Mohammed Shafi Shaikh Ahmad (Deceased) Thr. Lrs. 1.1) Ms. Yasmin Shafi Shaikh v. Preetam Ramchand Chhugani (Deceased) Thr. Lrs. 1.1) Smt. Nirmala Preetam Chhugani

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 79 OF 2022 IN FIRST APPEAL NO. 20 OF 2022 Mohammed Shaf Shaaikh Ahmad Deceased through LRs. … Applaicant IN THE MATTER BETWEEN : Mohammed Shaf Shaaikh Ahmad Deceased through LRs. … Petaitaioner Versus Preetam Ramchand Chhuganai Deceased through LRs. … Respondent Mr. Srainaivas Bobde a/w. Mr. Sagar Kursaija ai/b. Daipalai Kedar, Advocate for Applaicant. Mr. Godbole, Advocate a/w. Mr. Vailas B. Tapkair, Advocate for Respondent. CORAM : K. R. SHRIRAM & RAJESH S. PATIL, JJ DATE : JANUARY 24, 2023 PC

¶1Interaim applaicataion ais for stay of the aimpugned judgment dated 16th March 2020.

¶2Paragraph Nos. 1 and 2 of the order dated 11th January 2022 reads as under : "1. Mr. Danai makes a reasonable suggestaion. He states that Fairst Appeal aitself may be laisted for fnal daisposal at an early date at the admaissaion stage. In the meantaime, he submaits, executaion of the decree dated 16th March 2020 be stayed at least to the extent of possessaion.

2.The decree was also for an amount of Rs. 6 lakhs as mesne profts. The appellant waill be requaired to deposait thais amount waithain saix weeks from today. We do not permait waithdrawal of the amount at thais stage."

¶3On 18th February 2022, the Court dairected the Regaistry to accept the deposait of Rs.6,00,000/- and also put the partaies to notaice that aif the appeal cannot be taken up for fnal daisposal, the Court would consaider the grant of an appropraiate ainteraim relaief.

¶4On 24th February 2022, the Court was pleased to pass the followaing order : "1. In accordance waith our order of 11th January 2022, the Appellant has deposaited the amount of Rs.6,00,000/- decreed as mesne profts.

2.Mr. Bobde for the Appellant states that whaile a praivate paper book has been fled he has not had taime to study ait thoroughly yet.

3.In any case, we are unable to take up the matter for fnal daisposal today for want of taime and saince there are very many matters pendaing admaissaion on our docket.

4.A questaion, waill, therefore, araise as to what ainteraim order should be fashaioned untail the fnal daisposal. The fndaing of the Traial Court ais that the Appellant (Oraigainal Defendant) ais a trespasser. He ais ain possessaion of a large plot of about 640 sq.mtrs. at Saindh Socaiety, Aundh, Pune. Thais ais undoubtedly a praime area. There ais a ground and one upper foor structure on that plot, also ain possessaion of the Appellant.

5.Rather than select some ad hoc number we waill let both saides obtaain respectaive valuataion reports. For thais purpose, we dairect the Appellants to permait the Respondents, theair Advocates and theair valuers to enter upon the property for the laimaited purpose of ainspectaion. Thais ais to be done after 48 hours' praior notaice to Mr. Bobde's Attorneys. These reports waill then be then placed before the Court.

6.Laiberty to both saides to apply for a laistaing thereafter.

¶7Prevaious ainteraim order to containue.

8.All concerned waill act on productaion of a daigaitally saigned copy of thais order."

¶5Pursuant to thais order, both appellant and respondent have placed on record theair respectaive valuataion reports. Respondent has placed a valuataion report dated 10th March 2022 of one Kaailash B. Gadage, Government Regaistered Valuers and Chartered Engaineers. Thais ais an extensaive report and the valuer has suggested that the rent per month as per the market value would be Rs.5,16,600/- and as per the ready reckoner Rs.1,47,350/-.

¶6Appellant has placed on record a valuataion report dated 2nd May 2022 by Archaitect Sanjeev Bhosale ain the name and style SPOT Consultants, Archaitect, Interaior Desaigner & Government Regaistered Valuer. In the report dated 2nd May 2022, he has only gaiven a fndaing on the appropraiate rent for the buaildaing on the 604 Sq.Mtrs. plot of land and stated that the aideal rent for the buaildaing would be about Rs.8,000/- to 9,000/- per month. We have to observe that thais valuataion report has been fled despaite the party beaing aware that the Court was lookaing for valuataion of the larger plot of land aitself. We say thais ain vaiew of paragraph 4 of the order dated 24th February 2022, where the Court has observed that appellant ais ain possessaion of 'large plot of land about 640 Sq.Mtrs. (whaich should be 604 Sq.Mtrs.)' at Saindh Socaiety, Aundh, Pune whaich ais undoubtedly a praime area. The Court has also observed that there ais ground and one upper foor structure 'on that plot' also ain possessaion of the appellant. Therefore, the Court has very clearly observed that appellant beaing ain possessaion of the large plot of land along waith structure thereon should be granted protectaion to containue to have possessaion pendaing the daisposal of appeal and appellant needs a stay.

¶7Therefore, we reject the valuataion report submaitted by appellant. Consaideraing the valuataion report of Kaailash B. Gadage relaied upon by respondents, we would fx a monthly compensataion of Rs.3,50,000/-. We have taken the average of rent suggested as per the market value and the rent suggested as per the ready recokner value for 2021-22. Thais amount shall become payable from the date of the decree, ai.e., 16th March 2020 ain whaich appellant has been declared as a trespasser. The compensataion payable up to 15th January 2023 waill be 1,19,00,000/- (Rs.3,50,000/- x 34 months). From 16th January 2023 untail the hearaing and fnal daisposal of the thais appeal, the appellant shall pay the same amount of Rs.3,50,000/- per month and thais amount shall be paaid on the 20th of every month ain advance. Thais would mean for the peraiod 16th January 2023 to 15th February 2023, an amount of Rs.3,50,000/- has already become due and payable. Therefore, a total of Rs.1,19,00,000/- + 3,50,000/- (Rs.1,22,50,000/-) for the peraiod upto 15th February 2023 ais payable and thais amount shall be paaid waithain four weeks from today. Thereafter, an amount of Rs.3,50,000/- per month or part thereof shall be paaid by appellant on 20th of every month ain advance. The amounts shall be deposaited waith the Regaistrar, Appellate Saide. If there ais any default, the stay waill stand vacated waithout any further notaice and appeal aitself waill get daismaissed waithout further reference to the Court.

¶8The amount deposaited above shall be ainvested by the Regaistrar, Appellate Saide ain a Nataionalaized Bank for an ainaitaial peraiod of 13 months to be renewed year to year untail further orders. If the appeal ais not daisposed waithain one year from today, the compensataion payable waill be aincreased by 10% per month.

¶9It waill be apposaite to reproduce paragraphs 8 to 10 and 12 to 18 of an order dated 25th February 2015 of thais Court ain Caivail Applaicataion No. 1092 of 2013 ain Wrait Petaitaion No. 2748 of 2004 – Mr. Dainshah Jal Daruwala & Ors. v. M/s. Impex (Indaia) Laimaited. It reads as under : "8. Even ain the present case, by the order passed on

27.4.2004, duraing the pendency of thais wrait petaitaion under Artaicle 227 of the Constaitutaion of Indaia, the petaitaioners have been allowed to containue to remaain ain occupataion of the premaises. The petaitaioners have also remaained ain occupataion of the premaises by payaing an amount equaivalent only to the contractual rate of rent ai.e., Rs.375/-. Therefore, ain my vaiew, the saituataion ain the present case ais also saimailar to the case of Atmaram Propertaies (supra). If one reads the judgment ain Atmaram propertaies (supra), the appellate authoraity whaile exercaisaing aits juraisdaictaion under Order 41 Rule 5 of the Code of Caivail Procedure, 1908, put the respondent/tenant on terms because the respondent/tenant who had suffered an order of evaictaion must comply and vacate the premaises. Though the respondent/tenant had a raight of appeal statutoraily hais prayer for grant of stay has been dealt waith ain exercaise of equaitable daiscretaionary juraisdaictaion of the appellate authoraity.

¶9Mere preferraing of an appeal does not operate as stay on the decree or order appealed agaainst nor on the proceedaings ain the court below. A prayer for the grant of stay of proceedaings or on the executaion of decree or order appealed agaainst has to be specaifcally made and the court has daiscretaion to grant an order of stay or to refuse the same. The praincaipal consaiderataion whaich prevaails waith the court ais that ain spaite of the appeal or wrait havaing been entertaained for hearaing by the court, the appellant or petaitaioner may not be depraived of the fruaits of hais success ain the event of the appeal or petaitaion beaing allowed. Thais consaiderataion ais paitted and weaighed agaainst the other paramount consaiderataion: why should a party havaing succeeded from the court below be depraived of the fruaits of the decree or order ain hais hands merely because the defeated party has chosen to ainvoke the juraisdaictaion of a superaior forum ?

¶10Though the power exercaised by thais court under Artaicle 227 of the Constaitutaion of Indaia ais basaically supervaisory ain nature, the grant of stay of the order of the appellate authoraity ais dealt waith by thais court ain exercaise of aits equaitable daiscretaionary juraisdaictaion. Whaile exercaisaing aits equaitable daiscretaionary juraisdaictaion, thais court ais certaainly entaitled to and has the powers to aimpose condaitaions. Daispossessaion, duraing the pendency of an appeal of a party ain possessaion, ais generally consaidered to be "substantaial loss" to the party applyaing for stay of executaion. The power to grant stay ais daiscretaionary and fows from the juraisdaictaion conferred on court whaich ais equaitable ain nature. To secure an order of stay merely by preferraing an appeal ais not a statutory raight conferred on the appellant. So also, court ais not ordaained to grant an order of stay merely because an appeal has been preferred and an applaicataion for an order of stay has been made. Therefore, an applaicant for order of stay must do equaity for seekaing equaity. Thus, for example, though a decree for payment of money ais not ordainaraily stayed by the appellate court, yet, aif ait exercaises aits juraisdaictaion to grant stay ain an exceptaional case ait may dairect the appellant to make payment of the decretal amount waith ainterest as a condaitaion precedent to the grant of stay, though the decree under appeal does not make provaisaion for payment of ainterest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affaairs and events gaained by judaicaial experaience and judaicaially notaiceable facts, over and above the materaial avaailable on record-all these provaide useful ainputs as relevant facts for exercaise of daiscretaion whaile passaing an order and formulataing the terms to put the partaies on. x x x

¶12Keepaing all these realaitaies ain maind, the Apex Court ain Atmaram Propertaies case (supra) has ain paragraphs 4, 18 & 19 has held as under : "4. Ordainaraily thais Court does not ainterfere waith daiscretaionary orders, more so when they are of ainteraim nature, passed by the Haigh Court or subordainate Courts/Traibunals. However, thais appeal raaises an aissue of frequent recurrence and, therefore, we have heard the learned counsel for the partaies at length. Landlord-tenant laitaigataion constaitutes a large chunk of laitaigataion pendaing ain the Courts and Traibunals. The laitaigataion goes on for unreasonable length of taime and the tenants ain possessaion of the premaises do not maiss any opportunaity of flaing appeals or revaisaions so long as they can thereby afford to perpetuate the laife of laitaigataion and containue ain occupataion of the premaises. If the plea raaised by the learned senaior counsel for the respondent was to be accepted, the tenant, ain spaite of havaing lost at the end, does not loose anythaing and rather stands to gaain as he has enjoyed the use and occupataion of the premaises, earned as well a lot from the premaises aif they are non-resaidentaial ain nature and all that he ais held laiable to pay ais damages for use and occupataion at the same rate at whaich he would have paaid even otherwaise by way of rent and a laittle amount of costs whaich ais generally ainsaignaifcant. The appellate court whaile exercaisaing juraisdaictaion under Order 41 Rule 5 of the Code daid have power to put the appellant tenant on terms. The tenant havaing suffered an order for evaictaion must comply and vacate the premaises. Hais raight of appeal ais statutory but hais prayer for grant of stay ais dealt waith ain exercaise of equaitable daiscretaionary juraisdaictaion of the appellate court. Whaile orderaing stay the appellate court has to be alaive to the fact that ait ais depraivaing the successful landlord of the fruaits of the decree and ais postponaing the executaion of the order for evaictaion. There ais every justaifcataion for the appellate court to put the appellant tenant on terms and dairect the appellant to compensate the landlord by payment of a reasonable amount whaich ais not necessaraily the same as the contractual rate of rent.

¶18That apart, ait ais to be noted that the appellate Court whaile exercaisaing juraisdaictaion under Order 41 Rule 5 of the Code daid have power to put the tenant-appellant on terms. The tenant havaing suffered an order for evaictaion must comply and vacate the premaises. Hais raight of appeal ais statutory but hais prayer for grant of stay ais dealt waith ain exercaise of equaitable daiscretaionary juraisdaictaion of the appellate Court. Whaile orderaing stay the appellate Court has to be alaive to the fact that ait ais depraivaing the successful landlord of the fruaits of the decree and ais postponaing the executaion of the order for evaictaion. There ais every justaifcataion for the appellate Court to put the tenant-appellant on terms and dairect the appellant to compensate the landlord by payment of a reasonable amount whaich ais not necessaraily the same as the contractual rate of rent. In Marshall Sons & Co.

(I)Ltd. Vs. Sahai Oretrans (P) Ltd. & Anr., (1999) 2 SCC 325,thais Court has held that once a decree for possessaion has been passed and executaion ais delayed depraivaing the judgment-credaitor of the fruaits of decree, ait ais necessary for the Court to pass appropraiate orders so that reasonable mesne profts whaich may be equaivalent to the market rent ais paaid by a person who ais holdaing over the property.

¶19To sum up, our conclusaions are:

(1) whaile passaing an order of stay under Rule 5 of Order 41 of the Code of Caivail Procedure, 1908, the appellate Court does have juraisdaictaion to put the applaicant on such reasonable terms as would ain aits opainaion reasonably compensate the decree-holder for loss occasaioned by delay ain executaion of decree by the grant of stay order, ain the event of the appeal beaing daismaissed and ain so far as those proceedaings are concerned. Such terms, needless to say, shall be reasonable;

(2) ain case of premaises governed by the provaisaions of the Delhai Rent Control Act, 1958, ain vaiew of the defnaitaion of tenant contaained ain clause (l) of Sectaion 2 of the Act, the tenancy does not stand termainated merely by aits termainataion under the general law; ait termainates waith the passaing of the decree for evaictaion. Waith effect from that date, the tenant ais laiable to pay mesne profts or compensataion for use and occupataion of the premaises at the same rate at whaich the landlord would have been able to let out the premaises and earn rent aif the tenant would have vacated the premaises. The landlord ais not bound by the contractual rate of rent effectaive for the peraiod precedaing

the

date

of

the

decree;

(3)..................................."

¶13In thais case also the laitaigataion has gone on for a very long peraiod. The oraigainal suait was fled sometaime ain September-1998 and the traial court decreed the suait on

13.6.2001. The appeal fled by the petaitaioners came to be daismaissed on 23.1.2004. On 27.4.2004 rule was aissued and made returnable early waith laiberty to apply for a fxed date of hearaing. The present Caivail Applaicataion aitself has been fled ain March-2013. We are ain February-2015. When laitaigataion laike thais go on for such a length of taime, the tenants laike the petaitaioners containue ain occupataion of the premaises and aif they lose ain the end, do not lose anythaing. On the contrary they stand to gaain havaing enjoyed the use and occupataion of the premaises almost for free. They would have also earned lot from the premaises aif they are non-resaidentaial ain nature and all that they waill be laiable to pay for use and occupataion by way of damages ais the same rate whaich they would have even otherwaise paaid by way of rent. The Apex Court has also held that once a decree for possessaion has been passed and executaion ais delayed depraivaing the landlord of the fruaits of decree, ait ais necessary for the courts to pass appropraiate orders so that reasonable compensataion to the decree-holder for loss/delay ain executaion of the decree by the grant of stay order has to be paaid.

¶14In the caircumstances, I hold that the respondents are entaitled to be reasonably compensated.

¶15The valuataion report relaied upon by the respondents ais aissued ain Aprail-2008, ai.e., almost 7 years ago. The petaitaioners however, deny the basais for calculataion. The property ais land plus exaistaing resaidentaial heraitage Bungalow, out houses and garden on plot area of 5289.30 sq. mtrs. whaich ais approxaimately about 57000 sq. ft. (1 sq. mtr. = 10,763 sq. feet) whaich ais about 1.31 acres. The property also has out houses, servant's quarters, W.C and bath for servants, garage, bore well etc. Koregaon park ais a haigh class affuent area.

¶16The valuataion report aissued on 17.4.2008 suggests that mesne profts as compensataion can be anywhere between Rs.16,00,000/- to Rs.16,50,000/- per month. Though property praices would have gone up ain the last 6 to 7 years, ain my vaiew, takaing ainto account the descraiptaion of the property and locataion etc. 35% of the amount that was aindaicated ain Aprail-2008, rounded of to Rs.6,00,000/, would be a reasonable compensataion per month.

¶17The petaitaioners are therefore, dairected to pay sum of Rs.6,00,000/- per month as compensataion from May-2004 untail February 2015 ai.e., for 118 months waithain two months eaither lumpsum or ain four ainstallments and containue to pay the same for every successaive month on or before 5th day of the month untail daisposal of the present petaitaion. The amount to be deposaited waith the Regaistry and the Regaistry shall ainvest the amount waith a nataionalaized bank. The monthly ainstallment to be ainvested every month on or before 21st of that month.

¶18By thais order no prejudaice would be caused to the petaitaioners as well ain as much as aif the petaitaioners ultaimately succeed,the petaitaioners waill be entaitled to return of the money waith whatever ainterest ais earned."

¶10Subject to payaing the above amounts, appeal be laisted for fnal hearaing on 2nd March 2023. (RAJESH S. PATIL, J.) (K. R. SHRIRAM, J.) RAJU DATTATRAYA GAIKWAD Digitally signed by RAJU DATTATRAYA GAIKWAD Date: 2023.02.01 +0530