The High Court at Jodhpur dismissed a writ petition challenging an order imposing mesne profit of Rs.3,000/- per month pending appeal. The court held the amount was reasonable given the premises size and local rates, and refused interference under Article 227.
The writ petition was dismissed as it had no substance; no costs awarded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
: O R D E R :
S.B. CIVIL WRIT PETITION NO.958/2013
(Sushil Kumar Vs. Lirs of Smt. Ranjana Ben & Ors.)
Date of Order
01st February, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr. Rajesh Joshi, for the petitioner.
BY THE COURT:
This writ petition has been filed by the petitioner–tenant aggrieved by order dated 19.12.2012 passed by the learned appellate court on his application filed under Order XLI, Rule 5 CPC, whereby, he was directed to pay amount of mesne profit @ Rs.3,000/- per month during pendency of the appeal from the date of filing of the appeal.
The facts of the case are that the petitioner is said to be in possession of the suit premises as tenant since 1972 at a rent of Rs.150/- per month. A suit for eviction was filed by the landlordrespondent in the year 1988 and a decree was passed on 21.09.2011 by the trial court ordering for eviction of the petitioner.
Against the said judgment and decree dated 21.09.2011, the petitioner filed an appeal before the Court of Additional District Judge, Abu Road, District Sirohi alongwith an application
2
under Oder XLI, Rule 5 CPC seeking stay of the execution of the decree under appeal. It was stated in the application that the petitioner had prima facie case and if the execution is not stayed then he would suffer irreparable injury.
The application was opposed by the respondent-landlord, besides other submissions, it was stated as under:-
“ब)क� अप�र�गण �� पर�स� आब�पर�त �� व�सतम क�त म� ससरत ह� स स�� म�ल���" न ए� ��%ड स� अध(� ह� स स�� म�सस� क����� 5000/-स� अध(� आ स�त� ह�। स)क� अप�र�गण न� सन+ 1972 म� 150/- म�सस� �, द� स� क����� प� पर�स� दद�� र�। रर� 1972 �� ब�द म"हग�ई 50 ग1ण� स� ज��द� ह1ई ह� तर� म3न �� भ3 भ�र बढ� ह� स सस� अप3ल �� लस7बत �हत� ह1�� अप�र�गण रप�� 5000/-स� पततम�ह �, द� स� पर�स� �� उप�%ग उपभ%ग �, ��श3 प�प ��न� �� अध(���= ह�। र�द-गसत पर�स� म� द% �म��, क�चन,द% ब��मद� र स@%� रम हA ब�सम�@ म� ए� रम, ए� क�चन र ब�ररम हA र आस प�स �, म3न प� अततकमण हA"
The learned first appellate court after hearing the parties was of the opinion that it is revealed from the record that the tenancy is from the year 1972 or from before it and the tenant has been paying rent @ Rs.150/- per month only and if for a premises like a disputed premises in a place like Mount Abu, which is a tourist place, it cannot be disputed that the fair rent would be Rs.3,000/- to Rs.5,000/-.
In that view of the matter, the Court passed the order for payment of mesne profit @ Rs.3,000/- per month from the date of filing of the appeal.
It was contended by learned counsel for the petitioner that
3
the order impugned is ex facie without any basis as the learned trial court without any material available before it, has enhanced the rent from Rs.150/- per month to Rs.3,000/- per month as mesne profit. In fact the amount is 20 times the amount of rent which is wholly unjustified and the same, therefore, deserves to be quashed and set aside.
I have considered the submissions made by the learned counsel for the petitioner and perused the material placed on record.
In a case of present nature, it is well within the discretion of the first appellate court to pass orders on application for stay of execution of decree and impose conditions which is deemed just and proper in the facts, circumstances and material available on record of each case. Admittedly, the petitioner is tenant in the premises in question for over four decades and is paying a meager rent of Rs.150/- per month. From the averments of the reply filed by the landlord, it appears that the premises in question has two rooms, kitchen, two verandas and store room besides one room, one kitchen and bath room in the basement and for such accommodation mesne profit @ Rs.3,000/- per month cannot be said to be unreasonable.
Therefore, in the facts and circumstances of the case, it cannot be said that the learned first appellate court has committed any error in ordering payment of mesne profit @ Rs.3,000/- per month. Even otherwise, looking to the facts and circumstances of the case, this Court is not inclined to interfere in exercise of its jurisdiction under Article 227 of the Constitution
4
of India.
In the result, the writ petition has no substance and the same is, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-
2 issues framed by the court
Whether the first appellate court erred in ordering payment of mesne profit at Rs.3,000/- per month under Order XLI Rule 5 CPC while hearing stay application.
Whether this Court should exercise jurisdiction under Article 227 of the Constitution to interference with the order imposing mesne profit conditions.
2 provisions across 2 enactments
Sushil Kumar
Lirs of Smt. Ranjana Ben & Ors.
Arun Bhansali
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
