Samir Mukherjee v. Devinder Kumar Bajaj (SC) BS191635
SUPREME COURT OF INDIA

Before:- M. Jagannadha Rao and A.P. Misra, JJ.

IA No. 2 of 1999 in CA No. 1906 of 1998. D/d. 24.09.1999.

Samir Mukherjee - Applicant

Versus

Devinder Kumar Bajaj and Ors. - Respondent

Civil Procedure Code, 1908, Order 39 Rule 1 and 2 - Stay of decree in appeal - Decree in favour of respondent landlord - Supreme Court granting stay of eviction and also directing appellant to deposit rent - Appellant making self adjustments and making short deposit - In default of compliance with Supreme Court's order passed in the civil appeal, the stay granted in the civil appeal vacated - Stay of the final decree granted in the special leave petition also stood automatically vacated.

[Para 6]

ORDER

M. Jagannadha Rao and A.P. Misra, JJ. - This is an IA filed by the landlord decree-holder (respondent in civil appeal) for vacating the stay granted on 3-4-1998 by this Court in the civil appeal in favour of the appellant. The defendant has also filed an IA (not numbered) in this civil appeal on 10-8-1999 for extension of the time for deposit of Rs. 5 lakhs granted in the connected Special Leave Petition No. 8455 of 1999 on 30-7-1999.

2. Today, the appellant in the civil appeal, who is also the petitioner in SLP No. 8455 of 1999 offers to pay Rs. 3 lakhs by way of banker's cheque. This amount is, according to the appellant's counsel towards the amount of Rs. 5 lakhs as directed by this Court on 30-7-1999 in the connected SLP No. 8455 of 1999, which was preferred against the final decree dated 3-10-1998 relating to mesne profits and arrears of rent.

3. Having heard learned counsel on both sides, we think it is a fit case for vacating the stay granted on 3-4-1998 in the civil appeal and for refusal of extension of time as prayed for in the special leave petition. The order dated 30-7-1999 passed in the special leave petition is a self-operating order and the stay stood automatically vacated because the amount of Rs. 5 lakhs was not deposited within 4 weeks as directed in that order. No doubt, the application for extension has been filed within the period of four weeks from 30-7-1999, which was the date of the order in the special leave petition. Even so, we do not think that it is a fit case for granting extension of time.

4. So far as the order of stay of eviction granted in civil appeal on 3-4-1998 is concerned, the appellant had to pay the entire amount of arrears computing the amount at Rs. 9500 per month for the past and the future. According to the statement filed by the plaintiff, which is at p. 13 of the paper-book in IA No. 2 of 1999 in CA No. 1906 of 1998 - for the period 1-6-1992 to 31-1-1999 - the arrears come to Rs. 7,60,000, whereas the amount paid by the appellant comes to Rs. 3,86,834 leaving a balance of Rs. 3,73,836. This would be the arrears amount computed at Rs. 9500 per month, as per the landlord.

5. Insofar as the aforesaid amount of arrears of Rs. 3,73,836 computed on the basis of Rs. 9500 per month is concerned, the bulk of it arises on account of Rs. 2,23,419 (see p. 22 of paper-book in IA No. 2 of 1999 in CA No. 1906 of 1998), for the period June 1993 to May 1995 where the appellant unilaterally adjusted the said amount towards alleged repairs. As per our order dated 3-4-1998 in Civil Appeal No. 1906 of 1998, the arrears of rent were to be computed on the basis of Rs. 9500, even for the period June 1993 to May 1995. It may also be noted that when the civil appeal came up for consideration on 27-8-1999, the appellant was only wanting to produce proof of payment of rent as per our order dated 3-4-1998. The fact that the appellant has not paid, at any rate Rs. 2,23,419 out of Rs. 3,73,836, but has made unilateral adjustment, shows that there can be no proof of payment of the said amount.

6. In the result, in default of compliance with this Court's order dated 3-4-1998 passed in the civil appeal, the stay granted on 3-4-1998 in the civil appeal is vacated.

7. It is also made clear that the stay of the final decree granted on 30-7-1999 in the special leave petition also stood automatically vacated, for as stated earlier, we have refused, in the unnumbered IA, to extend the time fixed in that order dated 30-7-1999.

8. The IA is disposed of accordingly.

IA disposed of.