JAIN, J. - (1.) HEARD learned counsel for the parties.
(2.) WHETHER the plaintiff is entitled to a suitable direction in his favour directing the defendant to pay reasonable amount of mesne profit or compensation for use and occupation of the premises and what should be the reasonable amount of mesne profit or compensation in the facts and circumstances of the present case, during the pendency of this second appeal, are the points involved in this application ? The landlord-respondent has filed the present application under Section 151 CPC on 17. 10. 2005 with a prayer that a direction be issued to tenant-appellant to pay the suitable monthly compensation for use and occupation of the rented shop by way of mesne profit/compensation at the rate of Rs. 4000/- per month from the date of filing of the second appeal in this Court i. e. , 14. 9. 2001. He contended that the rented shop is situated at Tonk which was let out to the defendant at the monthly rent of Rs. 100/- and the same rent is going on since 1977 onwards. The suit property, if presently let out, would fetch monthly rent of Rs. 4000/- minimum, looking to its size and location. As an illustration he has placed on the record a true and correct Photostat copy of the rent-note in respect of the property smaller in size than that of the suit property in the vicinity which has recently been let out by one Smt. Savitri wife of Shyam Lal Devani, to one tenant Shri Naresh Kumar son of Banshi Lal, at the monthly rent of Rs. 4,000/ -. Therefore, his submission is than in view of the fact that this second appeal has already been admitted and eviction decree passed in his favour has been stayed and disposal of the second appeal is likely to take considerable long time in view of the long list of pending old second appeals for hearing, he may suitably be compensated by way of fixing compensation at the rate of Rs. 4000/- per month or reasonable amount which this court thinks fit and proper during the pendency of this second appeal. The learned counsel for the tenant-appellant filed its reply to the above application and also an additional affidavit dated 24. 2. 2006 stating that as per his enquiry and knowledge the market rate of rent of the shop in the same area is in between Rs. 100 to Rs. 500/- per month, therefore, at the most this court may fix the mesne profit by way of compensation for the use and occupation of the rented shop during the pendency of this second appeal at the maximum rate of Rs. 500/- per month. I have considered the rival submissions and examined the contents of application, reply and additional reply of the parties duly supported by an affidavit. The plaintiff-respondent filed a suit for eviction on the ground of default in respect of rented shop, against the defendant-tenant, which was decreed by the lower court vide its judgment and decree dated 13. 2. 1996. The defendant was directed to handover the vacant possession of the rented premises within a period of two months. However, on appeal, the first appellate court stayed the decree of the lower court and, as such, the plaintiff-respondent could not get vacant possession of the rented shop. However, the first appellate court dismissed the appeal of the defendant vide its judgment and decree dated 31. 7. 2001. Being aggrieved with the same, the appellant filed the present second appeal before this court on 14. 9. 2001. This court passed interim stay order maintaining status quo in respect of the property in dispute on 21. 3. 2002 in presence of both the parties and vide order dated 15. 3. 2005 admitted the second appeal in view of substantial question of law was arising in this appeal. This court also stayed the execution of eviction decree subject to a condition that the appellant deposits whole amount of arrears of rent and continues to pay/deposit the monthly rent by 15th day of every succeeding month.
(3.) FROM the record it is clear that monthly rent of the disputed shop was Rs. 100/- and the same is going on since 1977 onwards. The decree of eviction was passed in favour of the plaintiff-respondent way back on 13. 2. 1996 but the plaintiff- respondent could not get vacant possession of the shop as the defendant preferred appeal. Normally the regular first appeal is admitted being a statutory appeal and interim stay order is also passed particularly if impugned decree is eviction decree. The long pendency of old cases in the courts cannot be denied. The criteria for admitting the appeal and grant of stay are altogether different than the criteria adopted by the courts at the time of final disposal of the appeal. If the appellate court considers a prima facie case then the appeal is admitted. So far as regular first appeal is concerned the same is normally admitted unless the appellate court considers that it is liable to be dismissed at admission stage itself. The first appellate court dismissed the appeal of the defendant vide its judgment and decree dated 31. 7. 2001 and the judgment and decree of the lower court dated 13. 2. 1996 was affirmed. However, this court, considering that a substantial question of law arises in this second appeal, admitted the same and stayed the execution of the eviction decree. As already observed above, 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 than 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 CPC 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. The Hon'ble Supreme Court in 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 CPC and held that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of the CPC on such reasonable terms as would, in its opinion, reasonable compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, 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. " The Hon'ble Supreme Court again in Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562 (RLW 2005 (3) SC 425), while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra), reiterated the same proposition of law. ;