the Writ Petition

has filed this application. The Applicant is the landlord and

the Respondent in the application (Petitioner in Writ

Petition) is the tenant. Prayers in these applications are for

a direction against the Respondent/Tenant to deposit the

amount of compensation at the market value and for

appointment of a Court Receiver. Perusal of the record

shows that at the time of hearing as to admission of the

Writ Petition, the Applicant ( Respondent in the Writ

Petition ) was heard and interim relief was granted after

hearing the Advocate for the Applicant. Except for the fact

that the Writ Petitions are not heard for final disposal, no

change in the circumstances is brought on record. Granting

relief in these applications will amount to modification of

an order granting interim relief after hearing both the

parties. Hence, as of today, no case is made out for grant of

any relief. The Applications are rejected. If Writ Petitions

are ready for final hearing, the same shall be placed for

final hearing board of 5th April, 2010.”

4. Is is also necessary here to discuss the judgment of Super

Max International Pvt. Ltd. V/s. R. M. Choksey & Ors . reported in

(2009) 3 BCR 99. The facts in the said judgment where, that the Writ

Petition filed by tenant against eviction decree was “Admitted” on 22

February 2006, thereafter, the landlord on 2 July 2008 preferred

Civil Application on the basis of Supreme Court judgment of Atma

Ram Properties, praying that during the pendency of the Writ

Petition, the tenant be directed to pay interim monthly compensation

as per market rate. In Para No. 7 and 8 of the judgment it was held

that, keeping in mind that Writ Petition is not likely to reach for

hearing for quite some time, the landlord who has succeeded in

getting decree of eviction is entitled to claim suitable interim

compensation to meet the ends of justice. The fact that no

arrangement for imposing condition, now prayed by the landlord,

was canvassed on 22 February 2006 at the time of Admission, will

come in the way of the landlord to call upon the Court to impose

appropriate condition in terms of the legal position stated by

Supreme Court in Atma Ram Properties case was the argument on

behalf of Tenant. Indeed, the question whether the landlord would be

entitled for arrears of interim monthly compensation with

retrospective effect in a matter within the discretion of the Court. The

Court may confine the relief to the landlord from the date of the

filing of the present application. That would meet the ends of justice

and address the concern of the tenants as well to that extent.

4.1. I pause here to observe that, in R. M. Choksey (supra)

Writ Petition was admitted on 22 February 2006, after hearing both

sides. Civil Application seeking direction to pay interim compensation

as per ratio of Atma Ram Properties (supra) was filed on 2 July 2008.

Hence the application as per Atma Ram Properties (supra) was filed

within 18 months after admission of Writ Petition. The Single Judge

of this Court, fixed monthly compensation at the rate of Rs.33,333/-

payable from the date of filing of civil application by landlord.

Facts In Present Proceedings :

5. In this background, the fats in the present proceedings

are to be seen. The Civil Revision Application was admitted by order

dated 17 October 2012. Record shows that at the time of admission

Respondent was heard. Office remark shows that record and

proceedings have been received on 21 August 2013. The Civil

Revision Application is ready for final hearing.

6. The present Interim Application has been filed on 31 July

2023 claiming therein payment of market rent at the rate of

Rs.70,000/- per month by the Original Defendant from date of the

trial court decree dated 23 September 2009. The Interim Application

has been filed after 11 years, since Civil Revision Application, has

been admitted. No change in the circumstances is brought on record.

According to me in such a situation granting of any interim relief in

this Interim Application will amount to modification of the order

passed while Admitting the Civil Revision Application.


7. In my opinion if Interim Application as per the ratio laid

down by the judgment of Atma Ram Properties (supra) is preferred

in a short span of time after the Appeal is admitted and stay is

granted to the execution of eviction decree, the same can be decided

by Appellate Court on its own merits, by putting the tenant on

reasonable terms.

But certainly such an application preferred much later for

fixing market rent/compensation, after the Appeal is ready for final

hearing, would not be entertainable when both the parties were

heard at the time of Admission of Appeal and the execution of

judgment and decree of eviction was stayed.

8. In the present proceedings, considering the facts and

taking into account the law laid down by Supreme Court and by this

court in the above discussed judgments, I am of the view that there is

no merits in the Interim Application and the same must fail and is

dismissed.

9. Civil Revision Application be placed for final hearing on

12 February 2024 at 2.30 p.m.

10. The parties to file compilation of documents, short

synopsis along with their proposition of law and authorities relied

upon by them, within one week from today.

(RAJESH S. PATIL, J.)



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