JAIN, J. - (1.) HEARD learned counsel for the parties on the stay application.
(2.) LEARNED counsel for appellant contended that appeal has already been admitted, therefore, judgment and decree of eviction passed by both the court below be stayed during pendency of this second appeal. Learned counsel for the plaintiff-respondent contended that both the courts below have passed a decree of eviction of the rented premises in favour of the plaintiff-respondent on the ground "non-user of the rented premises" by the defendant-tenant and, in case any interim stay is granted against eviction by this court on the ground that appeal has already been admitted then at-least the mesne profit as per prevalent market rate of monthly rent of the rented premises should be fixed during the pendency of this second appeal. Learned counsel for the respondent has filed additional affidavit on 11th of May, 2006 with copy to the counsel for the appellant. The time was sought by the learned counsel for the appellant to file counter affidavit and time was allowed to the appellant and the case was fixed on 18th of May, 2006. Again the case was adjourned for 26th of May, 2006 and further in July, 2006. The matter was again listed yesterday on 12th of July, 2006 and on the request of the learned counsel for the appellant, the matter was adjourned for today but still no reply to the additional affidavit filed by the respondent has been filed by the appellant. The respondents in their additional affidavit has mentioned that the present market rent of the adjoining premises is about Rs. 50/- per square feet. They have placed on the record a copy of the lease-deed of the adjoining property which was let out at the rate of Rs. 23/- per square feet in the year 1997 and Rs. 35/- per square feet in the year 2001. The property is situated on M. I. Road, Jaipur, which is one of the best market and location of Jaipur City. The area of the suit premises is 1512 square feet and according to the learned counsel for the respondent the prevalent monthly market rent of the premises approximately comes to Rs. 75,000/- per month. The counsel for the respondent contended that the property is being used for commercial purpose and was let out about 38 years ago i. e. in the year 1968 at the rate of Rs. 140/- per month only, therefore, he contended that a reasonable amount of mesne profit/monthly rent be fixed of the rented premises. The Hon'ble Supreme Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) ltd. (2005) 1 SCC 705, considered the jurisdiction of the appellate court while passing order of stay under Order 41 Rule 5 of the C. P. C. , and held that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of the C. P. C. , on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay, while passing the stay order in his favour, in the event of the appeal being dismissed. The Hon'ble Apex Court in the above referred case held 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 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 (1) 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".
(3.) THE Hon'ble Supreme Court again in Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562 = 2005 (3) RLW (SC) 425, while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra) reiterated the same proposition of law. This court, while deciding application vide order dated 9. 3. 2006, filed by landlord-respondent under Section 151 C. P. C. in S. B. Civil Second Appeal No. 458/2001, Madan Bansal vs. Ramnarayan Sharma, considered the similar point and observed as under: ". . . . . the criteria for admission of the appeal are altogether different than what adopted at the time of hearing of the appeal for final disposal. Even if the appeal is admitted by the First Appellate Court being a statutory appeal or second appeal as substantial question of law arises then it does not mean that it will be allowed finally. Once appeal is admitted, then it is commonly known, that it goes for hearing in due course and due to long list of pending old appeals, it takes quite considerable long time in its final disposal. In such circumstances a decree-holder is not only deprived of getting the possession of the rented premises, but also deprived of the monthly rent or the mesne profit or compensation for use and occupation of the rented premises as per the market value of the shop or the prevalent rent of the premises. The Order 41 Rule 5 of the C. P. C. gives jurisdiction to the appellate court to pass interim stay staying the execution of the decree but the interim stay order is required to be passed reasonably and while doing so the interest of decree-holder is also required to be protected. " After considering the rival submissions of the learned counsel for the parties and above referred judgments of the Hon'ble Supreme Court and further that this second appeal has already been admitted by this Court. I think it fit and proper to stay the execution of the eviction decree passed against the appellant fixing the mesne profit of the rented premises at the rate of Rs. 20,000/- per month and, accordingly. I pass the following order: 1. The execution of the eviction decree passed against the defendant-appellant shall remain stayed during the pendency of this second appeal provided the defendant-appellant deposits all arrears of monthly rent/mesne profit as per decree of both the courts below for the period upto 30. 06. 2006 within a period of one month from today and further the defendant-appellant shall deposit the monthly mesne profit of the rented premises at the rate of Rs. 20,000/- per month by 15th day of each succeeding month with effect from 1st of July, 2006; 2. The plaintiff-respondent will furnish the details of his Bank Account to the defendant-appellant within a period of two weeks to the learned counsel for the defendant-appellant or to the appellant directly and in case the details of the Bank Account is furnished then the appellant is directed to deposit the amount of arrears of rent as well as monthly mesne profit as directed above in the bank account of the plaintiff-respondent. It is made clear that in case the details of the bank account is not furnished then the appellant will deposit the amount, as directed above, in the lower court. 3. It is further made clear that in case the defendant- appellant fails to deposit the arrears of monthly rent/mesne profit within a period of one month from today or the monthly mesne profit as directed above with effect from 1. 7. 2006 for consecutive two months then it will be open for the plaintiff- respondent to execute the decree of eviction passed in her favour even during the pendency of this second appeal. ;