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2010 DIGILAW 1008 (MP)

Shabbar Hussain v. Ram Dayal

2010-10-04

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A.K. Shrivastava, J. -- 1. By this petition under Article 227 of the Constitution of India, the petitioners are challenging the validity of the impugned order dated 22.5.2010 passed by learned District Judge, Sheopur in Civil Appeal No. 35/2010 whereby the application under Order 41 Rule 5 CPC filed on behalf of petitioners/defendants has been allowed imposing certain conditions. 2. Sans unnecessary details, the facts lie in narrow compass. Suffice it to state that an eviction decree dated 11.5.2010 on grounds envisaged under sections 12 (1) (a) and (b) of the M.P. Accommodation Control Act, 1961 has been passed by learned trial Court in favour of plaintiff/respondent No.1. 3. Assailing the said decree the defendants/petitioners filed a first appeal under section 96 of CPC alongwith an application under Order 41 Rule 5 of CPC for grant of stay of execution of the eviction decree in the lower appellate Court. The said application has been vigorously opposed by the plaintiff by filing the reply. 4. The learned First Appellate Court by the impugned order has allowed the application on certain conditions. Hence, this petition under Article 227 of the Constitution of India has been filed by the defendants against those conditions. 5. The contention of learned senior counsel is that the rate of rent of the suit shop is Rs. 140/- per month and by the impugned order learned First Appellate Court has directed to deposit mesne profit at the rate of Rs. 7,000/- per month which is exorbitant and contrary to law. Learned senior counsel has placed heavy reliance on the latest pronouncement of the decision of Supreme Court Bihar School Examination Board V. Suresh Prasad Sinha, (2009) 8 SCC 483 . Learned counsel has also placed reliance on the decision of Supreme Court Niyas Ahmad Khan v. Mahmood Rahmat Ullah Khan and another, (2008) 7 SCC 539 . Learned senior counsel submits that proper reasons have not been assigned by learned First Appellate Court directing petitioners to deposit mesne profit at the rate of Rs. 7,000/- per month of the suit shop. 6. On the other hand, Shri Rathore, learned counsel for the plaintiff/respondent No. 1 argued in support of the impugned order and has submitted that very cogent reasons have been assigned by learned First Appellate Court directing to deposit mesne profit at the rate of Rs. 7,000/- per month of the suit shop. 6. On the other hand, Shri Rathore, learned counsel for the plaintiff/respondent No. 1 argued in support of the impugned order and has submitted that very cogent reasons have been assigned by learned First Appellate Court directing to deposit mesne profit at the rate of Rs. 7,000/- per month with effect from the date of judgment of learned Trial Court viz 11.5.2010 till the decision of the appeal. Learned Counsel further submits that after a long drawn litigation and fighting for near about more than three decades the suit has been decreed. The respondent was inducted as tenant in the year 1950 viz. 60 years ago and, therefore, considering all these facts learned First Appellate Court has rightly fixed and directed the petitioners to deposit mesne profit at the rate of Rs. 7,000/- per month from the date of the passing of the judgment by learned trial Court. Learned counsel has invited our attention to certain affidavits which were filed alongwith the cross-objections by plaintiff/respondent in which it has been stated by the deponent that the suit shop will fetch Rs. 12,000/- per month. Learned counsel has also placed heavy reliance on the decision of Supreme Court Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705 . Learned counsel has also placed reliance on another decision of Supreme Court Marshall Sons & Co. (I) Ltd, v. Sahi Ore trans (P) Ltd. and another, (1999) 2 SCC 325 . By distinguishing the decision of latest pronouncement of Bihar School Examination Board (supra) placed reliance by learned senior counsel for the petitioners it has been contended by learned counsel that the point for consideration before the apex Court was not within the scope of Order 41 Rule 5 CPC, but the Supreme Court interpreted the provisions of sections 2 (1) (o) and 2 (1) (d) of the Consumer Protection Act and, therefore, the said decision is not applicable. Further by placing reliance on the Constitutional Bench decision of this Court in Jabalpur Bus Operators Association and others v. State of M.P. and another, 2003 (1) JLJ 105 it has been contended that the decision of Atma Ram Properties (P) Ltd. ( supra) was not taken into consideration in Niyas Ahmad Khan ( supra) and, therefore, the said decision cannot be taken into consideration. Hence, it has been prayed that this petition be dismissed. 7. Having heard learned counsel for the parties we are of the considered view that this petition deserves to be dismissed. 8. From the judgment and decree of learned Trial Court dated 11.5.2010, it appears that the predecessor of the defendants was the original tenant and he was inducted somewhere in the year 1950. From the judgment of learned trial Court, it is further gathered that the suit was filed on 23.3.1979 and the decree of eviction has been passed by learned trial Court on 11.5.2010, which would mean after having a long fight of more than three decades the said decree has been passed. On the date of filing of suit the rate of rent appears to be Rs. 140/- per month. From the impugned judgment as well as pleadings of the parties and the affidavits which are filed along with the cross-objections by the plaintiff/respondent before learned Appellate Court, we find that the suit shop is situated in main market in the city of Sheopur. On going through the' affidavit of Rajendra Singhal which has been filed alongwith the cross objections by the plaintiff/respondent, we find that he is the tenant of plaintiff on the ground-floor in a shop in which he is carrying on the business of cold drinks and the rate of rent is Rs. 6,000/- per month. Further it is found in the said affidavit that the size of the suit shop is just double to the size of the shop which is occupied on tenancy basis by Rajendra Singhal. In the suit shop petitioners/defendants are carrying on the business of iron and if the said shop is given on tenancy basis, it will fetch the rent of Rs. 12,000/- to Rs. 15,000/- per month. The factum of paying rent @ Rs. 6,000/- per month by this Rajendra Singhal also finds place in the account books of plaintiff, the copies of which are filed alongwith the cross-objections and, therefore, prima facie the affidavit given by Rajendra Singhal mentioning the rate of rent of Rs. 6,000/- per month appears to be correct. It has also been stated in the affidavit that the size of the shop of Rajendra Singhal is half to the size of the tenanted premises. Thus, there is overwhelming material that the suit shop will certainly fetch up the rent of Rs. 6,000/- per month appears to be correct. It has also been stated in the affidavit that the size of the shop of Rajendra Singhal is half to the size of the tenanted premises. Thus, there is overwhelming material that the suit shop will certainly fetch up the rent of Rs. 10,000/- to Rs. 12,000/- per month since it is situated in the heart of the city of Sheopur and the size of the suit shop is just double to the shop of Rajendra Singhal. Learned First Appellate Court has directed the petitioners/defendants to deposit mesne profit at the rate of Rs. 7,000/- per month which is on lower side. But, since the plaintiff/respondent No. 1 has not assailed the order passed by learned Appellate Court, we find that there is no justifiable reason to fix the mesne profit much less than as directed by learned First Appellate Court. On going through the impugned judgment, it is gathered that in the suit shop business of iron is being carried out and, therefore, according to us, learned Appellate Court did not err in imposing the conditions mentioned in the impugned order including the condition to deposit the mesne profit at the rate of Rs. 7,000/per month from the date of judgment of Trial Court viz. 11.5.2010. 9. On bare perusal of Order 41 Rule 5 CPC, we find that Appellate Court is having ample powers to impose certain conditions, but those conditions should be reasonable and should not be onerous. Since there is overwhelming material placed on record that the suit shop would fetch more than the rent of Rs. 7,000/- per month if it is let out today, therefore, while exercising powers under Order 41 Rule 5 CPC learned Appellate Court did not err in imposing the condition directing defendants/petitioners to deposit mesne profit at the rate of Rs. 7,000/- per month. As a matter of fact, the decree-holder/plaintiff is entitled to reap the fruits of decree passed in his favour, but since an appeal has been filed and an application for staying the execution of the eviction part has also been filed, reasonable conditions have to be imposed and the learned First Appellate Court by assigning very cogent reasons has fixed the mesne profits at the rate of Rs. 7,000/- per month in order to safeguard the interest of plaintiff/respondent No. 1 as well, if the appeal is otherwise found to be meritless and is required to be dismissed by the said Court. 10. The scope of Order 41 Rule 5 CPC has been taken into consideration in the decision of Supreme Court Atma Ram Properties ( P) Ltd. (supra) para 18 in which an earlier decision of Supreme Court Marshall Sons & Co. (I) Ltd. (supra) has been relied upon in which the apex Court has directed to deposit mesne profits at quite higher rate looking to the facts and circumstances that tenant was inducted long back and if during those days quite lesser rate of rent was prevailing, it cannot be equated with the present rate of rent. These decisions are fully applicable in the present case also. 11. The decision of Bihar School Examination Board (supra) placed reliance by learned senior counsel for petitioner is not against the plaintiff because in that decision also in para 13 and 14 it has been held that the order should be reasonable. We have already mentioned hereinabove that cogent reasons have been assigned by learned First Appellate Court based on overwhelming material while fixing the mesne profit at the rate of Rs. 7,000/- per month. So far as the decision of Niyas Ahmad Khan (supra) is concerned, the said decision is not applicable because the point in dispute in that decision was about the fixation of fair rent and in that decision the scope of Order 41 Rule 5 CPC was not in question. 12. For the reasons assigned hereinabove, we did not find any merit in this petition. The same is hereby dismissed with costs. Counsel fee Rs. 3,000/ -, if pre-certified.