Mukul Mudgal, J.
1. With the consent of the learned Counsel for the parties, this civil revision petition is taken up for final hearing.
2. This civil revision petition has been preferred against the order of the learned ADJ dated 8th October 2004 in RCA No. 21 entitled as Kumar Pahilaj and Ors. v. Surjit Singh and Anr. by virtue of which order, the petitioners were held entitled to be paid damages/mesne profit from 30th April, 2004.
3. The brief facts of this case are as follows:-
a) The petitioner No. 1 on 1st November, 1977 let out a house bearing No. A-46, Kailash Colony, New Delhi (hereinafter referred to as the `suit property') comprising of a ground floor, first floor, barsati, garage, servant quarters, etc. to Sh. H. N. Pahilaj(since deceased), the father of the respondents at the rate of Rs. 4000/- per month excluding electricity, water and other charges. There was no written agreement between the parties.
b) On 12th May, 1989 the petitioner No. 1 duly served a notice upon Sh. H.N. Pahilaj for termination of tenancy but the premises were not handed over to the petitioner No. 1. On 3rd November, 1989 the petitioner duly served another notice under Section 106 of the Transfer of Property Act (hereinafter referred to as the TPA) on Mr. H.N. Pahilaj, who duly received the same. The notice was issued for termination of the tenancy and sought the handing over of the vacant and peaceful possession of the suit premises to the petitioner and also demanded damages/mesne profit at the rate of Rs. 30,000/- per month for the use of the suit premises after the termination of tenancy. Section 106 of the TPA reads as follows:
106. Duration of certain leases in absence of written contract or local usage ?'
...
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and [either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party], or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
c) Since on receiving notice, Mr. Pahilaj neither vacated the suit premises nor paid damages/mesne profit to the petitioner No. 1, on 15th December, 1989 the petitioner No. 1 filed a suit for possession of suit premises and recovery of the damages and mesne profit of the sum of Rs. 30,000/- per month from December, 1989 before the court of District Judge, Delhi, which was subsequently transferred to the court of ADJ, Delhi.
d) On 20th March, 1992 the petitioner filed an application before the court of ADJ under Order XII Rule 6 read with Order XXXIX Rule 10 and Section 151 of the Code of Civil Procedure for payment of arrears of damages w.e.f. September, 1989 at the admitted rate of Rs. 4,000/- per month which was dismissed.
e) On 30th October, 1996 the petitioner No. 1 preferred an FAO against the order dated 20th march, 1992 before this court. This court vide its order dated 30th October, 1996 allowed the FAO and held that the petitioner No. 1 being a co-owner was entitled to seek an ejectment of the respondents without impleading the other co-owners.
f) On 30th April, 2004 the learned Civil Judge passed a decree of possession of the suit premises in favor of the petitioners and assessed and awarded damages at the rate of Rs. 30,000/- per month in favor of the petitioners Along with an interest at the rate of 6% per annum from the date of the institution of the suit, i.e., 15th December, 1989 till the date of actual handing over of possession to the petitioner by the respondents.
g) On 1st June, 2004 the respondents filed a Regular Civil Appeal against the judgment and the decree of the Civil Judge dated 30th April, 2004 in the court of the Additional District Judge (ADJ), Delhi Along with an application under Order XXXXI Rule 5 read with Section 151 of the Code of Civil Procedure for the stay of the judgment and the decree. On 7th July, 2004 the petitioners moved an application praying, inter alia, for an order for deposit/payment of the decretal amount before hearing of the appeal filed by the appellant.
h) On 8th October, 2004 the learned ADJ by its impugned order held that the respondents are liable to deposit the damages mesne profits from the date of the impugned judgment on 30th April, 2004 and not from December, 1989 and also directed the respondents to deposit in the court a rent of Rs. 4,000/- per month till April, 2004 and damages/mesne profit at the rate of Rs. 30,000/- per month till October, 2004.
4. The learned senior counsel for the petitioner No. 1, Shri P.V. Kapur while challenging the order dated 8th October, 2004 by the present civil revision petition has submitted that the appellate Court was not justified in ordering that the assessed damages of Rs. 30,000/- per month be paid only from the trial Court's judgment dated 30th April, 2004. In the event of the appeal failing there was no safeguard provided for the petitioner No. 1 landlord for securing his interests fructified by the judgment of the civil judge and the amount of Rs. 30,000/- per month was payable with effect from December, 1989 as ordered by the trial Court.
5. He has also cited the judgment of the Hon'ble Supreme Court in Atma Ram Properties Pvt. Ltd. v. Federal Motors (P) Ltd. reported as : (2005)1SCC705 to contend that the judgment relied upon by the learned Civil Judge in Vashu Deo's case(supra) has been explained in the following terms:-
10. Shri Ranjit Kumar, the learned Senior Counsel for the respondent submitted that during the pendency of the appeal the appellant tenant cannot be directed to pay any amount over and above the amount of contractual rent unless and until the decree or order of eviction has achieved a finality because, in view of the protection of rent control legislation enjoyed by the tenant, he shall continue to remain a tenant and would not become a person in unlawful possession of the property until the decree has achieved a finality from the highest forum up to which the litigation is pursued. Reliance was placed on the decision of this Court in Chander Kali Bai v. Jagdish Singh Thakur : [1978]1SCR625 followed in Vashu Deo v. Balkishan : [2002]1SCR171 . This submission raises the following two issues: (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 is the tenant liable to pay rent 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?
11. Under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease under Section 111 of the Transfer of Property Act, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which he continues to occupy the premises, he becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant. In the case of Chander Kali Bai : [1978]1SCR625 the tenancy premises were situated in the State of Madhya Pradesh and the provisions of M.P. Accommodation Control Act, 1961 applied. The suit for eviction was filed on 8-3-1973 after serving a notice on the tenant terminating the contractual tenancy w.e.f. 31-12-1972. The suit came to be dismissed by the trial court but decreed in first appeal decided on 11-8-1975. One of the submissions made in this Court on behalf of the appellant tenant was that no damages from the date of termination of the contractual tenancy could be awarded; the damages could be awarded only from the date when an eviction decree was passed. This Court took into consideration the definition of tenant as contained in Section 2(i) of the M.P. Act which included any person continuing in possession after the termination of his tenancy but did not include any person against whom any order or decree for eviction has been made. The Court, persuaded by the said definition, held that a person continuing in possession of the accommodation even after the termination of his contractual tenancy is a tenant within the meaning of the M.P. Act and on such termination his possession does not become wrongful until and unless a decree for eviction is passed. However, the Court specifically rules that the tenant continuing in possession even after the passing of the decree became a wrongful occupant of the accommodation. In conclusion the Court held that the tenant was not liable to pay any damages or mesne profits for the period commencing from 1-1-1973 and ending on 10-8-1975 but the remained liable to pay damages or mesne profits from 11-8-1975 until the delivery of the vacant possession of the accommodation. During the course of its decision this Court referred to a decision of the Madhya Pradesh High Court in Kikabhai Abdul Hussain v. Kamlakar 1974 MPLJ 485 wherein the High Court had held that if a person continues to be in occupation after the termination of the contractual tenancy then on the passing of the decree for eviction he becomes a wrongful occupant of the accommodation since the date of termination. This Court opined that what was held by the Madhya Pradesh High Court seemed to be a theory akin to the theory of relation backon the reasoning that on the passing of a decree for eviction, the tenant's possession would become unlawful not from the date of the decree but from the date of the termination of the contractual tenancy itself. It is noteworthy that this Court has not disapproved the decision of the Madhya Pradesh High Court in Kikabhai Abdul Hussain case 1974 MPLJ 485 but distinguished it by observing that the law laid down in Kikabhai Abdul Hussain case 1974 MPLJ 485 was not applicable to the case before it in view of the definition of tenant as contained in the M.P. Act and the provisions which came up for consideration of the High Court in Kikabhai Abdul Hussain case 1974 MPLJ 485 were different.(underlining supplied)
6. In view of the position of law laid down in the aforesaid judgment in Atma Ram properties' case (supra), I am of the view that the provisions of the TPA and not the provisions of the Delhi Rent Control Act, 1956 are applicable to the present case in view of the rent being Rs. 4,000/- per month. Once the tenancy comes to an end by the determination of lease under Section 111 of the TPA, the right of the tenant to continue in possession of the premises comes to an end as laid down in the above judgment. For the period subsequent to the termination of the tenancy for which he continues to occupy the premises, the erstwhile tenant becomes liable to pay the damages for use and occupation at the rate at which the landlord could have let out the premises upon vacation by the tenant.
7. Thus in my view, the petitioners are entitled to secure the damages/mesne profit from the respondents from the date of the filing of the suit, i.e., 15th December, 1989 and not from the date of the passing of the decree, i.e., 30th April, 2004. Consequently the order dated 8th October, 2004 passed by the learned ADJ, Delhi in RCA No. 21/2004 entitled Kumar Pahilaj and Ors. v. Surjeet Singh and Anr.? is set aside. Undoubtedly the appeal of the respondents against the order of the learned Civil Judge dated 30th April, 2004 is pending in the appellate Court of the learned Additional District Judge and the validity of the findings of the learned Civil Judge are in question. Thus on the one hand there is a landlord armed with a decree of eviction and assessment of damages at Rs. 30,000/- per month from the date of the institution of the suit which is not governed by the Rent Act but by the general law, i.e., TPA and on the other hand there is a tenant whose challenge in general to the Civil Judge's order of eviction has yet to be heard. In these circumstances it would be necessary to balance the equities. Consequently half of the decretal amount at the rate of Rs. 30,000/- per month from December, 1989 up to date shall be deposited in the Appellate Court within four weeks and the balance half of the decretal amount shall be secured by furnishing a security to the satisfaction of the Appellate Court. The deposit at this rate of Rs. 30,000/- per month will continue to be made every month henceforth during the pendency of the appeal. Out of the deposited amount, a sum of Rs. 4,000/- per month from 15th December, 1989 up to date shall be paid to the petitioners and be continued to be paid to the petitioners per month.
8. In view of the above findings, the CM(M) stands allowed and disposed of accordingly. All the pending applications also stand disposed of.