Anita Dominic D'Souza & Ors. v. Shaikh Abdul Rauf

1. This Interim Application is filed by Applicant/Landlord/Original Plaintiff, seeking a prayer to direct the tenant to deposit market rent in this Court pending the hearing and final disposal of the Civil Revision Application.

2. The suit filed by the Landlord for eviction was decreed by the Trial Court. Being aggrieved by the order of eviction tenant filed Appeal before Appellate Bench of the Court of Small Causes at Bombay. During the pendency of the Appeal before the Appellate Bench, the tenant was directed to deposit market rent as per the ratio laid down by the Supreme Court in case of Atma Ram Properties Vs. Federal Motors, reported in (2005) 1 SCC 705. However, the Appellate Bench reversed the decree and set aside the eviction decree. Hence, Civil Revision Application is filed by Landlords in this Court u/s. 115 of CPC challenging the impugned judgment and order passed by the Appellate Bench of the Court of Small Causes.

3. The Civil Revision Application was “Admitted” on 29 June 2022 after hearing both the sides. Mr. Sabrad appearing for Landlord, submitted that the landlord has a good case on merits and hence he will succeed in the present Civil Revision Application at the time of hearing. Mr. Sabrad further submitted that the suit was filed on the ground of bonafide requirement and even though the decree was passed by the Trial Court, the Appellate Court has without considering the legal position, reversed the decree passed by the Trial Court. He therefore, contended that it is necessary that the tenant be directed to continue to deposit market rent before this Court. In support of his argument, he cited the Supreme Court judgment of Atmaram Properties (supra).

4. Mr. Jaydeep, responded to the submission made on behalf of Landlord, by raising fundamental objection to the argument, by submitting that the ratio of Atmaram Properties (supra), will not be applicable in the present proceeding, since there is no eviction decree passed against the tenant. The Civil Revision Application, is filed in this court by Landlord challenging the dismissal of suit filed for eviction. Mr. Deo, further submitted that condition cannot be imposed on tenant/Respondent, when the tenant has not come before this Court seeking stay to the execution of decree. Mr. Deo, relied upon the judgment of (a) Niyas Ahmad Khan V/s. Mahmood Rahmat Ullah Khan & Anr. reported in (2008) 7 SCC 539 (b) The State of Maharashtra V/s. Super Max International Pvt Ltd. reported in (2009) 9 SCC 772, to buttress his arguments. Discussion and Conclusion:

5. After the Civil Revision Application filed by Landlord was admitted in this Court, the Landlord has filed this Interim Application, seeking direction to the Respondent/tenant to continue depositing market rent before this Court, as per ratio laid down by Supreme Court in the judgment of Atma Ram Properties (supra).

6. Hence, firstly it is necessary to consider the dicta of Supreme court, in Atma Ram Properties (supra) Supreme Court in the case of Atma Ram Properties (Supra) held that while passing an order of stay to eviction decree, the Appellate Court does have jurisdiction to put the applicant on such reasonable terms as would be reasonable to compensate the decree holder for loss occasioned by delay in execution of decree by grant of stay order. In the said proceedings eviction was sought on the ground of subletting. The decree of eviction was made out. In an Appeal preferred under Section 38 of the Delhi Rent Control Act, 1958, the Rent Control Tribunal directed the eviction to remain stayed but subject to the condition that the respondent shall deposit in the Court Rs.15,000/- p.m., in addition to the contractual rent which may be directly paid to the Appellant. Paragraph No.19 of the said judgment reads 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 in so far 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 (l) 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.” (Emphasis Supplied) Hence, in the judgment of Atma Ram Properties (Supra) Supreme Court, held that if a tenant suffers a decree of eviction, Appellate Court while granting stay to eviction decree, can put the tenant on reasonable terms, to compensate the decree holder for loss suffered by delay in execution of decree due to stay granted. The Court further held that after passing of eviction decree, in Appeal if stay to eviction decree is sought, the tenant is liable to pay mense profit or compensation for occupation of premises from the date of decree, at the same rate at which Landlord would have been able to let out the premises and earn rent if tenant had vacated.

7. Considering, the factual situation of the present proceedings it will be necessary to examine a situation where Landlord’s suit for eviction is dismissed, and he prefers appeal against the said dismissal of suit. The Supreme Court in the judgment of Niyas Ahmad Khan (supra) has held that when a landlord preferred an application against the rejection of an eviction decree, there is no scope for issue of any interim direction to the tenant to pay higher rent. Paragraph Nos. 9 and 10 of the said judgment reads as under:- “(9) We should however note the distinction between cases where a writ petition is filed by the tenant challenging the order of eviction and seeking stay of execution thereof, and cases where a writ petition is filed by the landlord challenging the rejection of a petition for eviction. What we have stated above is with reference to writ petitions filed by landlords. In writ petitions filed by tenants, while granting stay of execution of the order of eviction pending disposal of writ petition, the High Court has the discretion to impose reasonable conditions to safeguard the interests of the landlord. But even in such cases the High Court cannot obviously impose conditions which are ex facie arbitrary and oppressive thereby making the order of stay illusory. When a tenant files a writ petition challenging the order of eviction, the High Court may reject the writ petition if it finds no merit in the case of the tenant; or in some cases, the High Court may admit the writ petition but refuse to grant stay of execution, in which event, the tenant may be evicted, but can claim restoration of possession if he ultimately succeeds in the writ petition; or in some cases, the High Court finding the case fit for admission, may grant stay of eviction, with or without conditions, so that status quo is maintained till the matter is decided. Where the High Court chooses to impose any conditions in regard to stay, such conditions should not be unreasonable or oppressive or in terrorem. Adopting some arbitrary figure as prevailing market rent without any basis and directing the tenant to pay absurdly high rent would be considered oppressive and unreasonable even when such direction is issued as a condition for stay of eviction. High Court should desist from doing so.

10. To sum up, in writ petitions by landlord against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition. This again is subject to two limitations. First, the condition should be reasonable. Second, there should not be any bar in the respective State rent control legislation in regard to such increase in rent. Be that as it may.” (Emphasis supplied) Therefore, in Niyas Ahmad (Supra), Supreme Court has clarified the difference between proceedings filed by tenant challenging the eviction decree and proceedings filed by Landlord challenging the dismissal by eviction suit. Hence, I am not impressed with the submission urged by Mr. Sabrad, on behalf of Landlord.

8. It will also be worth mentioning here the judgment of Supreme Court in the case of Super Max International (supra) referred by Mr. Deo, wherein it was held that if there is reversal of eviction decree, the tenant would be entitled to receive the entire amount deposited by him. Paragraph No.79 of the said judgment reads as under:

9. In the light of the above analysis, I am of the view that there is no conflict between the ratio laid down by Supreme Court, in the judgment of Atma Ram Properties (supra) and Niyas Ahmed (supra). I am bound by the ratio laid down by the Supreme Court, in the case of Niyas Ahmed (supra) which is squarely applicable to the present proceeding, so also taking into consideration the law as laid down by Supreme Court in Super Max International (supra), the tenant is bound to get the refund of amount deposited. I find there is no merits in this Interim Application.

10. In the consequence, this Interim Application must fail, and is dismissed. (RAJESH S. PATIL, J.)