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2006 DIGILAW 3228 (RAJ)

Diwakar and Company v. Mohan Kishore Sharma

2006-12-15

NARENDRA KUMAR JAIN

body2006
JUDGMENT 1. - Heard learned counsel for both the parties on the stay application under Order 41 Rule 5 read with Section 151 of the Code of Civil Procedure, 1908. 2. Learned counsel for the defendant-appellants submits that the second appeal has already been admitted by this Court on 25.10.2005, therefore, the ex-parte interim stay order granted against eviction decree may be confirmed till the final disposal of the second appeal. 3. Learned counsel for the plaintiff-respondent contended that the plaintiff-respondent filed a suit for eviction in respect of the rented shop, which has been decreed by both the Courts below, therefore, only on the ground that the appeal has been admitted, the interim stay order should not be confirmed and in alternate, he contended that in case this Court confirms the interim stay order, then at least the mesne-profit as per prevalent market rate of the monthly rent of the rented shop may be fixed to be paid by the appellant during pendency of this appeal. 4. So far as the fixation of mesne profit during the pendency of the appeal in the eviction matter is concerned, there is no dispute in between both the parties that the same can be fixed under Order 41 Rule 5 of the C.P.C., in view of law laid down by the Hon'ble Supreme Court in the cases of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 , Anderson Wright and Company v. Amar Nath Roy, 2005 DNJ (SC) 562 , Achal Misra v. Rama Shanker Singh and Others (2005) 5 SCC 531 , Crompton Greaves Limited v. State of Maharashtra (2005) 11 SCC 547 and judgment given by this Court in Mandan Bansal v. Ramnarayan Sharma, reported in R.L.R. 2006 (1) 733 . 5. The question for consideration is only as to whether the interim stay order against the eviction decree should be confirmed or not and another question is as to what should be the amount of mesne profit in case the interim stay order is confirmed. 6. 5. The question for consideration is only as to whether the interim stay order against the eviction decree should be confirmed or not and another question is as to what should be the amount of mesne profit in case the interim stay order is confirmed. 6. So far as the confirmation of interim stay order in respect of eviction matter is concerned, I am of the view that once the appeal is admitted, then the eviction decree should be stayed, otherwise the appeal itself may become infructuous, therefore, I confirm the interim stay order passed by this Court, so far it relates to eviction of appellant from disputed shop is concerned, but it will be subject to payment of mesne profit. 7. So far as the amount of mesne profit is concerned, learned counsel for both the parties have filed affidavits mentioning therein the monthly rent of the adjacent shops for the purpose of determination of the monthly mesne profit of the disputed shop. 8. Learned counsel for the defendant-appellants has filed affidavits in respect of 15 shops, wherein, he has given the names of the premises, total area in sq. ft., of the rented premises and monthly rent of the premises, which are as under:- S.No. Names of the Premises Total Area(Sq.Ft) Monthly Rent (Rs.) 1. Tyre Treads, Sharma Building 1400 632/- 2. New Moti Stores, Sharma Building 600 688/- 3. M/s.Empire Stores, Sharma Building 900 564.62/- 4. Ambassadors Dry Cleaners, Sharma Cleaners, Sharma Building 1500 7,500/- 5. M/s. Mittal Sports, Gulab Niwas 400 1,075/- 6. Dr. R.K. Soni, Bawaria Building 900 1,000/- 7. Delhi Stationers, Gulab Niwas 1450 2,200/- 8. Swastika Automobiles, Gulab Niwas 1500 7,500/- 9. India Engg. Co., Gulab Niwas 224 826.10 10. Jindal and Co.(Kasliwal Building Panch Batt) 450 225/- 11. Imperial Furniture, Tiwari Building 900 4,655/- House Tax 12. Textorium, 376 M.I. Road 1000 850/- 13. Indian Coffee House, Regal Building 3500 5000/- 14. Swastik Motors, 367, M.I. Road 750 2400/- 15. Prabhat Enterprises Noor Building 750 3000/- 9. Learned counsel for the plaintiff-respondent has filed affidavit, wherein he has also given the details of seven rented property, area in square fit, occupied by the tenant, rate of rent in square fit, which are as under:- S.No. Tenant/Property Area/Floor Rate of Rent (in Rs. Per Sq.ft. Original/Date 1. Mrignayani, Adjacent to Suit shop, M.I. Road. 700 sq.ft 38.57/1.7.02 2. Lord Krishna Bank,GI-GS, Subhash Marg. Per Sq.ft. Original/Date 1. Mrignayani, Adjacent to Suit shop, M.I. Road. 700 sq.ft 38.57/1.7.02 2. Lord Krishna Bank,GI-GS, Subhash Marg. 2922 sq.ft. 42.00/22.08.00 3. HDFC Bank, Plot No.012/B, Ashok Marg, C-Scheme 3200 sq.ft. 45.00/12.12.00 4. I.D.B.I. Bank Ltd., Opp. All India Radio. 5120 sq.ft. 50.00/19.6.97 5. Federal Bank, Near Laxmi Motor Company. 3735 sq.ft. 23.09/18.12.93. 6. City Bank, Govt. Hostel 2678 sq. ft. 95.00/01.01.01. 7. UTI Bank, Panch Batti Circle 56 sq.ft. 339.28/18.7.01. 10. So far as the disputed shop is concerned, the same was let-out in the year, 1955 at the rate of monthly rent of Rs.169/- which was increased to Rs.600/- per month in the year, 1988. The total area of the disputed shop is 600 square fit according to the appellant, whereas it is 720 square fit, according to the respondent. Admittedly, the shop is situated at M.I. Road, Jaipur City, which is one of the prime location of the Jaipur City. 11. Although details of number of rented shops have been furnished on behalf of the appellants, but Counsel for appellant has referred details of two shops specifically let out to "Ambassador Dry -cleaners", at the rate of Rs.7,500/- per month and the total area of the rented premises is 1500 sq.ft. The another rented premises let out to Swastika Automobiles measuring 1500 sq.ft, for which the monthly rent is Rs.7,500/-, therefore, it comes around Rs.5 per sq.ft. If the amount of the present shop is calculated at the rate of Rs.5 per sq.ft., then it comes to Rs.3,000/- per month approximately. However, during the course of arguments, learned counsel for the defendant-appellant contended and agreed that the mesne profit of the disputed shop may be fixed at the rate of Rs.10,000/- per month. 12. Learned counsel for the appellant has further contended that the gross turn-over of the appellant company is Rs.17.53 lacs per year and if 10% out of it is taken as profit, then total income of the appellant is approximately Rs.2 lacs per year and his entire family is dependent on the income earned from the business which is running on this shop. His contention is that the monthly mesne profit should not be fixed in such a manner that he may not be able to pay the same and it may amount to eviction of the appellant particularly when this Court has already admitted his second appeal. 13. His contention is that the monthly mesne profit should not be fixed in such a manner that he may not be able to pay the same and it may amount to eviction of the appellant particularly when this Court has already admitted his second appeal. 13. The respondent has filed affidavit, wherein he has given the details in respect of the properties let out mainly to Banks, namely; Mriganayni, Lord Krishna Bank, H.D.F.C. Bank, I.D.B.I. Bank, Federal Bank, City Bank and U.T.I. Bank and from his affidavit, it reveals that the minimum rent in nearby area is about Rs.35/- per sq.ft., and if the mesne profit of the disputed shop is calculated at the rate of Rs.35/- per sq.ft., then it comes around Rs.21,000/- per month. So far as the affidavit filed by the appellant is concerned, the learned counsel for the respondent contended that the appellant has shown the monthly rent of the nearby rented premises, which were let out during the period from 1951 to 1959 and the same cannot be treated as the prevalent market rate of the monthly rent to determine mesne profit of the disputed shop. 14. After considering the submissions of learned counsel for both the parties as well as the affidavits filed on record, I am of the view that the interim stay order passed by this Court dated 25.10.2005 is liable to be confirmed and the same is hereby confirmed during the pendency of this appeal on the following terms and conditions:- 1. The appellant shall pay all the arrears of mesne-profit due till 30.11.2006 at the rate of Rs.600/- per month within one month from today and he will further continue to pay the mesne profit at the rate of Rs.11,000/- (Rupees Eleven thousand only) per month w.e.f., 01st December, 2006, by 15th day of each succeeding month, in the bank account of the respondent, the details of which will be furnished by the respondent within a period of two weeks, failing which it will be open for the appellant to deposit the amount in the trial Court. 15. 15. It is made clear that in case the appellant fails to deposit the arrears of mesne profit, as directed above within one month from today or fails to pay the future mesne profit as directed above w.e.f. 01.12.2006 for consecutive two months, then it will be open for the respondent to get the decree passed in his favour executed even during the pendency of the second appeal. 16. The stay application accordingly stands disposed of.Application disposed of. *******