(1) This is an application by the Original plaintiff against the order of the trial court staying the suit for recovery of arrears of Ren. Ejectment and damages.
(2) The plaintiff, is a landlord of certain premises in this city. Opponent is a tenant of the those premise. The opponent is described as retried D.I.G. of police resident of wright Town, Jabalpur. According to the plaint averment, the plaintiff purchased the premises under registered sale deed date 12-12-1962 a monthly rental of Rs. 140/- The plaintiff applied to the Rent controller under the C.P. and Berar letting of Houses and Rent Control Order. 1949, for permission to issue a notice terminating the tenancy of the opponent. The Rent controller granted permission on 27-9-1963. Thereafter the plaintiff issue a notice terminating the tenancy of the defendant on 1-11-1963 called upon him to evict [sic] the premises at the end of the month. Thereafter the plaintiff filed his suit on 17-12-63. In this suit he claims Rs. 1260 by way of the arrears the rent from 1-3-1963 to the date of the filing of the suit, damages from 1-12-1963 for the further period at he rate of Rs. 10/- per day. He also claims in the suit possession of the property and determination of the damages and arrears of rent as claimed therein.
(3) It appears considerable time was taken to bring the defendant before the court and the defendants filed his written statement, after seven months of the filing of the suit, on 27-7-1964 Issues were framed on 12-8-1964. On this date the defendants filed an application Exh 20 praying that the suit should be stayed till the disposal of the suit appeal filed by him against the order of the Rent controller. The defendants has not disclosed as to when. The appeal wassailed only mention being that appeal was pending before the collector. This was opposed by the plaintiff. The grounds of opposition by the plaintiff were that the premise were required for personal occupation of the plaintiff, in any cases if a stay were to be granted it should be on term because the defendants was is area of the considerable amount by way o the rent which he should be called upon pay as condition for stay and further provision should be made to ensure payment for subsequent period. The learned judge of the trial court has granted stay of the suit with out terms by the following order:
'The suit is fixed for evidence. In view of the ruling in AIR 1948 Bom 347. I am proud to stay the suit and the stay order cannot be a condition precedent to payment or non - payment of rental areas. The plaintiff if so advised of may resort of the his remedies like of one given in O. XXVII R. 5 C.P. code. Case stayed until under further orders.'
(4) The plaintiff challenges order this as vitiated by the material irregularity and illegality in exercise, of jurisdiction. Neither counsel was able to throw light in on the Relevancy of the reference of or order 28, Rule 5 in the order under Challenge. It is not understood how the provisions of Order 28, Rule 5 cold be availed by the plaintiff. The plaintiff request was that the there was no case for stay but it stay were to be granted it should be on terms securing payment of large amount of the arrears occupation till the stay operated. This learned judge ought to have applied him mind to this contention and mere reference of order 28, Rule 5 Could not have disposed of the objection of the plaintiff.
(5) it is also clear that the learned judges has not exercised his jurisdiction of properly and with care. The decision of this court in Indra Singh v. Shiavax Cawasji, AIR 1958 Bom 347 which was the reference to section 14 of the Bombay Rents, Hotel Rates and lodging house Rent [Control] Act, [7 of 1944] would not in terms apply but assuming that the principles in were to the be called in aid the court could not have stayed the suit wholesale. The learned chief justice has held that pending an appeal before the collector from the order of the controller i.e, Rent Controller, the landlord is not entitled on the strength of the certificate which he has obtained from the controller to evict the tenant. Thus the only effect of the certificate granted to the landlord being put in the challenge was to disable the landlord from evicting tenant. In other words, actual eviction of could not be order until the question of permission was finally decided. But barring that stage, it does not appear there is any impediment in the way of the court in proceeding with the suit with respect to all other matter. The suit with respect concerns the claim for arrears of rent and also for damages which have to be determined. I n any case, at most that could be done with propriety. In such cases is that the case with court finds that the plaintiff is entitled to eject the tenant the decree for ejectment will not be executed until final it all the circumstances justify such a course.
(6) Reference is made on the behalf of the non - applicant to the decision of the nagpur High Court reported in Phanibhshan Deb v. Gulabchand, 1951, NLJ 10: AIR 1951 Nag 203 and the only observations of which any assistance of could be derived that the tenant can request the court trying the suit for ejectment to stay proceedings therein and await the decision of the Deputy commissioner in Appeal. This certainly the defendants could do. But before such a request cold be granted, the defendant must show his bona fides. It cannot be laid down as an invariable rule that the in every case where the landlords obtains an order for the tent controller to evict the tenant or issue a notice determining his lease and a suit is filed that suit must be stayed in all cases where the defendants prefers to challenges the order of the Rent Control question whether a suit should be strayed is a matter of discretion of and that discretion has to be exercised in judicially. In exercising discretion of rent and the failure of the tenant to make proper arrangement for payment of the compensation are during the period he is in occupation of are all relevant factors which are to be taken into consideration. It has also to be seen as it apparent from this case, that the application for stay was inordinately delayed. Stay could have been applied at the very first hearing by brining to the notice of the judge that the order of the Rent Controller on which the suit of founded is itself being challenged in appeal. There are sufficient indications in the litigation to show that every attempt has been made by the tenant to prolog and procrastinate proceedings so that the evil day will be postponed as much and as fair as possible. Such attitude cannot be countenanced and the such trial court should not having granted stay merely for the asking. It is not the law that merely for because an appeal is filed, the proceedings out of the which the appeal arises automatically stayed. Even in a civil court merely filing an appeal does not operate as against that is made very clear from Order 41,rule 5 of the Civil procedure Code. It will be must more so when certain ancillary proceedings are pending in a different Tribunal which May have a bearing on the litigation of between the parties in the Civil court. It is not unusual to find that the order of the Rent Controller is challenged in the appeal and them by the writ petition in the High court and the tenant could successfully stay off eviction of for quite some time. The civil court therefore cannot lightly countenances of such an attempt to prolong the proceedings.
(7) The provision of Clauses 13 of the C.P. and Berar Letting of Houses and Rent Control order show that the only bar that is raised by the clauses 13 is giving of notice terminating his lease without written permission of the Rent Controller. Once such permission is grant, the bar is removed. If that permission get set aside by appeal or other order the plaintiff cause of the action ma not survive litigation's of the commenced in the civil court merely because of there is possibility of such a contingency arising the it is not proper for the civil court trying the suit to stay its hands indefinitely awaiting of result of the Rent Control proceedings first before the appellate court and the then before the superior court such course is not warranted as it results in unnecessary of prolongation of the proceedings.
(8) Normally therefore the order passed could not have been justified and was liable to be set aside. It s however pointed out that the appeal before the appellate point authority, it fixed for hearing on 4-3-1965, i.e. a few days hence. I therefore modify the order challenged in this revision and direct as follows.
The tenant shall deposit within the period of one month from today all the arrears of the rent claimed in the suit and the amount claimed for use and the occupation at the rate of the Rs. 140/- p.m. from 1st December 1963 till 1st March 1965 within a period of one month on such deposit being made further proceeding in the still will be stayed only till the decision of the appeal for field before the Rent control Authorities. The defendants shall further pay each month on or before 5th of next they pay each month on or before 5th monthly sum of Rs. 140/- by way of the use and occupation of premises. On these terms being satisfied the stay shall continue thus the stay will the continue decision of the further proceedings that may be taken.
(9) with this modification the revision of is allowed. The applicant will be entitled to his costs. The stay will be entitled to his costs. The stray will operate only so far as delivery of judgment is concerned.
(10) Order accordingly.