Rajasthan High Court - Jodhpur
Sh. Fusa Ram 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.
(Downloaded on 28/02/2024 at 08:39:38 PM)
[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:-
[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
[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
[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
[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
[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-
Powered by TCPDF (www.tcpdf.org)
