1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.2878/2007 (Amar Nath Anand Versus Bhupendra Singh) Date of Order :: 1st September,2009 PRESENT HON'BLE SHRI JUSTICE NARENDRA KUMAR JAIN Shri Suresh Sahni, counsel for the petitioner Shri Ashwani Chobisa, counsel for the respondent BY THE COURT: At the request of learned counsel for the parties, the arguments were heard and writ petition is being disposed of finally. The tenant-petitioner has preferred this writ petition challenging the impugned order dated 16th January, 2007 passed by the District & Sessions Judge, Kota in Civil Regular Appeal No. 9/2007, whereby while disposing of the stay application of the petitioner, he passed an order that order of eviction against the petitioner will remain stayed during the pendency of the appeal, provided the petitioner deposits the mesne- profit @ Rs. 1,000/- per month with effect from 1st January, 2007. The submission of learned counsel for the petitioner is that impugned order passed by 2 the appellate court is contrary to the provisions of Order 41 Rule 5 CPC as no where it is stipulated in Rule 5 of Order 41 CPC to increase the amount of mesne-profit from the amount of mesne-profit fixed by the trial court, therefore, the impugned order is liable to be set-aside. The learned counsel for the respondent defended the impugned order and prayed for dismissal of writ petition. I have considered the submissions of learned counsel for the parties in the light of impugned order passed by the trial court. It appears that a decree of eviction was passed against the petitioner in respect of rented premise by the trial court. Being aggrieved with the same, an appeal was preferred by the petitioner along-with stay application. The appellate court passed the impugned order on the stay application filed by the petitioner. The appeal is still pending before the first appellate court. The Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., (2005) 1 SCC 705, considered the jurisdiction of the appellate court while passing order of stay under Order 41 Rule 5 of 3 the CPC and held that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of the CPC on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour, in the event of the appeal being dismissed. The Hon'ble Apex Court in the above referred case held 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 insofar as those proceedings are concerned. Such terms, needless to say, shall be reasonable. (2) In case of premises governed by 4 the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (1) 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 later date. 5 The Hon'ble Supreme Court again in Anderson Wright & Company Vs. Amar Nath Roy, 2005 DNJ (SC) 562, while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra), reiterated the same proposition of law. The above referred judgments of the Hon'ble Supreme Court make it clear that appellate court has jurisdiction to put the applicant under Order 41 Rule 5, on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour. In view of above discussions, I find that the first appellate court has passed the impugned order in accordance with law laid down by the Hon'ble Supreme Court and I do not find any jurisdictional error in it. Apart-from above, it is also a settled law that the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court final. 6 In Babhutmal Raichand Oswal Vs. Laxmibai R. Tarte and Another – AIR 1975 SC 1297, the Hon'ble Apex Court, while considering the scope of Article 227 of the Constitution of India, held that the power of superintendence of High Court under Article 227 of the Constitution of India being extraordinary is to be exercised most sparingly and only in appropriate cases. This power, as in the case of certiorari jurisdiction, cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal. The High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court, cannot, while exercising jurisdiction under Article 227 of the Constitution of India, interfere with findings of fact recorded by the subordinate court or tribunal. Its function is limited to seeing that the subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by re- appreciating evidence. 7 In view of above discussions, I do not find any merit in this writ petition and the same is, accordingly, dismissed with no order as to costs. (NARENDRA KUMAR JAIN), J. DK/