R.S. KHARE Vs. OM NARAIN GUPTA

JUDGEMENT

(1.) TENANT -petitioner is behaving in a most un:reasonable manner. In an appeal (Rent appeal no.30 of 2007) Additional District Judge Court No.13, Kanpur Nagar granted conditional stay order staying eviction on the condition that tenant would pay Rs.3,000/- per month to the landlord during pendency of appeal. Said order was passed on 25.9.2007. Against the said order writ petition no. 59828 of 2007 was filed in this Court 3 All] Dr. R.S. Khare V. Om Narain Gupra 891 which was dismissed on 4.12.2007. Thereafter tenant-petitioner filed an application before the appellate court for setting aside the order/reduction of rent. The argument was that on the basis of Supreme Court judgment reported in M. Sharif vs. F.A. Khan 2008 (1) A.R.C. 628 rent could not be enhanced as condition of stay. In the said case rent had been enhanced by the High Court from RS.100/- to Rs.4,000/-. It appears that the High Court had enhanced the rent through interim order in landlord's writ petition. The extent of enhancement was also found by the Supreme Court to be quite arbitrary and unreasonable.

(2.) AS the judgment of the Supreme Court was not in between the parties hence appellate court/Additional District Judge could not modify its order dated 25.9.2007, which had been affirmed by the High Court. On the basis of Supreme Court judgement the appellate court recalled its order dated 25.9.2007 through order dated 4.4.2007. However till then the tenant petitioner did not inform the court that writ petition filed against order dated 25.9.2007 had been dismissed. Moreover Supreme Court only said that; rent cannot be enhanced arbitrarily. However, reasonable enhancement as condition of stay is always warranted vide Supreme Court authority reported in Atma Ram Properties vs. Federal Motors, 2005 (1) SCC 705, The Supreme Court in a later authority reported in N.A. Khan vs. M.R.U.Khan 2008(2) ARC 579 (decided on 5.5.2008) set aside an interim order of the High Court passed in landlord's writ petition through which rent had been: enhanced. However, in para-8 it was observed by the Supreme Court as follows: "We should however note the distinction between cases where a writ petition is filed by the tenant challenging the order of eviction and seeking 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 even when such direction is issued as a condition for stay of eviction. High Court should desist from doing so "

(3.) THE only fault which I find in the impugned order is that the lower appellate court was quite lenient in imposing the cost. Heavier cost ought to have been imposed. However, this is tenant's writ petition hence I am not inclined to enhance the cost. This writ petition is utterly devoid of merit hence dismissed.