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2011 DIGILAW 1493 (RAJ)

Late Kasturi Devi v. Agyapal Singh Chabra Ajmer

2011-07-26

MAHESH BHAGWATI

body2011
JUDGMENT 1. - Challenge in this writ petition is to order dated 6th August, 2010 rendered by the learned District Judge, Ajmer, whereby he ordered the petitioner - tenant to pay mesne-profit @ Rs. 5000/- (Rs. Five Thousand) per month to the landlord Agyapal Singh Chabra. 2. Heard the learned counsel for the parties and carefully perused the relevant material on record. 3. Having considered the submissions made at the bar and carefully perused the impugned order, it is noticed that a judgment and decree with regard to eviction of the premises came to be passed by the learned trial court on 15th May, 2010. Aggrieved with this judgment and decree, the petitioner-tenant preferred an appeal. The learned appellate court having considered the submissions of both the parties, directed the petitioner-tenant to pay an amount of Rs. 5000/- per month as mesne-profits to the landlord-respondent. 4. Learned counsel for the petitioner canvassed that the impugned order is arbitrary, perverse and not based on any material on record. He further contended that the landlord - decree holder did not produce any evidence with regard to the value or the prevailing rent of the premises, where the same is being situated, despite that the learned appellate court ordered Rs. 5000/- to be paid as mesne-profits by the tenant to the landlord - decree holder. 5. E Converso, the learned counsel for the respondents defended the impugned order and stated the same to be just and apt. 6. Having considered the submissions of learned counsel for the parties and carefully scanned the relevant material on record, it is noticed that the Hon'ble Apex Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., reported in (2005) 1 SCC 705 held that the appellate court is required to pass an order with regard to mesne-profits based on the robust common-sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record. The Hon'ble Apex Court further held that, there is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. 7. The Hon'ble Apex Court further held that, there is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. 7. Adverting to the facts of the instant case, it is noticed that the appellate court considered all the aspects ad-longum. The appellate court not only considered the facts of the case and the attending circumstances, but applied his own experience and the common knowledge with regard to the situation of the suit premises. It has been observed by the learned District Judge that the suit premises are divided in two parts and they are being occupied by the petitioner-tenant since the last 40 years. It has been categorically indicated in the order that the suit premises are located in the main commercial area of the city Ajmer, which has got a high commercial value and keeping in view all these circumstances and applying his personal experience and knowledge, ordered an amount of Rs. 5000/- per month to be paid by the petitioner tenant to the respondent - landlord as mesne profits. The impugned order, as argued by the learned counsel for the petitioner, is not found to be arbitrary or perverse, conversely it seems to be just and apt, which to my firm view, warrants no intervention. 8. Jurisdiction under Article 227 of the Constitution cannot be invoked to upset the pure findings of fact. Under Article 227 of the Constitution, this Court is expected and required to exercise extraordinary jurisdiction only in a case where the impugned order is found to be totally perverse, contrary to material on record or it results in manifesting injustice. 9. In view of above, the writ petition fails and the same being bereft of any merit stands dismissed. However, the learned trial court is directed to decide the suit finally within a period of three months. 10. Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and that also stands dismissed.Petition dismissed. *******