2024:BHC-AS:5458 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO. 15729 OF 2023 IN CIVIL REVISION APPLICATION 646 OF 2012 Brijbhushan Chandrabali Shukla ...Applicant Versus Shri. Mahendra Yadav, S/o Lavjari S. Yadav ...Respondent ____________________________________

Digitally Ms. Panthi Desai i/b. Vashi & Associates for Applicant in CRA.

signed by Amol Amol Diliprao D. K. Shukla i/b. D. D. Singh for Respondent.

Diliprao Nawale Nawale Date:

2024.02.05 ____________________________________

13:05:08 +0530 CORAM : RAJESH S. PATIL, J.

DATED : 12 JANUARY 2024 JUDGMENT:

1. This Interim Application has been filed by Respondent/Landlord seeking a relief of monthly compensation payable @ Rs.70,000/- from passing of the Trial Court decree, by the Tenant, as per the ratio laid down by Supreme Court in Atma Ram Properties V/s. Federal Motors reported in (2005) 1 SCC 705.

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 vacated.

2.3. I would like to point out here that