HON’BLE SRI JUSTICE CHALLA KODANDA RAM C.R.P.No. 3766 of 2014 DATE: 27.12.2014 Between:
Mamidi Prakash .. Petitioner and Ashok Kumar Gupta .. Respondent O R D E R:-
This Civil Revision Petition is directed against the order dated 27.08.2014 in I.A.No. 990 of 2014 in A.S.No. 22 of 2014 passed by I Additional District Judge, Nizamabad, whereby the petition filed by the respondent-defendant seeking stay of execution of decree, was allowed, however on certain terms.
Admittedly, the petitioner-plaintiff, who is the landlord of the suit schedule property, filed O.S.No. 378 of 2010. The Principal Junior Civil Judge, Nizamabad, after considering the evidence of PWs.1 and 2, decreed the suit vide judgment dated 23.06.2014 directing the respondent-defendant to vacate the suit schedule property and deposit arrears of rent of Rs.20,000/- and handover the vacant physical possession thereof to the plaintiff within two months from the date of judgment and decree, failing which, the plaintiff is entitled to get the same vacated through process of Court at the expense of the defendant. The trial Court also observed that there was enhancement of rent at the rate of Rs.4,000/- per month from April, 2010 onwards. Being aggrieved by the judgment, the respondent-defendant(J.Dr.) filed A.S.No. 22 of 2014 along with an application seeking stay of execution of the decree dated 23.06.2014, and the learned I Additional District Judge, Nizamabad, vide order dated 27.08.2014, granted interim stay of execution of decree on condition that the respondent-tenant deposits rent at the rate of Rs.1,000/- per month to the credit of the suit for the period from April, 2010 to July, 2014 within a week and continue to deposit the same on or before 5th of every succeeding month.
Sri Y.S. Yellanand Gupta, learned counsel for the petitioner, submits that by virtue of the interim order passed by the trial Court, the petitioner-landlord is prevented from enjoying the fruits of the judgment and decree both by deprivation of the possession of the property and by the reduction of rent. He further submits that the validity of the judgment delivered in the suit is the subject matter of the appeal, and pending disposal of the appeal, the respondent-tenant may be directed to pay rents as determined in the suit.
On the other hand, Sri T.V. Kalyan Singh, learned counsel for the respondent-tenant has vehemently opposed enhancement of rent by the petitioner and endeavoured to point out that the trial Court, nowhere decided that the rent was enhanced to Rs.4,000/- per month. He has further specifically raised an objection that the decree dated 23.06.2014 does not reveal anything about arrears of rent at the rate of Rs.4,000/- p.m.
Heard the learned counsel for both the parties and perused the material placed on record.
The objection raised by the learned counsel for the respondent-tenant that the decree does not speak about payment of arrears of rent at Rs.4,000/- per month cannot be found fault with. However, a careful perusal of the judgment and decree leaves no manner of doubt that there was a defect in drafting the decree which essentially is the function of the Court. Moreover, the order under revision discloses that the lower appellate Court, while granting stay of judgment and decree, observed that inasmuch as the respondent had represented that he had fair chance of success in the Appeal Suit, it was appropriate to grant stay of execution of judgment and decree, and accordingly granted stay, however on certain terms, and such reasoning is totally unsustainable and goes against the provisions of Order 41 Rule 5(2) CPC.
In the facts and circumstances of the case, this Court directs the trial Court to look into the decree and redraft it in specific terms of the judgment dated 23.06.2014 as obviously the same is not in conformity with the judgment. Further, considering the fact that the trial Court had categorically found that the petitioner-landlord is entitled to the enhancement of arrears from April, 2010 and the fact that the appeal suit is pending adjudication, I deem it appropriate to modify the condition imposed by the lower appellate Court to the following extent as suggested by the learned counsel for the respondent-tenant:
“The respondent shall deposit an amount Rs.2,000/- per month instead of Rs.1,000/- per month to the credit of the suit. The arrears shall be deposited at the rate of Rs.2,000/- per month from April, 2010 till date in two instalments on or before 31.03.2015 and the petitioner- landlord is entitled to withdraw the same. It is needles to mention that the amounts paid earlier shall be given credit to. Further, the respondent-tenant shall continue to pay rent at the rate of Rs.2,500/- per month till the disposal of the appeal. It is made clear that in case of non-compliance of the stipulated condition, the stay granted by the lower appellate Court shall automatically stand vacated and this Court does not consider any extension of time for compliance of the imposed condition.”
In terms of the above observations, the Civil Revision Petition is disposed of. No order as to costs.
As a sequel to the disposal of the Civil Revision Petition, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
CHALLA KODANDA RAM, J 27.12.2014 bcj