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Allahabad High Court Rules Pre-Deposit for Appeal Not Exhausted at Filing for Recurring Rent
The has ruled that the mandatory 50% required under the for filing an appeal against a order is not exhausted at the time of institution when the liability under the impugned order is recurring, such as monthly rent. The court held that the obligation continues to apply to amounts falling due during the pendency of the appeal.
A Tenant’s Challenge to a Recurring Deposit Direction
The case involved a tenant, , which had challenged an order dated passed by the . The appellate court had partly allowed the tenant’s application seeking a report from the Ameen and directed the tenant to deposit fifty percent of the monthly rent as determined by the in its order dated – the very order under challenge in the appeal.
The tenant argued that it had already made the required under the at the time of filing the appeal. According to the tenant, this for institution of the appeal stood satisfied once fifty percent of the amount payable under the impugned order was deposited at the filing stage. Any further direction to deposit during the appeal, it contended, was impermissible.
The Landlord’s Counter: A Continuing
The respondents, including the landlord Hari Shankar Gupta and the , countered that the deposit made at the institution stage does not exhaust the where the order under challenge creates a . They argued that the phrase “ ” in the proviso must be understood in light of the nature of the liability – if it accrues periodically, the statutory requirement correspondingly operates on amounts becoming payable during the appeal. They relied on the High Court’s earlier decision in , which had examined this exact issue.
The Core Legal Question: Scope of “ ” in
Justice Dr. Yogendra Kumar Srivastava, presiding over the matter, framed the question as the true scope of the proviso to Section 35(1) when the ’s order determines a . The proviso states:
“Provided that no appeal shall lie unless the appellant has deposited fifty per cent of the under the impugned order of the .”
The court observed that the of the was not in dispute. What needed determination was the point of time up to which the “ ” is to be computed when the liability continues to accrue periodically rather than being a one-time payment.
Cannot Be Frozen at Filing Date
The High Court distinguished between one-time liabilities and recurring ones. Where an order determines a liability payable once, computation can be made with reference to that fixed amount. However, where the order revises or determines an amount payable periodically – such as monthly rent – the liability is not static.
“In the latter situation, the liability cannot be regarded as a static amount crystallised on the date on which the appeal is instituted. The order under challenge continues to operate and gives rise to a corresponding liability as each succeeding period expires. The expression ‘ ’ must, therefore, be understood in the context of the character of the liability created by the order and cannot, in the case of a , be artificially frozen as on the date of filing of the appeal.”
The court warned that a contrary interpretation would produce an anomalous result: a tenant could deposit fifty percent of the amount due up to the filing date and then retain the premises throughout the appeal without depositing the statutory proportion of monthly rent falling due under the very order being challenged.
Precedent in Hemant Kumar Garg Affirmed
Following the reasoning in Hemant Kumar Garg , the court held that where the impugned order gives rise to a recurring or , the statutory requirement of deposit extends to continuing accruals and is not exhausted by the initial deposit. The obligation continues so long as the liability under the order continues to accrue during the appeal.
The court clarified that a direction to deposit fifty percent of the recurring rent is not an additional or extraneous condition imposed by the appellate authority but is in furtherance of the statutory mandate. It does not amount to execution of the order under challenge but merely ensures continued compliance with the condition attached to the .
No Suspension of During Pendency
The court emphasized that the pendency of an appeal does not, by itself, suspend the created by the impugned order. Unless the order has been stayed or modified in accordance with law, the liability continues to accrue. The appellate authority is competent to issue directions to secure compliance with the requirement during the appeal.
Petition Dismissed, Direction Upheld
Applying these principles, the court found that the order dated determined monthly rent, making the liability recurring. The initial deposit by the tenant could not be treated as exhausting the requirement under the proviso. The appellate court’s direction to deposit fifty percent of the monthly rent during the appeal was justified and within jurisdiction.
The petitioner failed to point out any feature distinguishing the case from Hemant Kumar Garg or any jurisdictional error in the impugned order. Consequently, the High Court dismissed the petition under , upholding the appellate court’s direction for continued deposit of fifty percent of the monthly rent during the pendency of the appeal.
