Appellate stay of eviction decree allows market rent deposit as reasonable term promptly post-admission; belated application after 13 years when ripe for hearing not maintainable, modifying admission order.

JUDGMENT :

RAJESH S. PATIL, J.

1. Heard learned advocates for both the sides.

2. This interim application has been filed by the applicant/landlord seeking deposit of market rate at Rs.5,55,000/- per month from October 2007. The civil revision application filed by tenant has been admitted on 23 June, 2010 filed by the BPCL.

3. I have taken a view in the judgment passed in Interim Application No. 15729 of 2023 in Civil Revision Application No. 646 of 2012 in case of Brijbhushan Chandrabali Shukla vs. Mahendra Yadav S/o Lavjari S. Yadav dated 12 January, 2024. Paragraph nos. 2 to 7 of the said judgment reads as under:-

Legal Frame Work :

2. It is necessary first to examine the ratio laid down by the Supreme Court in the judgment of Atma Ram Properties (Supra).

2.1. In the said judgment Supreme Court 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 passed. 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)

2.2. 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 mesne 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 vac