JAIN, J. - (1.) HEARD learned counsel for the parties on the stay application under Order 41 Rule 5 read with Section 151 of the CPC.
(2.) LEARNED counsel for the defendant-appellant submits that this second appeal, on the substantial question of law involved therein, has already been admitted today, therefore, interim stay order passed by this Court on 4. 5. 2001 directing both the parties to maintain the status quo be confirmed till the last disposal of this second appeal. The learned counsel for the plaintiff-respondent submits that the First Appellate Court passed a decree of eviction in favour of the plaintiff way back on 13. 3. 2001 on the ground of material alteration of the rented premises but till date the plaintiff could not get possession of the rented premises because of ex-parte interim stay order granted by this Court, therefore, he contended that the interim stay order should be vacated and the appellant be directed to hand over the possession of the rented premises. In alternative, the learned counsel for the plaintiff-respondent contended that in case this Court confirms the interim stay order then at least mesne-profit of the rented premises as per prevalent market rate of rent may be awarded in favour of the plaintiff-respondent during the pendency of this second appeal. Learned counsel for the plaintiff-respondent further contended that the present market rate of the monthly rent of the adjacent shop is approximately Rs. 3500/-, whereas the learned counsel for the defendant-appellant Mr. R. K. Agarwal, submits that the prevalent market rate of the monthly rent of the shop in question is not above Rs. 1500/ -. However, the learned counsel for the defendant-appellant does not dispute that the monthly rent of the shop in question was Rs. 20/- in the year 1967 i. e. 39 years ago and the Courts below have awarded mesne-profit at the rate of Rs. 20/- per month only, whereas shop in question is situated at Subhash Chowk, Jaipur, which is one of the important market of the Jaipur City. 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 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 Apex Court in the above referred case held as under: " 19. Th 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, 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 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 = (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. This Court, while deciding application vide order dated 9. 3. 2006, filed by the land-lord respondent under Section 151 CPC in S. B. Civil Second Appeal No. 458/2001 Mandan 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 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. " After considering the rival submissions of learned counsel for the parties and further that this second appeal has already been admitted by this Court, I am of the view the execution of the eviction decree in respect of rented shop passed by the First Appellate Court against the appellant is liable to be stayed during the pendency of this second appeal. ;