F.A. No. 349 of 2011. Case: Bhupendra Kant Bhardwaj Vs Rameshchandra Goyal. High Court of Madhya Pradesh (India)

Case NumberF.A. No. 349 of 2011
CounselFor Appellant: N.K. Jain, Senior Advocate and Prashant Sharma and For Respondents: M.B. Mangal, Adv.
JudgesG.D. Saxena, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rule 5; Order XLI Rule 5(3); Delhi Rent Control Act, 1958 - Section 2; Madhya Pradesh Accommodation Control Act 1961 - Sections 12, 13, 13(1), 2(i)
Citation2014 (3) MPHT 441, 2014 (2) MPLJ 286
Judgement DateJanuary 27, 2014
CourtHigh Court of Madhya Pradesh (India)

Order:

G.D. Saxena, J.

1. Arguments were heard on I.A. No. 5149/2011 which is filed under Order 41, Rule 5 of the Code of Civil Procedure, 1908 by the appellants/tenants seeking stay of the operation of the impugned judgment and decree dated 3rd November, 2011 in a civil suit instituted by the plaintiff/respondent against appellants for eviction and arrears of rent with mesne profit. Learned counsel for the appellants contended that under the garb of the impugned decree, the plaintiff/respondent is bent upon to dispossess the appellants from the suit premises wherein they are running business and also residing in first floor of the building. It is submitted that if the operation of the impugned judgment and decree is not stayed, the appellants shall suffer irreparable loss which cannot be compensated in any manner and the purpose of filing the appeal would be frustrated. Hence, by the aforesaid application, the operation of the impugned judgment and decree is sought to be stayed till pendency of the appeal.

2. In response to the application, the respondent/plaintiff contented that the appellants are enjoying the constructed area about 3000 square feet for their business in busy commercial market in the town of Gwalior City. They are further utilising 3000 square feet area for their residence on the first floor of the building and 3000 square feet area of the roof of the building but in turn they are paying meagre amount of ` 350/- as monthly rent to the landlord/respondent. On the other hand, the landlord/respondent is paying ` 7999/- as property tax to the Municipal Corporation. It is submitted that as per market price of the area in question, at present rent of ` 25,000/- cannot be denied. Giving an example of one Shri Shyam Agrawal and Smt. Rekha Agrawal who are landlords of the adjoining building it is stated that they are getting ` 39,600/- as monthly rent from tenant Dena Bank. Therefore, it is prayed that the application under consideration in such circumstances is liable to be dismissed or in alternative the appellants may be directed to deposit `25,000/- as monthly mesne profits of the building till their possession over the rented premises. In support of his arguments, learned counsel placed reliance on the following judgments of Hon'ble Apex Court as well as this Court. They are:--

(i) Atma Ram Properties (P.) Ltd. vs. Federal Motors (P.) Ltd., (2005) 1 SCC 705, (ii) State of Maharashtra vs. M/s. Super Max International Pvt. Ltd. and ors., 2009 AIR SCW 7265, (iii) Shabbir Hussain and ors. vs. Ram Dayal and others, decided on 2011 (1) MPLJ 366.

3. Before going further into a discussion of the questions that arise, the relevant provisions of law may be summarised which are as follows:--

Order 41. Rule 5 Stay by Appellate Court

5. Stay by Appellate Court. -- (1) An appeal shall not operate as a stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only of an appeal having been preferred from the decree; but the Appellate Court may for sufficient cause order stay of execution of such decree.

[Explanation. -- An order by the Appellate Court for the stay of execution of the decree shall be effective from the date of the communication of such order to the Court of first instance, but an affidavit sworn by the appellant, based on his personal knowledge, stating that an order for the stay of execution of the decree has been made by the Appellate Court shall, pending the receipt from the Appellate Court of the order for the stay of execution or any order to the contrary, be acted upon by the Court of first instance.]

(2) Stay by Court which passed the decree. -- Where an application is made for stay of execution of an appealable decree before the expiration of the time allowed for appealing therefrom, the Court which passed the decree may on sufficient cause being shown order the execution to be stayed.

(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the Court making it is satisfied--

(a) that substantial loss may result to the party applying for stay of execution unless the order is made;

(b) that the application has been made without unreasonable delay; and

(c) that security has been given by the applicant for the due performance of such decree or order as may ultimately be binding upon him.

(4) [Subject to the provisions of sub-rule (3)], the Court may make an ex parte order for stay of execution pending the hearing of the application.

[(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of Rule 1, the Court shall not make an order staying the execution of the decree.]

4. Since the appellants/tenants have...

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