- (1.) POONAM Srivastav, J. Heard learned counsel for the petitioner.
(2.) THIS writ petition has been filed at the instance of the tenants. S. C. C. Suit No. 13 of 1981, Km. Damyanti v. Roop Narain and others was instituted on 6. 3. 1981 for ejectment and arrears of rent. After a written statement was filed, suit was dismissed in default on 22. 4. 1988. A restoration application was moved on 12. 8. 1988, which was allowed and suit was restored on 28. 9. 1996. The tenants preferred a Civil Revision No. 178 of 1996 under Section 25 of Provincial Small Cause Courts Act, against the order allowing restoration application of the plaintiff/respondents. The said revision was dismissed on 15. 12. 1999. Subsequently, proceedings could not continue in the intervening period between 17. 2. 2000 to 24. 4. 2000 on account of strike of the lawyers. No application was moved by the plaintiffs bringing to the notice of the Court that defendant No. 10 Sona Devi is dead and her legal representatives are already on record. But this application was moved on 17. 5. 2000. An objection was filed to the aforesaid application stating therein that some of legal representatives were not on record and they are necessary to be impleaded as a party. The said objection was rejected on 14. 8. 2000 and an application for setting aside abatement of the suit on behalf of the plaintiff/respondents was allowed on 14. 8. 2000. This order was once again challenged in Second Civil Revision No. 156 of 2000. The IVth Additional District Judge, Faizabad, dismissed the revision on 29. 5. 2007, which is impugned in the instant writ petition.
(3.) GRIEVANCE of the petitioners-tenant is that while dismissing the revision, the Additional District Judge fixed rent at the rate of Rs. 1,000 with a direction that difference in the rent is payable w. e. f. 6. 3. 1981 up till date of judgment in the revision, i. e. , 29. 5. 2007. While doing so, the revisional court placed reliance on a decision of the Apex Court Atma Ram Properties (P.) Ltd. v. Federal Motors (P.) Ltd. , (2005) 1 SCO 705. The Apex Court held that grant of stay is equitable in nature, therefore, depending on the facts of a given case, an appellate court while passing an order of stay can very well impose such terms and conditions, which would satisfy the demand of justice. It was held that the power to grant stay in an appeal under Order XLI, Rule 5, C. P. C. is discretionary, therefore, on equitable consideration, rent could be enhanced and certain conditions can very well be imposed. What weighed with the revisional court while enhancing rate of rent was that the shop was in tenancy of the tenant since the year 1961, rate of rent after lapse of such a long period has considerably increased, whereas the present suit instituted as far back in the year 1981 is not proceeding for one or other reason. The landlord is getting a meagre amount of Rs. 100 per month. Submission of the counsel for the petitioners is that principle laid down by the Apex Court in Atma Ram's case (supra) is not applicable in the instant case since this revision arises out of S. C. C. suit instituted for payment of arrears of rent and enhancement made w. e. f. 6. 3. 1981, i. e. , date on which suit was instituted, is uncalled for and excessive during pendency of the suit before the Judge, Small Causes Court. This enhancement unilaterally will finally have a far reaching effect in calculating damages or mesne profit etc.;