Narendra Kumar Jain, J.
1. Heard learned Counsel for the parties.
2. An important question of law, which arises for consideration in the present case, is as to whether an application under Section 151 of the Code of Civil Procedure, 1908, (for short, 'C.P.C.') on behalf of the respondent/decree-holder is maintainable for directing the appellants to make the payment of mesne profit/compensation as per prevalent market rate of monthly rent of the rented shop during the pendency of the second appeal for hearing?
3. The plaintiff-respondent filed a suit for eviction in respect of the disputed shop against the defendant-appellants, which was decreed by the lower court as well as the lower appellate court, both, on the ground of personal bona fide necessity as well as default in making the payment of monthly rent. However, in presence of both the parties, this Court vide order dated 1.12.2005 admitted the second appeal and formulated the substantial questions of law and also stayed the further proceedings in the execution case arising from the impugned judgment and decree till disposal of the appeal. Thereafter the respondent filed the present application under Section 151 of the C.P.C. on 7.8.2006 for payment of mesne profit/compensation to him during the pendency of the second appeal. The appellant has filed his reply to the above application.
4. Learned Counsel for the defendant-appellants contended that the order admitting the appeal as well as staying the eviction decree was passed in presence of both the parties and no order was passed regarding payment of mesne profit compensation during the pendency of the second appeal, therefore, the application under Section 151 of the C.P.C. is not maintainable and the same is liable to be rejected.
5. I have heard and considered the submissions of learned Counsel for both the parties.
6. The order dated 1.12.2005 makes it clear that this Court while admitting the second appeal stayed the further proceedings in the execution case arising from the impugned judgment and decree, during pendency of the appeal. It is clear from the order itself that there is no reference of any prayer on behalf of the respondent for payment of mesne profit/compensation, nor any order was passed by this Court having accepted or rejecting the same.
7. So far as power to the appellate court under Order 41 Rule 5 of the C.P.C, while passing the order of stay under Order 41 Rule 5 of the C.P.C, is concerned, it is settled by the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Limited v. Federal Motors (P) Limited : (2005)1SCC705 , and Anderson Wright and Co. v. Amar Nath Roy 2005 DNJ (SC) 562, that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of the C.P.C, 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.
8. Here is the case where at the time of exercising the powers under Order 41 Rule 5 of the C.P.C, no such prayer was made on behalf of the landlord-decree-holder that in case the execution of the eviction decree is stayed by this Court then the tenant-appellants be directed to pay the mesne profit/compensation as per prevalent market rate of the monthly rent to compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order. The order of this Court dated 1.12.2005 further shows that no adverse order was passed to the effect that mesne profit/compensation will not be paid to the plaintiff respondent during the pendency of the appeal.
9. As per the provisions of Section 151 of the C.P.C., it is clear that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make stay order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. The Section is thus declaratory in nature. It does not confer inherent powers in a court but declares that such powers have been vested in every court of civil jurisdiction. It further states that no provision of the Code should be taken or deemed to limit or otherwise affect these inherent powers. These powers are inherent in the Court by virtue of its duty to do full and complete justice between the parties before it. Such powers are in addition to the powers specifically and expressly conferred on the Court by the Code. They are thus complementary and the Court can exercise them when exercise thereof is not in conflict with express provisions in the Code or against the intention of the Legislature.
10. The Hon'ble Supreme Court in Jet Ply Wood (P) Limited v. Madhukar Nowlakha : AIR2006SC1260 , considered the provisions of Section 151 of the C.P.C. and held that while invoking inherent powers, the court can pass any order for doing real and substantial justice between the parties. The Hon'ble Apex Court held as under:
25... The principle is well established that when the Code of Civil Procedure is silent regarding a procedural aspect, the inherent power of the court can come to its aid to act ex debito justitiae for doing real and substantial justice between the parties. This Court had occasion to observe in Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal as : AIR1962SC527 as follows : (SCR P. 459).It is well settled that the provisions of the Code are not exhaustive for the simple reason that the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them.
11. In view of the above settled position of law in respect of Section 151 of the C.P.C. it is clear that for doing real and substantial justice between the parties, inherent powers to the Court under Section 151 of the C.P.C. can be exercised.
12. In the present case, this Court, while staying the eviction decree under Order 41 Rule 5 of the C.P.C. did not pass any order for payment of mesne profit/compensation to the decree-holder but such a prayer was neither made nor rejected on that day, which is clear from the order dated 1.12.2005 itself. Therefore, in case any order of mesne profit/compensation is passed then it will be in continuation to the earlier order dated 1.12.2005 itself. The disputed shop was let out long back and since 20.3.1979 the tenant-appellants are making the payment of monthly rent of the disputed shop at the rate of Rs. 50/-. The suit for eviction has already been decreed by both the courts below on the ground of personal bona-fine necessity as well as default in making the payment of monthly rent. However, this Court was of the opinion that substantial questions of law do arise in the present case and consequently admitted the second appeal and formulated the substantial questions of law of arise in the present case and consequently admitted the second appeal and formulated the substantial questions of law, and also passed stay on eviction of the tenant-appellants from the disputed shop. When an order of stay against eviction decree has been passed in favour of the appellants and the appeal is not going to be decided in near future looking to the long pendency of old second appeals, it will be just and proper and also for the ends of justice that an order for payment of mesne profit/compensation should also be passed.
13. In these circumstances, I am of the firm view that the appellate court has jurisdiction to pass an order for payment of mesne profit/compensation as per prevalent market rate of monthly rent while granting stay order against the eviction decree under Order 41 Rule 5 of the C.P.C. and in case the said order has not been passed or the prayer in this regard has not been rejected then the same can be passed subsequently while exercising the powers under Section 151 of the C.P.C. In this view of the matter, it is held that the application filed by the respondent under Section 151 of the C.P.C. is maintainable and the order of mesne profit/compensation can be passed directing the tenantappellants to make the payment of the same to the respondent during pendency of this second appeal.
14. Now, I proceed to determine the amount of mesne profit/compensation to be paid by the appellants to the respondent. In this connection, the learned Counsel for the respondent has mentioned in his application that the suit shop is situated in the 'Sarrafa Bazar', which is the main market of Alwar city and the area of suit premises is approximately 150 square feet, and in case the suit shop would have been vacated and the same would have been let out then it would have fetched monthly rent at the rate of Rs. 5000/- (Rupees five thousand). It is further contended that for last more than 27 years i.e. from 20.3.1979 the appellants are paying a meager amount of monthly rent at the rate of Rs. 50/- only. Therefore, a reasonable amount of mesne profit/compensation as contended by him, may be ordered to be paid during the pendency of this second appeal.
15. The learned Counsel for the appellants has filed reply to the application of the respondent wherein he has mentioned that prevalent market rate of monthly rent of the rented shop is not more than Rs. 100/- or Rs. 150/-, therefore, the mesne profit/compensation may be fixed as per this rate. However, during the course of arguments, the learned Counsel for the appellant, on instructions of the appellant, who is present in person, contended that mesne profit of the rented shop be fixed at the rate of Rs. 500/- per month.
16. The Hon'ble Supreme Court in Atma Ram Properties (P) Limited v. Federal Motors (P) Limited (supra) 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 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 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 proceeding 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 latter date.
17. The Hon'ble Supreme Court again in Anderson Wright and Co. v. Amar Nath Roy 2005 DNJ (SC) 562 (supra).while considering its earlier judgment in Atma Ram Properties (P) Limited's case (supra) reiterated the same proposition of law.
18. This Court in Madan Bansal v. Ramnarayan Sharma, RLR 2006(1) 733 : RLW 2006(2) 1448, considered the similar point and observed as under:.the criteria for admission of the appeal are altogether different than what adopted at the time of hearing of the appeal the appeal is admitted by the First Appellate Court being a statutory appeal or second appeal as substantial question of law arises then it does not mean that it will be allowed finally. Once appeal is admitted, then it is commonly known, that it goes for hearing in Due Course and due to long list of pending old appeals, it takes quite considerable long time in its final disposal. In such circumstances a decree-holder is not only deprived of getting the possession of the rented premises, but also deprived of the monthly rent or the mesne profit or compensation for use and occupation of the rented premises as per the market value of the shop or the prevalent rent of the premises. The order 41 Rule 5 of the CPC gives jurisdiction to the appellate Court to pass interim stay staying the execution of the decree but the interim stay order is required to be passed reasonably and while doing so the interest of decree-holder is also required to be protected.
19. I have considered the submissions of learned Counsel for both the parties. Both the parties have filed their respective affidavits in support of their applicants/reply, as reference above, wherein the respondent has stated the present market rate of monthly rent of the disputed shop at Rs. 5000/- and appellants have stated that it is not more than Rs. 100/- or Rs. 150/-. It is not in dispute that in 1979 the monthly rent of the disputed shop was agreed to be paid at the rate of Rs. 50/- and since last 27 years the same monthly rent is being paid by the appellants. The rented shop is situated in the 'Sarrafa Bazar' where the business of jewelery is done and, according to respondent, the tenant-appellants are also doing the same business. It is a commercial premises. The shop is situated in Alwar which is a District Headquarters, therefore, after considering all the facts and circumstances of the present case as well as the rival submissions of learned Counsel for both the parties, 1 allow the present application under Section 151 of the C.P.C. filed by the decree-holder-respondents, and pass the following order:
The defendant-appellants will make the payment of Rs. 1000/- (Rupees one thousand) per month as mesne profit/compensation of the rented shop to the plaintiffrespondent with effect from 1st of November, 2006, by 15th day of each succeeding month, or in advance in the Bank Account of the plaintiff-respondent, the details of which will be furnished by the plaintiff-respondent to the appellants or their counsel within a period of two weeks. In case the details of the Bank Account are not furnished then the appellants will deposit the amount of mesne profit/compensation, as directed above, in the lower court itself.
20. In case the appellants do not comply with the aforesaid directions and commit default in making the payment of monthly mesne profit/compensation as directed above for consecutive two months then it will be open for the plaintiff-respondent to get the decree of eviction passed in his favour, executed even during the pendency of this second appeal.
21. With the aforesaid terms, conditions and directions, the application stands disposed of.