Rajasthan High Court
Makhan Lal And Ors vs Durga Prasad And Ors on 29 April, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No. 617/2003
Makhan Lal son of Hajari Lal, now deceased through his legal
heris:
1/1. Pawan Kumar son of late Sh. Makhan Lal
1/2. Mahendra Kumar son of Late Sh. Makhan Lal
1/3. Suresh Kumar son of late Sh. Makhan Lal
1/4. Smt. Genda Devi wife of Shri. Makhan Lal
All resident of Srimadhopur, District Sikar.
----Appellants/Defendants
Versus
Durga Prasad son of Nanu Lal, deceased thorugh his legal heris:-
1/1. Smt. Durgi wife of Shri Durga Prasad
1/2. Budhi Prakash son of Shri Durga Prasad
1/3. Sanwar Mal son of Shri Durga Prasad
1/4. Mohan Das son of Shri Durga Prasad.
1/5. Kusum daughter of Shri Durga Prasad
1/6. Asha daugther of Shri Durga Prasad
1/7. Beena daughter of Shri Durga Prasad
All resident of Srimadhopur, District Sikar.
----Respondents/Plaintiffs
For Appellant(s) : Mr. Anil Mehta, Sr. Advocate assisted
by Mr. Siddharth Bapna
For Respondent(s) : Mr. Gaurav Gupta
Mr. Gajendra Vyas through VC
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
29/04/2022
1. Learned counsel for appellants-tenants has argued that in
relation to the rented shop in question the issue of partial eviction
was not considered by two courts below, hence a substantial
question of law was framed by this Court.
(2 of 4) [CSA-617/2003]
2. It is not in dispute that the tenancy of appellants-tenants
begun with effect from 27.12.1975 and the eviction suit was led
on 02.11.1979.
3. Both courts below have passed decree for eviction against
appellants-tenants on the ground of bona fide and reasonable
necessity and have considered the issue of comparative hardship,
however, courts below could not ponder over the issue of partial
eviction, apparently for the reason that neither of the party raised
any issue of partial eviction in their respective pleadings before
the trial court.
4. During course of argument of this appeal, considering the old
tenancy of appellants-tenants in the rented shop, appellant who is
present in person made a gentle and bona fide offer that in case,
some reasonable time is granted to vacate the rented premise,
they will shift their running business in alternative place and would
hand over the vacant possession of rented premise to the landlord
and will not press the second appeal on merits. He further submits
that appellants-tenants are using the rented shop for carrying on
a commercial business since long so they need at least two and a
half year's time to vacate the rented premise. He admits that
though while granting such time some mesne profit for the
intervening period may be fixed at some higher rate than the rate
which has already been fixed.
5. Learned counsel for respondents, immediately accepted the
aforesaid proposal, as the same seems to be in the interest of
respondents-landlords.
6. Without going on merits of appeal, as per respective
proposal and acceptance of counsel for both parties, which have
been made on behalf of and in the interest of both the parties,
(3 of 4) [CSA-617/2003]
while maintaining the decree for eviction passed against
appellants-tenants, this second appeal is disposed of on following
agreed terms:-
(i) The tenants shall be entitled to continue in
occupation and use of the tenanted premises in
question till 31st October, 2024, subject to condition
that he would hand over the vacant possession of the
premises in question to landlords on or before 31 st
October, 2024.
(ii) The tenants shall deposit the arrears of mesne
profit as determined by this Court, if any, within a
period of two months from today and will continue to
pay the mesne profit @Rs.10,000/- per month from
May, 2022 up to October, 2024.
(iii) The tenants shall not alienate or otherwise create
third party right, or hand over possession of the
tenanted premises in question to any other person.
(iv) That all appellants shall furnish an undertaking, either
jointly or severally, incorporating aforesaid conditions,
before the trial court within a period of four weeks, from
the date of this order with an advance copy to landlords."
In case the appellants-tenants fail to submit the undertaking as
aforesaid, and/or commit breach any of the conditions of this order, the
landlords shall be entitled to initiate immediate execution of judgment
and decree to obtain possession of premises in issue forthwith in
accordance with law and may also initiate proceedings of contempt for
breach of undertaking.
7. Since, the appeal itself has been finally disposed of, no need to
pass any separate order on the pending application filed under Order 1
Rule 10 CPC & the same stands dismissed as having redundant
automatically.
(4 of 4) [CSA-617/2003]
8. Stay application and any other pending application(s), if any, also
stand(s) disposed of.
(SUDESH BANSAL),J
SACHIN/81
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