HEERA TRADERS v. KAMLA JAIN

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A by the landlord? To expatiate, after the above opening words in Section 13, by virtue of the substitution effected by Act 27 of 1983, can it mean that the words “or in an Appeal or in any other proceeding by a tenant against any Decree or Order for his eviction”, is not to be read along with “on of the grounds referred to in Section 12”? To put it in a different manner, can it be said that the substituted provisions of B Section 13 contemplated that the Appeal or any other proceeding by the tenant, must be in a proceeding instituted only under Section 12(1)(a), i.e., on the ground of arrears of rent, for the reason that the construction of the provision, which consists of an elongated sentence to which meaning cannot be attached, except by bearing in mind the statutory C duty of the tenant to deposit the amount for the period for which the tenant may have made default. In other words, if the words “for the period for which the tenant may have made default” is an indispensable requirement to apply Section 13, then the substituted provisions, extending the protection in an Appeal or other proceeding by a tenant, would be confined to a proceeding under Section 12(1)(a). In D this regard, we may also look for any inkling available in Section 13 for the proposition that Section 13 is attracted in an Appeal or other proceeding by the tenant, on any of the grounds under Section 12. In this regard, in Sobhagyamal (supra), this Court, we may recapitulate, has held as follows: E “Striking out the defence of the tenant, on an application moved by the landlord, the provision applicable in the Suit for ejectment on any of the grounds mentioned under Section 12, inclusive of under Section 12(1)(a) of the Act, whereas sub-Section (5) of Section 13 would apply only when the Suit is instated for ejectment on the ground of arrears of rent under Section 12(1)(a) of the Act.” This would mean that Section 13 would apply even if the ground of eviction is not one under Section 12(1)(a).

30Copy pinpoint30. As we have already found, the words “Appeal or proceeding, as the case may be”, were inserted in sub-Section (6) of Section 13 by Act 27 of 1983. This was in keeping with the substitution effected in Section 13(1), whereby the words “or in any Appeal or any other proceeding by a tenant, against any Decree or Order for his eviction”, also came to be added. Therefore, the legislative history tends to indicate that Sections 13(1) and 13(2) are to apply in any Appeal or H

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other proceeding against the Order or Decree of Eviction on any of the A grounds under Section 12.

31Copy pinpoint31. Act 27 of 1983, inserted the words “or in any Appeal or any other proceeding by a tenant against any Decree or Order for his eviction”. The word “any” is intended to convey a wide meaning. The Decree of Eviction may be a Decree passed on any of the grounds. It B need not be confined to a Decree passed under Section 12(1)(a). This is also to be understood in the context of the words “on any of the grounds referred to in Section 12”, being used, preceded by the words in a Suit or other proceeding instituted by the landlord.

32Copy pinpoint32. The problem persists in the form of the logical culmination of the command to the tenant in an Appeal or other proceeding, against any C Decree of Eviction, to deposit the rent or pay for the period, for which the tenant may have made default. Undoubtedly, in the context of Section 12(1)(a) read with Section 12(3), the words “for the period for which the tenant may have made default”, is perfectly apposite. In other words, when Section 12(3) provides that no Decree shall be passed for D eviction under Section 12(1)(a), if the tenant makes the deposit or payment of the amount of rent, under Section 13, it is intended to mean that, even if the tenant has invited the wrath of Section 12(1)(a), he would be protected under Section 12(3), if he complied with Section 13, made the deposit within a period of one month or the extended period of the service of summons and made further deposits/payment. E

33Copy pinpoint33. However, Section 13 clearly is intended to apply in a Suit or proceeding instituted by the landlord on any other grounds under Section

12. If that be so, the words, “for the period, for which, the tenant may have made default”, may not apply, as the tenant may not be in default and no ground under Section 12(1)(a) may even be pleaded. Therefore, F in such a proceeding by the landlord, the words, “for the period, for which, the tenant may have made default”, pales into insignificance and irrelevance. It would then mean that, in a proceeding under Section 12, which does not involve Section 12(1)a), or in other words, when there is no default within the meaning of Section 12(1)(a), the protection G would be available to the tenant, only if, he makes a deposit or payment for the period during the pendency of the proceeding. In other words, throughout the proceeding by the landlord, on any of the grounds under Section 12, the tenant is obliged to deposit the amount of rent. The failure to do so, would attract Section 13(6) and it is open to the Court to strike off the defence and proceed further in the matter. H

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34Copy pinpoint34. If that be so, in an Appeal or any other proceeding by the tenant against an Order of Eviction, which does not involve Section 12(1)(a), the intention of the Law-Giver appears to be that the tenant, so described, despite the Order of Eviction and the definition of the word “tenant” in Section 2(i), is obliged to pay or deposit the amount of rent under Section 13(1) or Section 13(2), as the case may be, in the manner provided, till the termination of the Appeal or proceeding.

35Copy pinpoint35. We may profitably appreciate the problem through the prism of Section 23H, which we have already adverted to. Section 23H was also inserted by Act 27 of 1983. Thereunder, the provisions of Section 13 is to apply mutatis mutandis, inter alia, in respect of a proceeding for Revision under Section 23E, against an Order of Eviction under Section 23C, as they apply to a Suit or a proceeding instituted on any of the grounds referred to in Section 12. The words “mutatis mutandis”, is a well-known legislative device, employed for the purpose of adaptation of a law in an altered context. We may only refer to the following exposition in the Judgment of this Court Reported in Ashok Service Centre and others v. State of Orissa 12: “17. … Earl Jowitt’s The Dictionary of English Law (1959) defines ‘mutatis mutandis’ as ‘with the necessary changes in points of detail’. Black’s Law Dictionary (Revised 4th Edn., 1968) E defines ‘mutatis mutandis’ as “with the necessary changes in points of detail, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like. Housman v. Waterhouse [191 App Div 850 : 182 NYS 249, 251] . In Bouvier’s Law Dictionary (3rd Revision, Vol. II), the expression ‘mutatis mutandis’ is defined as “[T]he necessary changes. This is a phrase of frequent practical occurrence, meaning that matters or things are generally the same, but to be altered when necessary, as to names, offices, and the like”. Extension of an earlier Act ‘mutatis mutandis’ to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act. …”

36Copy pinpoint36. It must be remembered that Section 13 contemplates proceedings under Section 12 and on any grounds thereunder. The impact 12 H (1983) 2 SCC 82

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of Section 23H, applying Section 13 mutatis mutandis, is that, since A Section 12 is inapplicable in a proceeding under Section 23A, wherein the grounds are only of bonafide requirement, as provided therein, Section 13, in its application under Section 23H, would mean that the proceeding by the landlord for eviction is on any of the grounds under Section 23A. Equally, in the application of Section 13 to the Revision by the tenant against an Order under Section 23C, the ground of eviction, can only be the ground under Section 23A. In other words, in its application to a proceeding under Chapter IIIA, in a Revision by the tenant against an Order of Eviction, Section 13 is intended to apply, even though, eviction is not based on the ground under Section 12(1)(a). This is for the reason that there cannot be an Order passed under Section 23A on the ground under Section 12(1)(a), as the same is inapplicable. Thus, in such a Revision by a tenant against an Order under Section 23C, the presence of the words in Section 13, “for the period for which the tenant may have made default”, would not become an insuperable obstacle. In other words, in such a Revision, the law obliges the tenant to pay the rent for the period, which may include the period, into which, he may have fallen in arrears, before the filing of the Revision and also for subsequent periods.

37Copy pinpoint37. If this is the position in respect of the manner in which Section 13 is intended to apply, even in a proceeding under Chapter IIIA, having regard to the wide words used in the newly substituted avatar of Section 13, viz., “any Appeal or other proceeding by the tenant against any decree”, the word “any” should be read harmoniously with any of the grounds referred to in Section 12, appearing earlier in Section 13. Thus, even in an Appeal or other proceeding, Section 13 would apply, despite there being no ground for eviction under Section 12(1)(a). The law was so enacted by substitution in 1983, so that during any litigation launched by the tenant against any Order of Eviction, the landlord is assured of the amount which is calculated at the rate of rent at which it was being paid. Section 13(2) takes care of the situation where there is a dispute relating to the amount of rent.

38Copy pinpoint38. We must notice that the Act also does contemplate the fixation of standard rent. Section 7 deals with standard rent. It contemplates an increased standard rent in case of a non-residential accommodation. Section 8 provides for lawful increase of standard rent in certain other cases. No doubt the respondent would point out that after an order or decree of eviction is passed no application may lie. Even accepting the H

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A same, nothing stands in the way of the rent being increased till then. Therefore, the Act, as a whole, contemplated payment of rent in the manner provided in the Act.If he fails to deposit the amount, the Appeal or proceeding launched by the tenant, would be imperilled and an adverse decision, resulting in eviction, could follow, unless the Court extended the time for payment of rent. B

39Copy pinpoint39. Section 13(1) of the Act is a unique provision, the parallel of which in any other State Law, has not been pressed into service before us by the respondent. Section 15 of the Delhi Rent Control Act, 1958, pressed before us, does not bear resemblance to Section 13(1)of the Madhya Pradesh Act, after the substitution took place in the year 1983. C THE PRINCIPLE IN ATMA RAM PROPERTIES (P) LTD. V. FEDERAL MOTORS (P) LTD.13

40Copy pinpoint40. The case arose under the Delhi Rent Control Act, 1958. An Order of Eviction was passed on the ground of illegal sub-letting. In the D Appeal by the tenant, the Tribunal stayed the eviction subject to the tenant depositing Rs.15,000/- per month, in addition to the contractual rent. This direction was set aside by the High Court. This Court took note of the definition of the word “tenant” that it did not include the person against whom an Order or Decree of Eviction has been made. In this regard, we may notice that the definition of the word “tenant” in E Section 2(i) of the Act, under which, the Appeals arise before us, also provides for a similar definition. We may notice, in this regard, paragraphs-17, 18 and 19 of Atma Ram Properties (supra): “17. In the Delhi Rent Control Act, 1958, the definition of a “tenant” is contained in clause (l) of Section 2. Tenant includes F “any person continuing in possession after the termination of his tenancy” [Section 2(l)(ii)] and does not include “any person against whom an order or decree for eviction has been made” [Section 2(l)(A)]. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali Bai case [(1977) 4 SCC G 402] . The respondent tenant herein having suffered an order for eviction on 19-3-2001, his tenancy would be deemed to have come to an end with effect from that date and he shall become an unauthorised occupant. It would not make any difference if the order of eviction has been put in issue in appeal or revision and is 13 (2005) 1 SCC 705 H

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confirmed by the superior forum at a latter date. The date of termination of tenancy would not be postponed by reference to the doctrine of merger.

18. That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. [(1999) D 2 SCC 325] this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment- creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property. E

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 F 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 proceedings are concerned. Such terms, needless to say, shall be reasonable. G (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 (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination H

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A 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. B The landlord is not bound by the contractual rate of rent effective for the period preceding 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 C at a latter date.”

41Copy pinpoint41. This Judgment has been followed by this Court in State of Maharashtra and another v. Super Max International Private Limited and others14. The case arose under the Bombay Rent Act. In fact, in the said case, the definition in Section 5(11) of the Bombay Act D was not parimateria with the definition in the Delhi Rent Control Act and the Act in question. After an exhaustive survey of the case law, which included Atma Ram Properties (supra) and Satyawati Sharma (D) by Lrs.v. Union of India and another15, this court held as follows: “73. In an appeal or revision, stay of execution of the decree(s) passed by the court(s) below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the court, to decline to grant any stay or to grant stay subject to some reasonable condition. In case stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant in revision will not have the protection of any of the provisions under the Rent Act relied upon by Mr Lalit and in all likelihood would be evicted before the revision is finally decided. In the event the revision is allowed later on, the tenant’s remedy would be only by way of restitution. G xxx xxx xxx

77. In the light of the discussions made above we hold that in an appeal or revision preferred by a tenant against an order or 14 (2009) 9 SCC 772 15 H (2008) 5 SCC 287

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decree of an eviction passed under the Rent Act it is open to the appellate or the Revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.

42Copy pinpoint42. Therefore, the question would finally arise that in a Second Appeal, filed by the tenant, against whom an Order/Decree of Eviction is passed, on a ground, other than under Section 12(1)(a), even after the tenant complies with the requirement of Section 13 and deposits the rent, as was being paid, whether the Appellate Court, when approached by the appellants-tenants, seeking a stay of the execution of the Decree under Order XLI Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred to as, ‘the Code’, for short), they could be asked to deposit an amount representing a reasonable market value of the rent. Undoubtedly, in the Act, the definition of the word “tenant”, does not include a person against whom an Order or Decree of Eviction has been passed. In the said sense, the Act can be treated as similar to the Delhi Rent Control Act. In other words, with the Order/decree of Eviction being passed, the person who was tenant till that point of time, ceases to be the tenant. He would become an unauthorised occupant in the words of this Court in Atma Ram Properties (supra). The principle in Atma Ram Properties E (supra), therefore, would apply unless Section 13 poses an obstacle in the path of the Appellate Court directing the payment of the mesne profits by the appellants as a condition of stay of execution.

43Copy pinpoint43. In this case, undoubtedly, appellants have invoked Order XLI Rule 5 of the CPC. It is in the said Application that the High Court has granted a stay, subject to the condition of payment of amount in a sum of Rs.18,000/- per month. The landlady filed an application seeking deposit of the rent which led to the stay being conditioned. This amount has been arrived at on the basis of the Report submitted by the Authority. Undoubtedly, the tenancy relates back to the year 1975. The rent canvassed by the appellants is Rs.872/- per month and Rs. 622/- per month.

44Copy pinpoint44. In Section 13 of the Act the law giver has given a section heading ‘when a tenant can get benefit of protection against eviction’. It is thereafter that the provisions are enacted. Sub section 5 of Section 13 H

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A relates only to a suit in which the ground of eviction is default of payment of rent. As far as Section 13 (6) is concerned it deals with a situation where the tenant fails to deposit or pay the amount under Section 13 of the Act. Prior to Section 13 being substituted in the year 1983 it contemplated that the court may strike out the defence against eviction and proceed with the hearing of the suit. It was this provision which was interpreted in Shyamcharan Sharma (supra) to mean that the court still has a discretion and is empowered to grant extension of time to pay rent under Section 13. By virtue of the substitution in the year 1983 in Section 13 (6) in view of the addition of the words ‘appeal or proceeding as the case maybe’, on the failure of the tenant to deposit or pay the amount as required by Section 13 the court is empowered to strike out the defence against eviction is made applicable to an appeal or proceeding by the tenant. An appeal and proceeding can be disposed off which essentially means that an Order of Eviction would ordinarily follow as the appeal or other proceeding by the tenant is against an Order of Eviction which is already passed. D

45Copy pinpoint45. Now, as far as a suit for eviction based on ground other than Section 12(1)(a), viz., arrears of rent. Section 13 expressly does not provide as to what is to happen if the tenant complies with requirement of Section 13 as distinct from the failure of the tenant to comply with Section 13. In this case we are concerned with the former namely what E would be the position if the tenant faithfully complies with the mandate of Section 13 and has deposited/ paid the amount. There is no express intention expressed by the law giver in this regard in Section 13.

46Copy pinpoint46. In this regard it is again relevant to look at what the law giver is provided in Chapter IIIA. We say this for the reason that Section 13 F has been applicable mutatis mutandis by virtue of Section 23H as we have already noticed. However, Section 23F provides as follows: - “Section 23F. Duration of stay. - The stay of the operation of the order of eviction passed by a Rent Controlling Authority or by the High Court shall not ensure for a total period of more than six months.”

47Copy pinpoint47. Therefore, this provision indicates that despite payment being made by the tenant of the amount in terms of Section 13 in a revision filed within the meaning of Section 23H an order of stay of eviction may still be necessary. In other words, ipso facto, the mere payment of the amount in terms of Section 13 would not shelter the tenant who has filed

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a revision referred to in Section 23H from being proceeded against in A execution of the decree. The law giver has contemplated an order of stay being passed in Section 23F with the restraints regarding the duration of the stay order which has been declared therein.

48Copy pinpoint48. Thus, the payment of the amount mentioned in Section 13 in a Chapter III proceeding by itself may not result in a stay of the decree or B Order of Eviction.

49Copy pinpoint49. The further question would however arise that in an appeal filed by the tenant against the decree or Order of Eviction whether on a proper construction of Section 13 of the Act, whether the Appellate Court can impose any condition other than that of deposit of the amount C which no doubt is the rent which was being paid. The other way to look at it which is what the landlady wants us to do is to import in the principle enunciated in Atma Ram Properties (supra).

50Copy pinpoint50. We have already noticed the decision rendered by a bench of 5 learned Judges of the Madhya Pradesh High Court decided on D 17.02.1977 in S.S. Harischandra Jain and others (supra),at a point of time when Section 13 was in its erstwhile form. The Court held,inter alia, as follows: “(ix) In tenant’s appeal, application of Section 13 is unnecessary because the landlord can execute the decree and recover rent, E and if, stay is sought, condition of payment of rent can be imposed. In case of landlord’s appeal against dismissal under Section 13 (5) the tenant will automatically deposit, and go on depositing, rent because of the deterrent in Section 12(3). In landlord’s appeal from dismissal on other ground, there is no special equity in his favour. In case of non-payment of rent his ordinary remedy of a F suit for recovery of rent is available to him. (xi) Section 13 is not a machinery for realisation of rent as an alternative to a, suit for recovery of rent. The object of Section 13 is to put a check on the unscrupulous tenant who would protract litigation without payment of rent. That purpose is served in the G suit. But the enquiry is reversed when the suit is dismissed.” (Emphasis supplied)

51Copy pinpoint51. This view, as again noted,has been approved by the still larger bench of the High Court reported in AIR 1978 MP 143. Apparently, H

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A these judgements led to the substitution of Section 13 in the year 1983 by way of the legislative intervention and in an appeal or other proceeding by the tenant against the decree or Order of Eviction the duty to pay rent came to be imported. Bearing in mind this legislative history which can be said to be in recognition of exposition of law by the High Court, could it be said that the legislature contemplated the Appellate Court B granting stay of the decree of eviction subject only to the condition that the amount which represented the rent which was being paid is paid as a condition.

52Copy pinpoint52. As we have seen, the actual protection which is granted under Section 13 of the Act, is what is provided in Section 13(6), in the cases at hand.

53Copy pinpoint53. Does Section 13 have the effect of operating as a stay of the Decree for Eviction in its own right? The principal contention of the appellants is that the principle in Atma Ram (supra) that upon an Order of Eviction being passed, the erstwhile tenant ceases to be a tenant and his possession becomes wrongful and, therefore, he can be called upon to deposit mesne profit, would not apply, having regard to the contents of Section 13 of the Act. This is for the reason that contrary to the definition of the word ‘tenant’ in Section 2(i), Section 13 reintroduces the concept of ‘tenant’, even after the Order of Eviction is passed and when the erstwhile tenant seeks to maintain an appeal or other proceeding against the Decree or Order of Eviction. He is called upon, furthermore, to deposit the agreed rent. Once he is called upon to deposit the agreed rent and he is treated as a tenant by the Law Giver, by virtue of the unique provisions contained in Section 13(1) of the Act, the principle in Atma Ram (supra) would, therefore, not apply. In other words, despite definition of ‘tenant’ in Section 2(i) of the Act, excluding a person against whom an Order of Eviction has been passed, he does not stand in the shoes of a person in wrongful possession, it is contended.

54Copy pinpoint54. In fact, in Section 13, as far as reference to rent is concerned, the words used are “an amount calculated at the rate of rent, at which it was paid”. The further expressions used are”a sum equivalent to rent at that rate”. These expressions are used to denote the amount payable by the person described as tenant, both before the Order of Eviction is passed and after the Order of Eviction, during the pendency of appeal or proceeding, as the case may be. We are making this observation for the reason that if the words “an amount calculated at the rate, at which,

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it was paid or a sum equivalent to the rent”, is understood as describing A the amount, which is not the rent as such, but the amount, which, the person was obliged to pay as a tenant, after the Order of Eviction is passed, then, it could be said that, what is contemplated is that, the amount directed to be paid, is treated as not the rent as such, but the amount equivalent to the amount or an amount calculated at the rate of rent. B Such an amount, being payable, may be reconcilable with the Order of Eviction, putting an end to the tenancy and erstwhile tenant becoming a person in illegal possession. But herein, we may notice that the same expression is used even for describing the amount payable during the pendency of proceeding under Section 12. In other words, these words are applicable to describe the amount payable at all points of time, including the pendency of the suit, appeal or other proceedings. To make it even more clear, both, at the stage when landlord-tenant relationship exists and, at the stage, when following an Order of Eviction, going by the definition of ‘tenant’ in Section 2 of the Act, the erstwhile tenant would cease to be a tenant, the amount payable in Section 13 is described in the similar manner. In fact, there is no case as such that the amount which is paid by the tenant in Section 13 is anything but the agreed rent. However, for reasons which follow, it will not advance the case of the appellants.

55Copy pinpoint55. As far as the aspect about the former tenant, even after the Order of Eviction being referred to as a tenant, even when he maintains an appeal against a Decree/Order of Eviction is concerned, we would think that it can be a legislative device to aptly describe the person in question devised by the Legislature. In this regard, the more important question is, whether after the Order of Eviction is passed, the erstwhile tenant would remain a tenant in law. The tenant begins his innings ordinarily as a contractual tenant. In the case of a contractual tenant, upon the expiry of the lease, he is under the Transfer of Property Act and, in accordance with the contract, duty-bound to vacate the premises and deliver possession to the landlord. Failure on his part to do so, would expose him to an action for mesne profits, on the basis that his continuance after the period and contrary to the contract, would be wrongful. In the case of a statutory tenant, which, undoubtedly, the tenant was, the mere expiry of the contractual lease, does not result in the tenancy coming to an end under the laws relating to the statutory tenancy. It is with the Order of Eviction, which is passed, that the erstwhile tenant ceases to be the tenant. After the Order of Eviction is passed, the law deprives the H

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A erstwhile tenant of his status of tenancy. The definition of ‘tenant’, accordingly, in Section 2(i) of the Act, is a legislative recognition of this position. Now, the Act enables the filing of appeal or other proceeding by the erstwhile tenant. The law prescribes the period of limitation. Does it mean that the possession of the erstwhile tenant or rather his occupation of the premises, after the Order of Eviction, is not wrongful? What will be the position, if he prefers an appeal, after a long delay and delay is condoned? Can it be said that during the period delay, at any rate, that the erstwhile tenant sheds his character as illegal occupant? We would think that with the passing of Decree or Order of Eviction, the erstwhile tenant, no longer, remains a tenant. He continues to occupy the premises, which, in law, is wrongful. Under the law, generally, continued occupation of a tenant, after the expiry of the lease, may not make him a trespasser, as his original entry was lawful. For the purpose of mesne profits, however, whether it be under the general law or under the Rent Statute, once, the tenancy itself comes to an end, which in the case of statutory tenancy occurs with the passing of the Order of Eviction and, in the case of the contractual tenancy, upon the expiry of the lease,the possession of the erstwhile tenant, indeed, becomes wrongful. The fact that the law permits the filing of an appeal or other proceeding, will not detract from the aforesaid position.

56Copy pinpoint56. This position is self-evident from the decision in Atma Ram E (supra). The Judgment in Atma Ram (supra) makes it clear that the erstwhile statutory tenant would become an unauthorised occupant upon the passing of the Order by the original Forum. This Court has further held that fact that the Order of Eviction has been challenged in an appeal or revision and it is confirmed at a later point, will not enable the erstwhile tenant to contend that he would remain a tenant even after the Decree/ Order of Eviction.

57Copy pinpoint57. Once this position at law is kept in mind, the impact of Section 13 of the Act, will become clear. We have already noticed that the actual protection, which is provided in Section 13 of the Act, as far as the cases we are concerned with, is contained in Section 13(6) of the Act. Upon the tenant, as described in Section 13, paying the amounts as provided therein, the tenant is allowed to, inter alia, prosecute the appeal or other proceeding. The failure to comply with Section 13, will result in the consequences, which are provided therein. Since, we are concerned here with the consequences of tenant acting in conformity of Section 13 H

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of the Act, apart from noticing, what we have already indicated, we would examine, whether it has the effect, which is canvassed for by the appellants.

58Copy pinpoint58. We are of the view that even though Section 13 does refer to the erstwhile tenant as a tenant and it obliges him to deposit throughout the proceedings, the amounts, which can be treated as the rent being paid, which would be contractual rent or even the rent fixed as the standard rent, this does not, by itself, alter the effect of the Decree/ Order of Eviction passed by the Court, by which, he stood deprived of the status of a tenant. The filing of an appeal or other proceeding by the tenant, does not make the Decree inexecutable. The preferring of an appeal or other proceeding, would not bring about a stay of the proceedings based on the Decree or Order of Eviction. The payment of the amounts under Section 13(1) or Section 13(2) of the Act, does not, by itself, bring about the stay of the Decree or Order of Eviction. The net result is, the principle in law and, as recognised in Section 2(i) of the Act, and, as interpreted in Atma Ram (supra), that with the passing of the Order of D Eviction by the Court, the possession of erstwhile tenant, becoming wrongful, will apply. By making the payments, contemplated in Section 13(1) or Section 13(2) of the Act, the erstwhile tenant, who stood deprived of the status of a tenant, does not regain the said status by mere reason of the fact that in Section 13 of the Act, he is referred to as the tenant. The position of the erstwhile tenant under the Act, going by the definition E in Section 2(i) of the Act, will continue to hold the field, even after an appeal or other proceeding is maintained by him. Therefore, Section 13 of the Act, in our view, despite the unique provision contained therein, does not affect the position at law, which stands declared in Atma Ram (supra). Undoubtedly, in keeping with the view expressed by the larger F Bench decisions of the High Court, which we have referred to, the Legislature wanted to ensure that even during the appeal filed by the tenant, inter alia, he would continue to pay the agreed rent.

59Copy pinpoint59. The erstwhile tenant, such as the appellants in these cases, despite making payment, in accordance with Section 13 of the Act, would G not be protected from being evicted in terms of the Decree/Order of Eviction during the pendency of the appeal or proceeding. It is open to the appellant, inter alia, in challenging the Decree/Order of Eviction to seek stay of the Decree/Order of Eviction. It is then that the Appellate Court can exercise its powers under Order XLI Rule 5 of the CPC. H

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60Copy pinpoint60. We have found reinforcement in Section 23F of the Act falling in Chapter IIIA, which also contemplates Orders of Stay being passed, even though Section 13 has been made applicable by virtue of Section 23H. As regards the power of the Appellate Court, to grant a stay, it is clear that it is open to the Appellate Court, to impose such condition, as it thinks fit. It can issue directions, as held by this Court in Supermax B International (supra). Once we proceed on the basis that with the Decree of Eviction being passed, the erstwhile tenant becomes an unauthorised occupant and he makes himself liable to pay mesne profits for his continued occupation, such an erstwhile tenant can, indeed, be called upon to pay mesne profits. Undoubtedly, there is power with the Appellate C Court, in this regard.

61Copy pinpoint61. We have, no doubt, noticed the view taken by the larger Bench of the High Court (which, in fact, paved the way for the substitution of Section 13 in the year 1983) that the Court, after finding that Section 13, with which it was concerned, did not contemplate any duty on the part of the tenant to deposit the agreed rent, in an appeal filed by him, did observe that in such a scenario, it will be open to the landlord to execute the Decree and if the tenant files an application under Order XLI Rule 5 of the CPC, the tenant can be asked to deposit the rent. No doubt, the legislative intervention in 1983 through substitution of Section 13, may have been inspired by the judicial exposition and, therefore, one of the principles of interpretation being that the Legislature must be treated as having in mind the law as interpreted by the Court to be implemented,thus, it could be urged that when an application is filed under Order XLI Rule 5, even after the substitution of Section 13, when the tenant is called upon to deposit the agreed rent, then, even in the matter of imposing condition under Order XLI Rule 5, the tenant cannot be worse off than when Section 13 was in its earlier avatar. In other words, with the deposit of the agreed rent, there would be no occasion to deposit any further amount, even under Order XLI Rule 5. We must, however, bear in mind the fact that the law, as has been declared in Atma Ram (supra), and as has been followed in Supermax International (supra), in the manner already referred to. That is, with the Decree of Eviction being passed, the erstwhile statutory tenant becomes an unauthorised occupant. The fact that the law permits the defendant to file an appeal or to take other proceedings, will not clothe him with rights as a tenant. The fact that the finality of the Decree of Eviction is attained at a later stage, will not be sufficient to extricate him from his position as an unauthorised

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[K. M. JOSEPH, J.]

occupant in the interregnum. This has the inevitable consequence that A during such interregnum, the erstwhile tenant, being in the position of an unauthorised occupant, he becomes liable to pay mesne profits. Once this position is clear, then, the necessary corollary is, even after the substitution of Section 13, it would be open to the Appellate Court to impose the condition that appellant seeking to contest the Decree of B Eviction, shall deposit a reasonable sum, which is not to be limited to the agreed rent. This position is also better understood in the light of the plight of the landlords, who are forced to wait for long, the realisation of the fruits of the Decree for Eviction, which they have obtained. In fact, this aspect, as to the entitlement of the landlord for an amount in excess of the agreed rent, in the light of the Decree of Eviction, as such, was not considered by the larger Bench of the High Court. At any rate, in the light of the Judgments of this Court, there cannot be any dispute about the principle that upon a Decree of Eviction being passed, the erstwhile tenant becomes an unauthorised occupant and remains one thereafter during the entire proceedings. The fact that there is power to fix standard rent cannot affect this position. In fact, the respondent would point out that after the eviction is ordered even the power to fix standard rent ceases as the tenancy comes to an end.

62Copy pinpoint62. It is undoubtedly true that the existence of power under Order XLI Rule 5 of the CPC, is not to be confused with the exercise of its power by an Appellate Court. That there is power with the Appellate E Court, may not enable it to Order any unreasonable amount or reach a windfall to the landlord. The power is to be exercised on a careful consideration of the facts of each case. It will include the quantum of agreed rent, which the tenant is paying under Section 13 of the Act. It will consider whether the said sum is the result of any fixation of standard rent. If so, what is the point of time, at which, the agreed rent was arrived at, the nature of the premises and all other relevant facts. It may include a case where the Appellate Court, on a perusal of the impugned Judgment, is convinced, prima facie, no doubt, that the Decree for Eviction is palpably insupportable, in which case, it may grant a stay, without calling upon the tenant to pay any sum in excess of amount fixed in Section 13 of the Act.

63Copy pinpoint63. We are unable to accept the appellants case that Section 13 of the Act, being a special law, the power under Order XLI Rule 5, cannot be exercised to direct deposit or payment of mesne profits. H

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A Compliance with Section 13 by the appellants, does not, as found by us, amount to a stay of the Decree for Eviction. The power of the Appellate Court to impose conditions for staying the Decree, cannot be confined by the dictate in Section 13 of the Act, to the appellants/tenants, to deposit the agreed rent, particularly, having regard to the time consumed in litigation and, more importantly, the impact of the Decree of Eviction, B depriving the appellant of his status as a tenant.

64Copy pinpoint64. The upshot of the above discussion is that we reject the contention of the appellants that Section 13 of the Act will detract from the principle in Atma Ram (supra) and Supermax International (supra)being available to the cases under the Act. C

65Copy pinpoint65. Coming to the facts, the rent being paid for 100 square feet of non-residential accommodation by one of the appellants is Rs.622/-, fixed in 1975. In the other case, the rent canvassed by the appellant, as being the agreed rent, was a monthly rent of Rs.847/-, fixed in the year 1975. The premises in question is also non-residential and it consists of 150 D square feet. There is no reference to the rent being fixed in proceedings for fixing the standard rent. The Suit was filed in the year 2009. The Decree for Eviction was passed in the year 2013. The First Appellate Court dismissed the appeal filed by the appellants on 25.03.2014. The Second Appeal was filed in the year 2014. The impugned Orders came E to be passed on 17.03.2020 and 25.08.2021 at the stage of second appeal when two courts have found against the appellants. The amount has been fixed at Rs.18,000/- per month. The amount has been fixed on the basis of the Report submitted by the Rent Controlling Authority, who was asked to report regarding the market rate of the accommodation in question. The complaint of the appellant is that the Rent Controlling F Authority has tendered its Report and, while doing so, adequate opportunity was not provided and the materials placed were not considered and that the amount is unreasonable. It is said to be based only on the Panchnama prepared by the Revenue Officer. The High Court has found that the premises are located in a famous commercial place and the rent of Rs.847/ G - per month was fixed in the year 1975.

66Copy pinpoint66. We do not think that the appellants should be permitted to challenge the quantum, once we have answered the legal issues flowing from Section 13, against the appellants. It would appear from the written submission that the appellants have deposited certain sums in execution H of the orders. The appellants will be entitled to adjust the said amount in

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[K. M. JOSEPH, J.]

complying with the impugned orders. The amount of Rs.18000/- will A subsume the amount paid/payable under Section 13 of the Act.

67Copy pinpoint67. We may, however, notice the following views expressed by this Court in Supermax International (supra): “79. Before concluding the decision one more question needs to be addressed: what would be the position if the tenant’s appeal/ B revision is allowed and the eviction decree is set aside? In that event, naturally, the status quo ante would be restored and the tenant would be entitled to get back all the amounts that he was made to pay in excess of the contractual rent. That being the position, the amount fixed by the court over and above the C contractual monthly rent, ordinarily, should not be directed to be paid to the landlord during the pendency of the appeal/revision. The deposited amount, along with the accrued interest, should only be paid after the final disposal to either side depending upon the result of the case. D

80. In case for some reason the court finds it just and expedient that the amount fixed by it should go to the landlord even while the matter is pending, it must be careful to direct payment to the landlord on terms so that in case the final decision goes in favour of the tenant the payment should be made to him without any undue delay or complications.” E

68Copy pinpoint68. Thus, in the facts of this case, we would think that the direction to pay the entire amount, may require modification. Equally, we are of the view that some time must be granted to deposit the amount.

69Copy pinpoint69. Accordingly, in modification of the impugned Orders, we order as follows: a. Appellants are granted five weeks to deposit the entire amount in terms of the impugned orders after adjusting the amounts already deposited/paid on the basis of the orders of the execution court. The amounts will also subsume the amounts paid/payable under Section 13 of the Act. b. We further order that the respondent in the appeals shall be permitted to withdraw the rent at the rate of Rs.10,000/- per month from the amount which is deposited; H

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A c. The respondent shall be permitted to withdraw at the rate of Rs.10,000/- per month from the amount to be deposited by the appellants, on such terms to be fixed by the High Court;

70Copy pinpoint70. Save as aforesaid, we affirm the impugned Orders. The appeals B are partly allowed as above. There will be no order as to costs.

Divya Pandey Appeals partly allowed. (Assisted by : Deepak Panwar, LCRA)