HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 372/2021
Shri Kishan Heda S/o Shri Mankaran Heda, Near Khalsa
Transport Company, Infront Of Kapees Garden Restaurant,
Peeplaj, Tehsil Masuda Dist. Ajmer (Raj.) (Owner Business) Shri
Krishan Motor Garage, Near Khalsa Transport Company Infront
Of Kapees Garden Restaurant, Peeplaj, Tehsil Masuda, Dist Ajmer
(Raj.) Other Address- Shri Kishan Heda S/o Shri Mankaran Heda,
R/o Heda Gali Near Arya Samaj, Beawar (Raj.) Owner Business-
Shri Krishna Motor Garage, Peeplaj, Tehsil Masuda Dist. Ajmer
(Raj.)
----Appellant
Versus
Manmeet Singh S/o Late Shri Dalip Singh, Aged About 40 Years,
R/o Pushkar Ganj Gali No. 1 Beawar District Ajmer.
----Respondent
For Appellant(s) : Mr. Gopendra Singh Shekhawat Mr. Vikram Singh Panwar For Respondent(s) : Mr. Saurabh Bhandari HON'BLE MR. JUSTICE SUDESH BANSAL Order 02/03/2022 The appellant-tenant has filed instant first appeal assailing the decree for eviction dated 08.09.2021 passed by learned Additional District Judge No.3, Beawar in civil suit Case No.03/2016 whereby and whereunder the learned trial Court directed the appellant to vacate and hand over the possession of rented premises to plaintiff and also held entitled the plaintiff to receive due rent of Rs.3,74,797/- up to the date of filing the suit. From the date of filing the suit till vacation of rented premises and handing over possession trial court allowed the plaintiff for mesne (Downloaded on 04/03/2022 at 08:55:16 PM) (2 of 4) [CFA-372/2021] profit @ double of last paid rent i.e. 13,600 X 2 = Rs.27,200/- per month.
The rented premises comprises eight shops with an open area behind the shops and entire premises is being used for Motor Garage by the appellant. The premises was was taken on rent w.e.f. 05.09.2007 for a period of five years, and the tenancy has come to an end after expiry of five years on 04.09.2012. The respondent-plaintiff filed eviction suit invoking the provisions of Section 106 of the Transfer of Property Act, claiming the possession, due rent and mesne profit. The suit has been decreed by the trial Court as mentioned above.
Heard learned counsel for both parties.
Admit.
Issue notice to respondent.
Since respondent is represented through his counsel, no need to issue notice.
Registry is directed to send the requisition to the trial Court to transmit the record.
Heard on stay application also.
The appellant has prayed to protect his possession over the rented premises during course of first appeal. The respondent decree holder has filed reply to the stay application and asked for mesne profit @ 68,700/- per month. The respondent has also submitted valuation report of rental for rental purpose with photographs.
For the purpose of determination of mesne profit, the guidelines and principle laid down by the Hon'ble Supreme Court in case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 may be taken into consideration. In (Downloaded on 04/03/2022 at 08:55:16 PM) (3 of 4) [CFA-372/2021] order to maintain the equity and to protect the interest of both parties during pendency of appeal, it is necessary to compensate the decree holder by way of fixing of mesne profit due to postponing the execution of eviction decree & depriving him of fruits of the decree. The valuation report submitted by plaintiff may not be treated as conclusive evidence to assess the prevlant market rent; the respondent himself admits that the last agreed rent was @ 13,600/- & asked the mesne profit @ double of last agreed rent i.e. (13,600 X 2 = 27,200/-. The suit premises is commercial. Therefore, considering the size, location, use of premises and by applying the robust common sense and also all other attending facts and circumstances of this case, it is just and proper to determine the mesne profit @ 30,000/- per month. This Court in case of Deendayal Vs. Nrapendra Kumar, civil second appeal No.103/2017 decided on 28.02.2022 has considered the issue of increase mesne profit as well during course of appeal and relying on the provisions of Rent Control Act, held that mesne profit should be increased by 5% every year.
It is hereby directed that execution of decree for eviction and mesne profit @ Rs.27,200/- for the period during pendency of suit; shall remain stayed subject to condition of making payment of decreetal amount Rs.3,74,797/- and mesne profit at the rate of Rs.13,600/- from the date of filing the suit 01.07.2013 to the date of judgment i.e. 08.09.2021 up to month of September, 2021. From the month of October, 2021, the appellant shall pay mesne profit at the rate of 30,000/-. The mesne profit determined at the rate of Rs.30,000/- per month shall increase at the rate of 5% every year, it means from October, 2022, the appellant shall pay mesne profit 30,000/- + 5% and this 5% on the basic amount of (Downloaded on 04/03/2022 at 08:55:16 PM) (4 of 4) [CFA-372/2021] mesne profit would increase every succeeding year until decision of this first appeal. The amount already paid/deposited by the appellant shall be liable to be adjusted.
Both parties admit that appellant is having bank account of defendant, wherein the arrears of rent and mesne profit would be deposited. Three months time is granted to pay arrears. From March, 2022 onwards the mesne profits shall be paid by 10 th day of every month.
It is made clear that in case of non-payment of arrears of rent or its part or if appellant commits default in making payment mesne profits for four months, the respondent-decree holder shall be entitled to execute the eviction decree and dispossess the appellant during pendency of appeal.
With the aforesaid, stay application stands disposed of. In view of above, respondent does not press the application for recalling the interim stay order dated 22.11.2021, hence the same is dismissed.
(SUDESH BANSAL),J TN/70 (Downloaded on 04/03/2022 at 08:55:16 PM) Powered by TCPDF (www.tcpdf.org)