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2007 DIGILAW 744 (RAJ)

Om Prakash v. Umrao

2007-04-10

VINEET KOTHARI

body2007
JUDGMENT 1. - The respondents have filed an application under Section 151 C.P.C. for enhancement of the mesne profits. There are two shops in question situated at Near Bus-stand at Kotputali just near the National Highway No. 8. In the application, the plaintiff-respondents have prayed for enhancement of mesne profits to the extent of Rs. 20,000/- per month. Learned counsel for the respondents submits that in fact, the hops in question have been sub-let to the other parties for carrying on business of liquor shop and the defendant-appellant is earning a rent of Rs. 20,000/- per month. However, the evidence produced along with the application indicates that the prevalent market rate for rent of one shop of the nearby shop is Rs. 4,000/- to Rs. 4,500/- per month. 2. Opposing this application, the learned counsel for the appellant, Mr. Bhandari, has submitted that the prevalent market rate for rent of the shops in the nearby area on the same road is Rs. 500 to Rs. 900/- per month only. He has produced before this Court a copy of the order dated 13.1.2003 in a civil suit No. 7/02 in a eviction matter where the court has fixed mesne profits to the extent of Rs. 5001- per month. He also contends that since the trial court has fixed the mesne profits in the present case also, there is no occasion to enhance the mesne profits at this stage. 3. 5001- per month. He also contends that since the trial court has fixed the mesne profits in the present case also, there is no occasion to enhance the mesne profits at this stage. 3. Learned counsel for the respondent has brought to the notice of this Court a judgment of this Court in the case of Babu Lal and Others v. Sant Kumar, reported in 2007 (2) RLW 962 wherein this Court while dealing with the powers of the appellate court under Order 41 Rule 5 C.P.E. has clearly laid down following the judgments of the Hon'ble Supreme Court in the case of Atma Ram Properties (P) Limited v. Federal Motors (P) Limited, reported in 2005 (1) WLC (SC) Civil 340 : (2005) 1 SCC 705 and Anderson Wright & Company v. Amar Nath Roy, reported in 2005 DNJ (SC) 562 that the appellate court has jurisdiction to put the applicant under Order 41 Rule 5 of C.P.C., on such reasonable terms as would, in its opinion, reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by grant of stay order, while passing the stay order in his favour, in the event of the appeal being dismissed. The Court held in Para 9 that as per the provisions of Section 151 of the C.P.C., it is clear that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make stay order as may be necessary for the ends of justice or to prevent abuse of the process of the Court. 4. The mesne profit is the compensation to the landlord. It is required to be paid during the pendency of the appeal to compensate him in the monetary terms while he is deprived of the user of the property as the list is pending in the appellate court. In the present case, the mesne profits were fixed by the trial court as Rs. 400/- per month vide order dated 26.7.1988. Almost nineteen years have already rolled by and still the final hearing of the present second appeal is not nearby and it may take few years time for hearing and deciding the present appeal. In the present case, the mesne profits were fixed by the trial court as Rs. 400/- per month vide order dated 26.7.1988. Almost nineteen years have already rolled by and still the final hearing of the present second appeal is not nearby and it may take few years time for hearing and deciding the present appeal. This Court finds no justification in the argument of the appellant-tenant that in such a lengthy period of time, the landlord should be deprived of making a prayer to the Court for enhancement of the mesne profit. The argument of Mr. Bhandari is, therefore, devoid of any merit and is liable to be rejected. 5. Coming to the facts of the case on weighing the pros and cons about prevalent market rate of the rent in the present case, this Court is of the opinion that fixing the mesne profit at Rs. 8,000/- per month w.e.f. 1.5.2007 would meet the ends of justice. Accordingly, it is directed that the appellant shall pay the mesne profit at Rs. 8,000/- per month commencing from 1.5.2007 to the respondents before 15th of next month regularly during the pendency of this appeal. If there is any default in payment of mesne profit, the stay order granted by this Court on 9.10.2001 shall stand vacated and the respondents shall be free to execute the decree in their favour. The respondents shall supply their bank account number to the appellant within a period of two weeks from today in which they want the aforesaid mesne profit to be deposited.The application is accordingly disposed of.Application Disposed of as Above. *******