MADAN BANSAL Vs. RAMNARAYAN SHARMA

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) WHETHER the plaintiff is entitled to a suitable direction in his favour directing the defendant to pay reasonable amount of mesne profit or compensation for use and occupation of the premises and what should be the reasonable amount of mesne profit or compensation in the facts and circumstances of the present case, during the pendency of this second appeal, are the points involved in this application ?

(3.) FROM the record it is clear that monthly rent of the disputed shop was Rs. 100/- and the same is going on since 1977 onwards. The decree of eviction was passed in favour of the plaintiff-respondent way back on 13. 2. 1996 but the plaintiff- respondent could not get vacant possession of the shop as the defendant preferred appeal. Normally the regular first appeal is admitted being a statutory appeal and interim stay order is also passed particularly if impugned decree is eviction decree. The long pendency of old cases in the courts cannot be denied. The criteria for admitting the appeal and grant of stay are altogether different than the criteria adopted by the courts at the time of final disposal of the appeal. If the appellate court considers a prima facie case then the appeal is admitted. So far as regular first appeal is concerned the same is normally admitted unless the appellate court considers that it is liable to be dismissed at admission stage itself. The first appellate court dismissed the appeal of the defendant vide its judgment and decree dated 31. 7. 2001 and the judgment and decree of the lower court dated 13. 2. 1996 was affirmed. However, this court, considering that a substantial question of law arises in this second appeal, admitted the same and stayed the execution of the eviction decree. As already observed above, the criteria for admission of the appeal are altogether different than what adopted at the time of hearing of the appeal for final disposal. Even if the appeal is admitted by the first appellate court being a statutory appeal or second appeal as substantial question of law arises than 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.