Niyaz Ahmad Khan vs Mahmood Rahmat Ullah Khan & Anr

3. While admitting the said writ petition filed by the landlords, a learned Single Judge of the Allahabad High Court issued an interim direction dated 17.10.2006 to the tenant (appellate herein) to pay rent at the rate of Rs.12,050/- per month with effect from October, 2006 with a further direction that if the rent at that rate is not paid for two consecutive months, the landlord could evict the tenant by coercive process with the aid of police. The learned Judge has justified his interim direction on the ground that in exercise of writ jurisdiction the High Court can reasonably increase the rent so as to bring it on par with the prevailing market rentals. The increased rent was assessed in the following manner :

8. We should however note the distinction between cases where a writ petition is filed by the tenant challenging the order of eviction and seeking 6 stay of execution thereof, and cases where a writ petition is filed by the landlord challenging the rejection of a petition for eviction. What we have stated above is with reference to writ petitions filed by landlords. In writ petitions filed by tenants, while granting stay of execution of the order of eviction pending disposal of writ petition, the High Court has the discretion to impose reasonable conditions to safeguard the interests of the landlord. But even in such cases the High Court cannot obviously impose conditions which are ex facie arbitrary and oppressive thereby making the order of stay illusory. When a tenant files a writ petition challenging the order of eviction, the High Court may reject the writ petition if it finds no merit in the case of the tenant; or in some cases, the High Court may admit the writ petition but refuse to grant stay of execution, in which event, the tenant may be evicted, but can claim restoration of possession if he ultimately succeeds in the writ petition; or in some cases, the High Court finding the case fit for admission, may grant stay of eviction, with or without conditions, so that status quo is maintained till the matter is decided. Where the High Court chooses to impose any conditions in regard to stay, such conditions should not be unreasonable or oppressive or in terrorem. Adopting some arbitrary figure as prevailing market rent without any basis and directing the tenant to pay absurdly high rent would be considered oppressive and unreasonable 7 even when such direction is issued as a condition for stay of eviction. High Court should desist from doing so.

9. To sum up, in writ petitions by landlord against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition. This again is subject to two limitations. First, the condition should be reasonable. Second, there should not be any bar in the respective State rent control legislation in regard to such increase in rent. Be that as it may.

10. The appeal is allowed and the order dated 17.10.2006 passed by the High Court directing the tenant to pay rent at the rate of Rs.12050/- per month from October, 2006 is set aside.