Rajasthan High Court - Jodhpur
Sh. Kanhaiya Lal vs Sh. Seth Kalyan Ji Shobagchandra Jain ... on 27 February, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:9920]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 19830/2023
1. Sh. Fusa Ram S/o Magan Lal, Aged About 45 Years, R/o
Pindwara, District Sirohi.
2. Smt Manjula D/o Magan Lal W/o Magan Lal, Aged About
30 Years, Village Kinwarali, Tehsil Aburoad Distt. Sirohi
----Petitioners
Versus
1. Sh. Seth Kalyan Ji Shobagchandra Jain, Swetambar Pedi
(Regd. Trust) Pindwara, District Sirohi
2. Milapchandra S/o Surchand, Pindwara, District Sirohi
3. Hirachandra S/o Samarthmal, Pindwara, District Sirohi
----Respondents/Plaintiffs
4. Bhera Ram S/o Pata Ji Sen, R/o Pindwara, Suaro Ki Seri
Pindwara, District Sirohi
5. Shankarlal S/o Manganlal, R/o Pindwara, Suaro Ki Seri
Pindwara, District Sirohi
6. Mahendra S/o Maganlal, R/o Pindwara, Suaro Ki Seri
Pindwara, District Sirohi
Performa Respondents
Connected With
S.B. Civil Writ Petition No. 19745/2023
1. Sh. Kanhaiya Lal S/o Otaram, Aged About 61 Years, R/o
Rawalo Ki Seri, Pindwada, District Sirohi.
2. Sh. Ashok S/o Otaram, Aged About 56 Years, R/o Rawalo
Ki Seri, Pindwada, District Sirohi.
3. Sh. Ranchod S/o Otaram, Aged About 47 Years, R/o
Rawalo Ki Seri, Pindwada, District Sirohi.
4. Sh. Harishankar S/o Otaram, Aged About 44 Years, R/o
Rawalo Ki Seri, Pindwada, District Sirohi.
5. Sh. Rajesh S/o Otaram, Aged About 53 Years, R/o Rawalo
Ki Seri, Pindwada, District Sirohi.
----Petitioners
Versus
1. Sh. Seth Kalyan Ji Shobagchandra Jain, Swetambar Pedi
(Regd. Trust) Pindwada, District Sirohi.
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[2024:RJ-JD:9920] (2 of 7) [CW-19830/2023]
2. Sh. Milapchandra S/o Surchand Ji, R/o Pindwara, District
Sirohi
3. Sh. Babulal S/o Manrup Ji, R/o Pindwara, District Sirohi
(Dead)
4. Sh. Hirachandra S/o Samarthmal Ji, R/o Pindwada,
District Sirohi
--Respondents/Plaintiffs
5. Shashi Devi W/o Sh. Otaram (Dead), R/o Rawalo Ki Seri,
Pindwada, District Sirohi.
6. Sh. Vikash S/o Sh. Otaram, R/o Rawalo Ki Seri,
Pindwada, District Sirohi.
7. Lila D/o Otaram, R/o Rawalo Ki Seri, Pindwada, District
Sirohi.
8. Vimla D/o Otaram, R/o Rawalo Ki Seri, Pindwada, District
Sirohi.
9. Shilpa D/o Otaram, R/o Rawalo Ki Seri, Pindwada, District
Sirohi.
10. Lrs Of Sh. Chhagan Lal S/o Sh. Otaram, R/o Rawalo Ki
Seri, Pindwada, District Sirohi.
10/1 Smt. Bharti Devi W/o Chhagan Lal Ji, R/o Rawalo Ki Seri,
Pindwada, District Sirohi.
10/2. Sh. Bharat Kumar S/o Chhagan Lal Ji, R/o Rawalo Ki Seri,
Pindwada, District Sirohi.
10/3. Manisha D/o Chhagan Lal Ji, R/o Rawalo Ki Seri,
Pindwada, District Sirohi.
----Respondents
For Petitioner(s) : Mr. K.K. Rawal
Mr. Vikram Sharma
For Respondent(s) : Mr. Shreyansh Mardia
HON'BLE DR. JUSTICE NUPUR BHATI
Order 27/02/2024
1. The present writ petitions have been preferred under Articles 226 & 227 of the Constitution of India claiming the following reliefs:-
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[2024:RJ-JD:9920] (3 of 7) [CW-19830/2023] "It is therefore respectfully prayed that writ petition filed by the petitioners may kindly be accepted, order under dated 29.08.2023 (Annex.-5) passed by learned First Appellate Court may kindly be quashed and set aside and application (Annex.-3) filed by the petitioners may kindly be allowed with cost till disposal of appeal (Annexure-2) on the payment of mesne profit at agreed rate.
Any other order/direction, which Hon'ble Court deems just and proper in the facts and circumstances of this case may kindly be passed in favor of petitioners."
2. Brief facts of the case are that a suit for eviction and recovery of rent was filed by respondent Nos.1 to 3 and respondent Nos.1 to 4 respectively against the petitioners. The said eviction petition came to be allowed by the learned Civil Judge (for short 'the trial court') vide judgment and decree dated 03.04.2014 (Annexure-1) and 04.08.2016 (Annexure-1) respectively. The petitioners being aggrieved of the said judgment and decree filed an appeal before the learned Additional District Judge, Abu Road, which was subsequently transferred to Additional District Judge, Pindwara. Along with the said appeal, a stay application under Order 41 Rule 5 CPC was also filed to which, the respondents filed a reply. After hearing both the parties, the learned Appellate Court vide order dated 29.08.2023 (Annexure-5) allowed the application directing the petitioners- appellants to pay the mesne profit at the rate of Rs. 3,000/- per month from the date of the decree and also directed the petitioners-appellants to pay the arrears of the rent from 03.04.2014 and 04.08.2016 respectively and the petitioners being aggrieved of the same, preferred the present writ petitions.
3. Learned counsel for the petitioners submits that the learned Appellate Court has erred in passing the impugned order, as no (Downloaded on 28/02/2024 at 08:39:37 PM) [2024:RJ-JD:9920] (4 of 7) [CW-19830/2023] document/proof has been placed on record by the respondents- landlord in order to show that the rate of the rent has drastically enhanced as were unable to demonstrate before the Court the rate of rent to the tune of Rs.6,000/- per month for the adjacent shops.
4. Learned counsel for the petitioners also submits that the petitioners are not in a position to pay the rent at the rate of Rs.3,000/- per month from the date of the passing of the decree. He further submits that the petitioners are paying the rent to the tune of Rs.125/- per month and Rs.80/- per month respectively and the said rent has been enhanced straightaway to Rs.3,000/- per month, which shall cause serious prejudice to the petitioners, who are not in a position to pay the huge amount.
5. Learned counsel for the petitioners further submits that the mesne profit has been ordered to be paid by the petitioners since the date of the passing of the decree whereas if at all, the enhanced rent has to be paid in the form of mesne profit, it ought to have been directed to be paid with effect from the date of the passing of the stay order in favour of the petitioners.
6. Learned counsel for the petitioners also places reliance upon the judgment dated 07.11.2022 passed by the Punjab And Haryana High Court in the case of Naresh Kumar Jain Vs. Deepak Jain & Anr. reported in 2022(4) Law Herald 3434 and the judgment dated 07.11.2006 passed by the Hon'ble Court (Jaipur Bench) in the case of Babu Lal & Ors. Vs. Sant Kumar reported in 2007(2) RLW 964. He also places reliance upon the judgment dated 06.04.2016 passed by the Punjab and Haryana High Court in the case of Angoori Devi & Ors. Vs. Satya (Downloaded on 28/02/2024 at 08:39:37 PM) [2024:RJ-JD:9920] (5 of 7) [CW-19830/2023] Bhama reported in 2016(5) R.C.R.(Civil) 1043, the relevant part of the judgment is reproduced hereunder :-
"14. In my opinion, the argument of learned senior counsel for the non-applicant-petitioner-tenants cannot be accepted. It has to be kept in mind that the Courts are shown above have drawn a balance between the claims of the landlord and the tenant. Had it been a case where mesne profits were to be fixed at thee rate of market rent the argument could have prevailed but in the present situation where Courts have held the landlord entitled to reasonable compensation the amount payable would be from the date of the eviction order i.e. the date when the tenant's possession became illegal. This however could not be extended to a cae where for instance the landlord moves an application after inordinate period of delay. Resultantly, the period for which the amount would be payable must be restricted to 3 years."
7. Per contra, learned counsel for the respondents-plaintiffs submit that the impugned order has been rightly passed in favour of the respondents-plaintiffs as the petitioners are having the possession of the premises in dispute since last 50 years and the petitioners have preferred an appeal against the judgment and decree dated 03.04.2014 (Annex-1) and 04.08.2016 (Annex.-1) respectively passed by the learned Tribunal and looking to the enhanced rent of the premises in dispute and the appeal pending for last 10 years, the respondents-plaintiffs are entitled to receive the enhance rent amount.
8. Learned counsel for the respondents also places reliance upon the judgment dated 19.04.2005 passed by the Hon'ble Apex Court in the case of Anderson Wright And Co. Vs. Amar Nath Roy And Ors. reported in AIR 2005 SC 2457. The relevant part of the judgment is reproduced hereunder:-
"5. As held by this Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd., once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the (Downloaded on 28/02/2024 at 08:39:37 PM) [2024:RJ-JD:9920] (6 of 7) [CW-19830/2023] opinion of the appellate court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. It has also been held that with effect from the date of decree of eviction, 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 on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree."
9. Learned counsel for the respondents further submits that in light of the decision passed by the Hon'ble Apex Court in the case of Anderson Wright And Co. Vs. Amar Nath Roy And Ors (supra), the learned Appellate Court has rightly directed the petitioners to pay the enhance rent with effect from the date of the passing of the judgment and decree. He further submits that the petitioners' contention that the rent of the adjacent shop in dispute is much lower to the rent claimed by the respondents- plaintiffs i.e. Rs. 6,000/- is not sustainable as the petitioners have failed to submit any proof before the learned Appellate Court to show that the rent is much lower than the rent claimed by the respondents-plaintiffs.
10. Learned counsel for the respondents further submits that the shop in dispute is located in the prime locality on Udaipur road and thus, the respondents are unable to receive the enhance rent and thus the learned Appellate Court has rightly passed the order.
11. Heard learned counsel for the parties and perused the material available on record and the judgments cited by learned counsel for the parties.
12. This Court finds that the petitioners have not placed on record, neither before the learned Appellate Court nor before this Court, any proof in order to show that the rent of the adjacent (Downloaded on 28/02/2024 at 08:39:37 PM) [2024:RJ-JD:9920] (7 of 7) [CW-19830/2023] shops is much lower than the rent claimed by the respondents- plaintiffs. The submission of learned counsel for the petitioners that the mesne profit that has been ordered by the learned Appellate Court to be paid by the petitioners with effect from the date of the judgment and decree dated 03.04.2014 (Annexure-1), and 04.08.2016 (Annexure-1) respectively is erroneous, is also not sustainable as it has been held by the Hon'ble Apex Court in the case of Anderson Wright And Co. Vs. Amar Nath Roy And Ors (supra) that with effect from the date of decree of eviction, 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 on being vacated by the tenant. It is also seen that the Hon'ble Apex Court in the case of Anderson Wright And Co. Vs. Amar Nath Roy And Ors (supra) has held that while determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree. The judgments cited by the learned counsel for the petitioners are not applicable in the present case.
13. As a consequence, no interference is called for in the order dated 29.08.2023 (Annexure-05) passed by the learned First Appellate Court, Pindwara, therefore, the instant writ petitions fail and are dismissed as being devoid of any merit.
14. Stay applications as well as all other pending applications, if any, also stand rejected accordingly.
(DR. NUPUR BHATI),J 334-335-ajay/surabhi-
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