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Ganga Prasad v. M/s Hanif Opticians And Others - WRIT - A No. 63114 of 2005 [2005] RD-AH 3495 (24 September 2005)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Court No. 51

Civil Misc. Writ Petition No. 63114 of 2005

Ganga Prasad..Vs...M/s Hanif Opticians & others


Hon'ble S.U.Khan, J.

Landlord-petitioner filed release application against the tenant-respondents u/s 21 of U.P. Act No. 13 of 1972 on the ground of bonafie need. The release application was allowed. Against the said order, tenant-respondents have filed Rent Appeal No. 7 of 2000 which is pending before Addl. District Judge, Court No.1, Kanpur Nagar.

According to the landlord-petitioner disposal of the appeal is being delayed by the tenant-appellants through different devices. Limited stay order was granted by the appellate Court, which expired, thereafter, it was revived and extended.

Through this writ petition a prayer has been made for issuing directions to the lower appellate Court not to grant any adjournment in appeal and decide the appeal within one month.

If a tenant has got blanket stay order in appeal or revision then he tries to unnecessarily delay the disposal of the appeal or revision so that he can enjoy the possession of the property in dispute. Even if condition of payment of existing rent is imposed alongwith the stay order, in cases of old tenancies where the rent is nominal, the condition becomes useless and meaningless. The Supreme Court in a recent authority reported in Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd.-(2005) 1 Supreme Court Cases 705 has laid down that while granting stay against eviction to the tenant the Appellate Court or Revisional Court shall impose reasonable condition. In the said case the rent was Rs.371.90 per month. The Rent Controller while staying dispossession of the tenant had imposed the condition of payment of Rs. 15,000/- per month. The High Court had reversed the said order of the Rent Controller. The Supreme Court set aside the order of the High Court and approved the order of Rent Controller. Para 18 of the said authority is quoted below:-

" That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of he decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. Ltd. V. Sahi Oretrans (P) Ltd. This court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for he court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property"

Accordingly it is directed that in revisions under Section 25 Provincial Small Causes Court Act or appeals under Section 22 of U.P.Act No. 13 of 1972 District Judge or Addl. District Judge while granting stay order shall impose condition of payment of reasonable amount which may be about 50% of the current rent (i.e. rent on which building in dispute may be let out at the time of grant of stay order. In this regard no detailed inquiry need be made. Mere guess work based on common sense may do). The tenants enjoying the tenanted property on highly inadequate rent tend to prolong the disposal of the appeal or revision for continuing their possession without payment of proper rent/damages for use and occupation. If the stay against eviction is granted on the condition of monthly payment of reasonable amount, this practice can sufficiently be checked.

In the instant case it is directed that if on the next date which is said to be 1.10.2005 the tenant-respondents seek adjournment in appeal in any manner ( either by filing adjournment application or any other application e.g. for appointment of Advocate Commissioner or for adducing additional evidence ) then the stay order shall be made conditional and it shall be directed to remain in operation on payment of Rs.1000/- per month as rent/damage for use and occupation with effect from October, 2005 onward.

The lower appellate court shall make all efforts to decide the appeal expeditiously. In case the appeal is not decided within six months, petitioner may file another petition for specific direction in respect of disposal of the appeal.

The writ petition is accordingly disposed of.

Registrar General is directed to send copy of this judgment to all the District Judges for circulation to all the Additional District Judges.

Dt: 24.9.05



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