Rajasthan High Court
Shri Kishan Heda S/O Shri Mankaran ... vs Manmeet Singh S/O Late Shri Dalip ... on 2 March, 2022
Bench: Sudesh Bansal
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
(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
(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
(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
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