- (1.) Heard the learned Advocates appearing for the parties.
(2.) The slay application, being CAN. 2437 of 2006, has been assigned before this Bench by the Hon'ble the Chief Justice by His Lordship's order dated 6th June, 2006. The stay application has been preferred by the appellant/ tenant, a partnership firm as it appears from the cause title of the Memorandum of Appeal, who has suffered judgement and decree from the first appellate Court reversing the judgement and decree of the trial Court. It is an admitted fact that the tenant for a longer period of more than 40 years is occupying an area of more or less 500 Sq.ft. at a rental of Rs. 55/- per month. There is no doubt about the locational and topographical condition of the area that it is in centrally located business place at Howrah within the Howrah Municipal Corporation and nearby of that there is an air conditioned market. In opposing the stay application, the landlord has filed affidavit-in-opposition as well as Supplementary Affidavit disclosing the prevalent rental rate of that area. In the Supplementary Affidavit affirmed on 6th June, 2006 a document has been annexed issued by the Corporation Bank wherefrom it appears that the area which is adjacent to suit premises, the rental has been fixed to the extent of Rs. 12,000/- per month for an area of 150 sq.ft.
(3.) Learned Advocate appearing for the appellant submits with reference to the stay application that as there is merit in the second appeal, this Court may allow this stay application without imposing any condition of payment of rental at the market rate by applying the judicial views to this effect by the Apex Court passed in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005)1 SCC 705 ; the judgement passed in the case of Anderson Wright and Co. v. Amar Nath Roy reported in AIR 2005 SC 2457 : (2005)2 WBLR (SC) 230 and the judgement passed in the case of Achal Misra v. Rama Shanker Singh & Ors. reported in (2005)5 SCC 531 on the ground that those judgements are distinguishable as in those cases the concerned areas are in posh areas. However, learned senior Counsel appearing for the appellant has not disputed the legal principle that once a tenant suffered a decree of eviction, his status is being changed from the status as was being enjoyed earlier under the statutory provision during pendency of the litigation. The Apex Court also dealt with that aspect and held that suffering of eviction decree by a tenant practically changes its entire nomenclature of his status so far as tenancy right is concerned and he cannot enjoy any right as statutory tenant, a right which was available to him during the litigation period after service of notice of eviction which is a condition precedent for filing a suit for eviction. That view is discussed in detail in the Atma Ram Properties (P) Ltd. (supra). It is the views of the Apex Court, as it appears from the aforesaid three judgements, that while passing any order of stay exercising the power under Order 41 Rule 5 of the Code of Civil Procedure, 1908 by the appellate Court, it is the discretion of the appellate Court to pass an appropriate order by fixing the reasonable terms as would be reasonable to compensate the decree holder due to the delay in execution of the decree. For passing such stay order, Order XLI Rule 5 also speaks of the fact that mere filing of the appeal simplicitor could not operate the stay of the proceeding under decree or order appealed against unless the appellate Court passes an order on sufficient cause about stay of the execution of such decree. The language of Order XLI Rule 5 which is required to be considered and interpreted reads such. " 5. Stay by Appellate Court. - (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree ; but the Appellate Court may for sufficient cause order stay of execution of such decree. (2) Stay by Court which passed the decree. - Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed. (3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied - (a) that substantial loss may result to the party applying for stay of execution unless the order is made ; (b) that the application has been made without unreasonable delay ; and (c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him. (4) Subject to the provisions of sub-rule (3), the Court may make an ex parte order for stay of execution pending the hearing of the application. (5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall not make an order staying the execution of the decree.";