TMI Blog2004 (12) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground available under Clause (b) of Sub-section (1) of Section 14 of the Act alleging that the respondent had illegally sublet the premises to M/s. Jay Vee Trading Co. Pvt. Ltd. and the sub-tenant was running its showroom in the premises. Vide order dated 19.3.2002, the Additional Rent Controller, Delhi held the ground for eviction made out and ordered the respondent to be evicted. The respondent preferred an appeal under Section 38 of the Act. By order dated 12.4.2001, the Rent Control Tribunal directed the eviction of the respondent to remain stayed but subject to the condition that the respondent shall deposit in the Court ₹ 15,000/- per month, in addition to the contractual rent which may be paid directly to the appellant. The deposits were permitted to be made either in cash or by way of fixed deposits in the name of the appellant and directed to be retained with the Court and not permitted to be withdrawn by either party until the appeal was finally decided. Raising a plea that the respondent could not have been directed during the pendency of the proceedings at any stage to pay or tender to the landlord or deposit in the Court any amount in excess of the contra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f stay, acts well within its discretionary jurisdiction by putting on terms the appellant who seeks an order of stay. On the other hand, Shri Ranjit Kumar, the learned senior counsel appearing for the respondent, defended the order of the High Court by raising several pleas noticed shortly hereinafter. 6. The order of eviction passed by Rent Controller is appealable to the Rent Control Tribunal under Section 38 of the Act. There is no specific provision in the Act conferring power on the Tribunal to grant stay on the execution of the order of eviction passed by the Controller, but Sub-section (3) of Section 38 confers the Tribunal with all the powers vested in a Court under the Code of Civil Procedure, 1908 while hearing an appeal. The provision empowers the Tribunal to pass an order of stay by reference to Rule 5 of Order 41 of the Code of Civil Procedure 1908 (hereinafter 'the Code', for short). This position was not disputed by the learned senior counsel appearing for either of the parties. 7. Sub-rule (1) and (3) of Rule 5 of Order 41 of the Code read as under:- Rule 5 Stay by Appellate Court (1) An appeal shall not operate as a stay of proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial loss' to the party applying for stay of execution within the meaning of Clause (a) of Sub-rule (3) of Rule 5 of Order 41 of the Code. Clause (c) of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant for stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate Court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate Court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not the statutory right conferred on the appellant. So also, an appellate Court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity: Depending on the facts and circumstances of a given case an appellate Court, while passing an order of stay, may put the parties on such terms the enforcement whereof would satisfy the demand for justice of the party found successful at the end of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal the tenant-appellant cannot be directed to pay any amount over and above the amount of contractual rent unless and until the decree or order of eviction has achieved a finality because, in view of the protection of rent control legislation enjoyed by the tenant, he shall continue to remain a tenant and would not become a person in unlawful possession of the property until the decree has achieved a finality from the highest forum upto which the litigation is pursued. Reliance was placed on the decision of this Court in Smt. Chander Kali Bai and Ors. v. Shri Jagdish Singh Thakur and Anr., [1978]1SCR625 , followed in Vashu Deo v. Balkishan, [2002]1SCR171 . This submission raises the following two issues:- (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) upto what point of time the tenant is liable to pay rent at the contractual rate and when does he become liable to pay to the landlord compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent? 11. Under the general law, and in cases where the tenancy is governed only by the provisions of Transfer of Property Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d held that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. This Court opined that what was held by the Madhya Pradesh High Court seemed to be a theory akin to the theory of relation back on the reasoning that on the passing of a decree for possession, the tenant's possession would become unlawful not from the date of the decree but from the date of the termination of the contractual tenancy itself. It is noteworthy that this Court has not disapproved the decision of the Madhya Pradesh High Court in Kikabhai Abdul Hussain's case but distinguished it by observing that the law laid down in Kikabhai Abdul Hussain's case was not applicable to the case before it in view of the definition of 'tenant' as contained in the M.P. Act and the provisions which came up for consideration of the High Court in Kikabhai Abdul Hussain's case were different. 12. Reliance, by the learned counsel for the respondent, on the case of Vashu Deo (supra) is misconceived, inasmuch as, in that case the Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (supra), this Court, on an elaborate discussion of the available authorities, held that once the superior Court has disposed of the lis before it either way, i.e. whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, Tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the court, tribunal or the authority below. However, this Court has also observed that the doctrine of merger is not of universal or unlimited application. In spite of merger the actual fact would remain that it was the decree or order appealed against which had directed the termination of tenancy with effect from which date the tenant had ceased to be the tenant, and the obligation of the tenant to deliver possession over the tenancy premises came into operation though the same remained suspended because of the order of stay. 16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings and the decree or order of eviction first pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property. 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 (I) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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