JAIN, J. - (1.) HEARD learned counsel for the parties on the stay application.
(2.) LEARNED counsel for the plaintiff-respondents contended that the first appellate Court has passed a decree of eviction of the rented premises in favour of the plaintiff-respondents and this Court while issuing notice to show cause has passed interim stay order not to evict the defendant-appellant, therefore, his submission is that in case the interim stay order is confirmed during the pendency of this second appeal, then at least mesne profit of the property in dispute may be enhanced at the present market value of the premises in dispute. He contended that the rented shop was let out 64 years ago at the yearly rent of Rs. 100/- and at present the prevalent market rate of rent of the property in dispute is about Rs. 6000/- per month, whereas learned counsel for the defendant-appellant, on the instructions of his client, contended that the prevalent market rate of rent of the property in dispute in dispute is not more than Rs. 500/- per month. 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 u/o. 41 R. 5 of the CPC and held that the appellate Court has jurisdiction to put the applicant u/o. 41 R. 5 of the CPC 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 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 u/r. 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 Sec. 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminated with the passing of the decree for eviction. With effect from the 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 Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562, while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra), reiterated the same proposition of law. I have considered the submissions of the learned counsel for both the parties. The learned counsel for the appellant does not dispute that Rs. 100/- was the yearly rent fixed about 64 years ago and prevalent market rate of monthly rent has been increased speedily. I have already admitted the appeal on the substantial question of law, therefore, I think it fit and proper to allow this stay application staying the eviction decree passed against the defendant-appellant during the pendency of the second appeal provided the defendant-appellant deposits/pays for mesne profit of the property in dispute at the rate of Rs. 2000/- per month with effect from dt. 1. 1. 2006. The mesne profit will be deposited by 15th day of each succeeding month. It will be open for the plaintiff-respondents to inform to the defendant- appellant about his Bank Account and in case the same is furnished then the appellant is directed to deposit the amount of rent in the Bank Account of the respondent. It is made clear that in case the defendant-appellant fails to deposit the mesne profits, as directed above, for consecutive two months, then it will be open for the plaintiff-respondents to execute the decree for eviction passed in their favour even during the pendency of this second appeal. The stay application is accordingly disposed of with the aforesaid directions. . ;