1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 2291 OF 2007 IN FIRST APPEAL NO. 1407 OF 2005 Maxie Jerome Cabral ... Applicant v/s 1. Alex Christopher D’Souza & anr. ... Respondents Mr.V.R.Walavalkar i/by S.R.Bhalekar for the applicant. Nobody present for the respondents. CORAM: SMT.NISHITA MHATRE, J. DATED: 24TH SEPTEMBER, 2009 P.C.: 1. The civil application has been filed by the original plaintiff, the respondent in the appeal. The applicant has succeeded in the suit which has been decreed against the respondent. The decree has been stayed by this Court while admitting the appeal. The applicant has therefore approached this Court by the civil application for a direction against the respondents to deposit Rs.10,000/- per month in this Court pending the hearing and final disposal of the 2 appeal as the respondents are in use and occupation of the suit premises. 2. The respondents though served are not represented. 3. Mr.Walawalkar, the learned advocate appearing for the applicant submits that it is now well settled that when a party is permitted to continue in suit premises after a decree of eviction has been passed because of the stay granted by the appellate Court, that party must be put to terms as he is not entitled to continue in such premises free of costs. The learned counsel relies on the judgment of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v/s Federal Motors (P) Ltd., reported in (2005) 1 SCC 705. The view of the Supreme Court in the case of Atma Ram (supra) has been reiterated in the case of State of Maharashtra & anr. v/s. M/s. Super Max International Pvt. Ltd., delivered in Civil Appeal No. 5835 of 2009. The learned counsel points out that there is a valuation report annexed at Exh.B to the civil application which has been issued by the applicant’s Architect on 1.1.2007. This valuation report indicates that the appropriate compensation for a flat admeasuring 500 sq. ft. should be Rs.10,000/- per month. It appears that, from 1.9.1995 to 29.3.2005, the appellants have deposited certain 3 amounts at the rate of Rs.200/- per month. However, the amounts have been deposited irregularly. The applicant has withdrawn these amounts from the Court. The learned counsel therefore submits that the appellants/respondents in this civil application should be directed to deposit an amount of Rs.10,000/- per month as indicated by the Architect. 4. In the case of Atma Ram (supra) case, the Supreme Court was considering a case wherein in the year 1992 the landlord initiated eviction proceedings against the tenant. The Trial Court decreed the suit and directed that the tenant should be evicted. The tenant preferred an appeal in the year 2001. The appellate authority stayed the decree subject to the condition that the tenant deposited Rs.15,000/- per month in Court. The questions which arose before the Supreme Court were - (i) in respect of premises enjoying the protection of rent control legislation, when does the tenancy terminate; and (ii) up to what point of time the tenant is liable to pay rent and at the contractual rate and when does he become liable to pay compensation for use and occupation of the tenancy premises unbound by the contractual rate of rent to the landlord ? The Supreme Court while allowing the appeal held thus - 4 “18. 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 the 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. (I) Ltd. v/s. 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 the 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. 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.” 5. In the case of State of Maharashtra & anr., (supra), a Bench of three Hon’ble Judges of the Supreme Court has 5 reiterated the view taken in Atma Ram’s case (supra). Thus, there can be no dispute that the appellants/ respondents herein cannot continue in the suit premises without paying any compensation. The amount of Rs.200/- which was directed to be paid from the year 1995 is, in my view, paltry taking into consideration the value of the property today. The valuer has fixed the compensation at Rs.10,000/- per month considering that they are residential premises on the ground floor in the building situated at 94, Veer Ghanekar Marg, (Azad Road), Vile Parle (East), Mumbai -400 057. The architect has considered that the rate payable would be Rs.222/- per month per square meter i.e. Rs.20.62 ps. per sq. ft. in the year 2006-07 and has therefore fixed the compensation at Rs.10,000/- per month. He has also stated that due to increase in the municipal taxes and other outgoings, the maintenance charges could increase. 6. Considering this valuation report of the architect and the fact that there is no reply filed in this Court by the respondents, in my opinion, the submission that there must be an increase in the compensation payable to the applicant, is acceptable. However, in my view, considering the facts and circumstances of the present case, the amount fixed at Rs.10,000/- would be too steep. The compensation which 6 ought to be paid to the applicant, should be Rs.5000/- per month. 7. In view of this, the civil application is allowed. 8. The respondents shall deposit an amount of Rs.5000/- per month in this Court pending the disposal of the appeal. The amount shall be deposited from 1.4.2007. The arrears payable from 1.4.2007 till today shall be deposited within eight weeks from today. Any default in complying with the direction to deposit the arrears would mean that the stay granted by this Court would be vacated. 9. The amount shall be deposited on or before 10th of each month. Further, any two consecutive defaults in the monthly deposits being made, shall mean that the stay is vacated. ..... 7