1 WP 3169 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3169 OF 2011 Mrs.Jayalakshmi Daulatrai Valia ...Petitioner Vs. Vasantkumar Nathubhai Manek and Ors. ...Respondents ----- Mr.Haresh Mansukhani for Petitioner Ms. Snhal Ratnakar for Respondent nos.1 to 3 ----- CORAM: V.M. KANADE J. DATED: 5th May, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Petitioner and Respondents. 2. The Petitioner is the original tenant and the Respondents are the original landlords. The Respondents landlords filed the suit for eviction on various grounds and the Small Causes Court was pleased to pass the judgment and decree in favour of the Respondents herein. Against this order,the Petitioner- tenant preferred an appeal before the Appellate Bench of Small Causes Court. While admitting the appeal as a condition for grant of stay to the judgment and decree of the Trial Court, the Appellate Court has directed the 2 WP 3169 of 2011 Petitioner to pay an amount of Rs.30,000/- p.m. a compensation during the pendency of the appeal to the Respondents-landlords. 3. It is submitted that the said amount which is fixed by the Lower Appellate Court is excessive. It is submitted that the Petitioner is a widow and though the Trial Court did not accept the valuation report which was filed by the Respondents-landlord, the Lower Appellate court was pleased to consider the financial position of the Petitioner's daughter in law. It is submitted that reliance was placed on isolated electricity bills which shows that the electricity consumed was to the tune of Rs.14,000/- p.m. It is submitted that the Petitioner has inherited the shares which were invested by her husband in Reliance Company and the figure of Rs.50 lakhs is the valuation of the shares and does not represent the income of the Petitioner. It is, therefore, submitted that the Lower Appellate Court had arrived at the figure of Rs.30,000/- on material which is not germane for the purpose of deciding the application for grant of stay. 4. On the other hand, the learned counsel for the Respondents has strenuously urged that the Petitioner is residing along with her daughter-in-law and there are 3 WP 3169 of 2011 four air conditions in the flat and her daughter-in-law has two cars in her name and there is an additional flat which is owned by her daughter-in-;aw which is reflected from the registration certificate of the flat owned by the daughter in law. It is submitted that the valuer has taken into consideration various agreement of leave and licenses executed by other parties in the same area and has observed that the rate of compensation which can be received from the said flat was about Rs.1,09,000/- 5. After having heard both the counsel at length, in my view, it would be appropriate if the said amount of compensation is reduced from Rs.30,000/- to Rs.20,000/- p.m. and at the same time the hearing of the appeal is expedited for the following reasons. 6. Firstly, the Respondents-landlords has already filed an application for fixation of mesne profits as directed by the Trial Court. The said inquiry has not been stayed by the Lower Appellate Court. Ultimately, if the landlords succeed in the said proceedings, the mesne profits which are determined by the Trial Court after evidence is lead, would be recoverable and whatever compensation which is fixed by the Appellate Court during the pendency of the appeal would be adjusted against the final outcome 4 WP 3169 of 2011 of the inquiry for mesne profits. 7. Secondly, the Lower Appellate Court has not accepted the valuation report, but has taken into consideration the various factors while fixing the compensation. It has to be remember that while granting stay to the operation of the judgment and decree of the Trial Court, the Appellate court has a right to grant stay subject to certain terms and conditions. The ratio of the judgment of the Apex Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. [(2005) 1 Supreme Court Cases 705] and State of Maharashtra vs. Super Max International Pvt. Ltd.[AIR 2010 Supreme Court 722], if it is considered, it reveals that in each and every case, it is not necessary for the Lower Appellate Court to direct the compensation to be paid at the market rate. The Apex Court in the case of Atma Ram Properties (P) Ltd. (supra), after taking into consideration the provisions of Order 41 Rule 5 and the provisions of the Rent Act came to the conclusion in paragraph 9 that: “9. Dispossession, during the pendency of an appeal of a party in possession, is generally considered to be “substantial loss” to the party applying for stay of execution within the menaing of clause (a) of sub-rule (3) of Rule 5 of 5 WP 3169 of 2011 Order 41 of the Code. Clause © of the same provision mandates security for the due performance of the decree or order as may ultimately be passed being furnished by the applicant to stay as a condition precedent to the grant of order of stay. However, this is not the only condition which the appellate court can impose. The power to grant stay is discretionary and flows from the jurisdiction conferred on an appellate court which is equitable in nature. To secure an order of stay merely by preferring an appeal is not a statutory right conferred on the appellant. So also, an appellate court is not ordained to grant an order of stay merely because an appeal has been preferred and an application for an order of stay has been made. Therefore, an applicant for order of stay must do equity for seeking equity. Depending on the facts and circumstances of a given case, an appellate court, while passing an order of stay, may put the parties on such terms of enforcement whereof would satisfy the demand for justice of the party found successful at the end of the appeal. In South Eastern Coalfields ltd. v. 6 WP 3169 of 2011 State of M.P.1 this court while dealing with interim orders granted in favour of any party to litigation for the purpose of extending protection to it, effective during the pendency of the proceedings, has held that such interim orders, passed at an interim stage, stand reversed in the event of the final decision going against the party successful in securing interim orders in its favour; and the successful party at the end would be justified in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery to it of benefit earned by the opposite party under the interim order of the High court, or (b) compensation for what it has lost, and to grant such relief is the inherent jurisdiction of the court. In our opinion, while granting an order of stay under Order 41 Rule 5 CPC, the appellate court does have jurisdiction to put the party seeking stay order on such terms as would reasonably compensate the party successful at the end of the appeal insofar as those proceedings are concerned. Thus, for example, 1 1(2003) 8 SCC 648 7 WP 3169 of 2011 though a decree for payment of money is not ordinarily stayed by the appellate court, yet, it it exercises its jurisdiction to grant stay in an exceptional case it may direct the appellant to make payment of the decretal amount with interest as a condition precedent to the grant of stay, though the decree under appeal does not make provision for payment of interest by the judgment-debtor to the decree-holder. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record- all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corpn.2 (SCC p.574, para 350 “Common sense which is a cluster of life's experiences, is often more dependable than the rival facts presented by warring litigants.” In State of Maharashtra vs. Super Max International Pvt. Ltd.(supra) , the Three Judges Bench of the Apex 2 2(1985) 3 SCC 545 8 WP 3169 of 2011 Court has accepted the ratio laid down in Atma Ram's case. Therefore, what has to be seen is that while granting stay to the judgment and decree of the Trial Court, the Appellate Court should fix a reasonable amount and also take into consideration the other aspects viz. the financial condition of the tenant. If in each and every case the Appellate Court directs the tenant to pay compensation at the market rate, in that event, many of the tenants again because of financial constraints would not be in a position to pay the amount and the landlord would then on the ground of non- payment of compensation, would get the decree executed, which in turn, would defeat the very purpose for which the protection was afforded to the tenant in the Rent Control Act, the Court has to take into consideration various factors while imposing a condition of payment of compensation. In each and every case, therefore, it will not be necessary to direct the tenant to pay compensation at the market rate. Therefore, in my view, taking into consideration the fact that the Petitioner is a widow and is financially dependent on her daughter-in- law, it would be appropriate if the said amount is reduced from Rs.30,000/- to Rs.20,000/-. 8. The order passed by the Lower Appellate Court is, accordingly, modified. The compensation is reduced from 9 WP 3169 of 2011 Rs.30,000/- to Rs.20,000/-. The hearing of the appeal is expedited. The Appellate Court shall decide the appeal as expeditiously as possible and in any case, within one year from today. The hearing of the inquiry under Order 20 Rule 12 of Mesne Profits is also expedited. The time to deposit the amount of compensation at the rate of Rs.20,000/- from the date of filing of the appeal is extended by eight weeks from today. Writ petition is, accordingly, disposed of. (V.M. KANADE J.)