IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CMPMO No. 23 of 2010 Judgment reserved on 22.2.2010 Date of decision : 2.3.2010 ____________________________________________________ Padma Devi and another …Petitioners. Versus Karam Chand and Ors. …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the petitioners : Mr. Ajay Kumar Dhiman Advocate. For the Respondents : Mr. G.C. Gupta, Senior Advocate with Mr. Pawan Sharma, Advocate, for respondents No.1 to 4. None for other respondents. Kuldip Singh, Judge The petitioners have suffered ejectment vide order dated 12.1.2009 passed by learned Rent Controller, Shimla in Rent Application No.82/2 of 1999. They had filed appeal against order dated 12.1.2009. In the appeal they had filed an application for stay of execution of order dated 12.1.2009. 2. The respondents/landlords had opposed the stay of the execution of the ejectment order and submitted that in case the operation of the ejectment is to be stayed, the petitioners be put to terms. The learned Appellate Authority (II), Shimla in CMA No.58-S/6 ______________________ ¹ Whether reporters of Local Papers may be allowed to see the Judgment ? 2 of 2009 in main Case No.10-S/13(b) of 2009 vide order dated 31.12.2009 has stayed the ejectment order dated 12.1.2009 on the grounds that petitioners shall deposit rent due in the Court within one month and shall further continue to deposit the contractual rent every month. In addition, they shall deposit a sum of Rs.10,000/- per month w.e.f. 1.2.2009 as user and occupation charges. The user and occupation charges upto 31.12.2009 shall be paid on or before 28.2.2009 and the user and occupation charges becoming due after 1.1.2010 shall be deposited regularly in the Court. The landlords shall not be entitled to withdraw these users and occupation charges from the Court and they shall be entitled to withdraw the same only if the appeal of the tenants fails and the landlords succeed. This order dated 31.12 2009 has been assailed by petitioners under Article 227 of the Constitution of India on the ground that impugned order is wrong, illegal and contrary to law. The order is based upon surmises and conjectures. It has been submitted that the income from the shop is Rs.8,000/- and it is not possible for the petitioners to deposit Rs.10,000/- per month. The rent of the premises is amounting of Rs.34/- per month. 3. The learned counsel for the respondents No.1 to 4 has supported the impugned order. He has relied Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705, Pabbathi Venkataramaiah Chetty vs. Pabbathi N. Rathnamaiah Chetty and others (2007) 3 SCC 151, Pradeep Kumar vs. Hajari lal (2008) 3 SCC 299 and State of Maharashtra and another vs. Super Max 3 International Private Limited and others (2009) 9 SCC 772 in support of his submissions. 4. The learned Appellate Authority in the impugned order has observed that the rent of the building in question is nominal i.e. Rs.34/- per month. The building is old but keeping in view of the locality in which the building is situated it is difficult to get such building on rent even at the rate of Rs.25,000/- per month. It has been observed that the valuation report filed by respondents on the record shows that present market value of the building in question is more than Rs.49,000/- per month. 5. The petitioners have not assailed the impugned order fixing the use and occupation charges at the rate of Rs.10,000/- per month on the grounds that there is no market rate of rent as fixed by learned Appellate Authority in the area where the premises in question is situated. The petitioners have assailed use and occupation charges at the rate of Rs.10,000/- per month on the grounds that as against their income of Rs.8,000/- per month from the shop they cannot pay use and occupation charges at the rate of Rs.10,000/- per month. On this ground impugned order cannot be said to be illegal. In Atma Ram Properties (P) Ltd. (supra), the Supreme Court has approved the terms of payment of rent at Rs.15,000/- per month as charges for use and occupation during the pendency of the appeal against rent of Rs.371.90. In State of Maharashtra (supra) the rent of the premises was Rs.5236.58 besides water charges at the rate of Rs.515.35 per month. The High Court stayed the execution of the decree subject to the condition that appellants would deposit Rs. 5,40,000/- every month 4 from the date of the decree passed by the trial Court. The High Court did not allow the landlords to take away the money. The Supreme Court has held that in an appeal or revision preferred by a tenant against an order or decree of an eviction passed under the Rent Act it is open to the appellate or the Revisional Court to stay the execution of the order of the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent but while fixing the amount the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount. The Supreme Court ultimately upheld the order of the High Court. 6. The Appellate Authority while fixing the use and occupation charges has relied valuation report. It is not the case of the petitioner that use and occupation charges fixed by the Appellate Authority were fanciful or punitive or valuation report is wrong. No specific challenge has been thrown to valuation report. In view of the Atma Ram Properties (P) Ltd. and State of Maharashtra (supra), there is no merit in the petition which is accordingly dismissed. No costs. 7. In view of disposal of main petition the CMP No.47 of 2010 is rendered infructuous. Interim order dated 18.1.2010 stands vacated. The parties through counsel are directed to appear before Appellate Authority (II) Shimla on 15.3.2010. The record be sent to Appellate Authority immediately so as to reach before the date fixed. March 2, 2010 (Kuldip Singh) (sks) Judge.