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2012 DIGILAW 1152 (RAJ)

Mehta Cycles v. Ram Kripal

2012-05-07

MAHESH BHAGWATI

body2012
Hon'ble BHAGWATI, J.—Challenge in this writ petition is to the orders dated 12.3.2012 whereby the learned Additional District Judge No.3, Ajmer albeit adjourned the case to 8.5.2012, but granted liberty to the defendants-petitioners to initiate the execution proceedings before the trial court and the order dated 17.3.2012, whereby he determined the mesne profits of the suit premises to be Rs. 10,000/- for the period w.e.f. 14.11.2006 to March, 2012 and Rs. 13,000/- for the period w.e.f. 1.4.2012 till disposal of the appeal. 2. Shorn of unnecessary details, the facts giving rise to the instant writ petition are succinctly stated thus: “The plaintiff-respondent Shri Ram Kripal filed a suit against the petitioners-defendants for eviction and recovery of rent. The said suit was decreed by the trial court vide judgment and decree dated 14.11.2006. Feeling aggrieved by the aforesaid judgment and decree, the petitioners preferred an appeal in the Court of District Judge, Ajmer, which came to be transferred to the court of Additional District Judge No.3, Ajmer. The learned appellate court vide order dated 12.3.2012 granted liberty to the respondent to get the decree executed in view of retraction of consent/undertaking by respondent and the learned appellate court vide its order dated 17.3.2012 while staying the execution of judgment and decree, determined the mesne profit, as indicated here-in-above.” 3. Heard the learned counsel for the parties and carefully perused the relevant material on record. 4. Learned counsel for the petitioners contended that the landlord – decree holder did not produce any evidence with regard to the value or the prevailing rent of the surrounding premises of the area, where the suit premises is situated, yet the appellate court determined Rs. 13,000/- per month to be the mesne-profits, to be paid by the petitioner-tenant to the landlord – decree holder, which was very much exorbitant and abysmally high. Learned counsel further contended that albeit the learned appellate Tribunal had discretion to pass order with regard to mesne-profit, but it must be based upon reasonableness and while staying the operation of the judgment of the Rent Tribunal, an unreasonable condition should not be imposed upon the tenant. Learned counsel cited the judgment of this High Court, where the Coordinate Bench in the case of Vijay Vyas vs. Abhishek Goyal and Others (S.B. Civil Writ Petition No. 8133/2011 = 2012(1) RLW 891) found the mesne-profits of Rs. Learned counsel cited the judgment of this High Court, where the Coordinate Bench in the case of Vijay Vyas vs. Abhishek Goyal and Others (S.B. Civil Writ Petition No. 8133/2011 = 2012(1) RLW 891) found the mesne-profits of Rs. 15,150/- to be exorbitant and reduced the same to Rs. 5050/-, to be paid by the tenant to the landlord during the pendency of the appeal. 5. The second thrust of argument put forth by learned counsel for the petitioners is that the landlord decree holder himself prayed in his application that he should be allowed to be paid that very amount (mesne-profits) for the use and occupation of the premises by the tenant equivalent to the amount of standard rent determined by the court. Hence, the amount of mesne-profits cannot be determined to be more than the amount of standard rent fixed by the court. Learned counsel canvassed that the appellate court has travelled beyond the prayer made by the plaintiff-respondent and exceeded its jurisdiction while determining Rs. 13,000/- to be the mesne-profits of the suit premises towards its use and occupation by the petitioners-tenants. He further canvassed that the learned court below committed serious error in granting liberty to the respondent to get the decree executed in view of the retraction of the consent by the respondent. Consent once given for status-quo could not have been permitted to be retracted by the learned court below. By permitting the respondent to retract from the consent, the Court below has permitted the fate of the petitioners to be decided by the respondent and not by the court. Hence, the impugned order is arbitrary, perverse and not based on any material on record, which needs to be set-aside. 6. E Converso, the learned counsel for the respondents defended the impugned order and stated the same to be just and apt. 7. Having reflected over the submissions made at the bar and carefully scanned the relevant material on record, it is noticed that the learned appellate court stayed the operation of the judgment and decree passed by the trial court on certain terms, as enumerated in the impugned order dated 17th March, 2012 while adjudicating the application filed under Order 41 Rule 5 CPC. The learned appellate court not only considered the facts of the case, but critically analyzed the valuer's report and the attending circumstances ad-longum and having applied his own experience and the common knowledge with regard to the situation of the suit premises, determined the mesne-profits. It is a settled proposition of law that the appellate court while exercising jurisdiction under Article 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction, must comply and vacate the premises. His right of appeal is statutory, but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay, the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing execution of the order for eviction. 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 reasonable amount. In the case on hand, learned Additional District Judge, having considered the valuer's report with regard to the suit premises found that the value of the suit property in the year 2007 was Rs. 17,00,000/-. The petitioners-tenant did not adduce any evidence to rebut the same. The appellate court also considered the standards as prescribed by the Public Works Department. The valuer assessed the rent of the suit property to be Rs. 11,600/- per month in the year 2007. The court categorically indicated in the impugned order that the suit premises ad-measuring 338 sq. ft. was located in the main commercial area of the city, Ajmer, which has got a high commercial value and keeping in view all these facts and circumstances and applying his personal experience and knowledge, ordered an amount of Rs. 13,000/- per month, to be paid by the petitioners-tenant to the respondent-landlord as mesne-profits. 8. So far as this argument of learned counsel for the petitioners that the appellate court could not travel beyond the prayer made by the respondent-plaintiff himself that the mesne-profits equivalent to the standard rent may be allowed to him is concerned, it has to be borne in mind that the tenant had been paying Rs. 8. So far as this argument of learned counsel for the petitioners that the appellate court could not travel beyond the prayer made by the respondent-plaintiff himself that the mesne-profits equivalent to the standard rent may be allowed to him is concerned, it has to be borne in mind that the tenant had been paying Rs. 35/- rent per month to the landlord and he made the prayer that the amount towards the use and occupation of the suit premises be also ordered to be paid to him equivalent to the standard rent determined by the court. It cannot be forgotten that this prayer was made by the landlord way back on 18th February, 1982 and thereafter the value of real estate and the rent rates have sky rocketed. The rate of inflation in the real estate has been galloping. The suit premises are situated in the prime commercial locality of Ajmer city. The valuer has evaluated Rs. 17,00,000/- to be the value of the suit property in the year 2007. Hence, if the sky rocketed rates of the real estate as also the galloping rate of inflation is kept in mind, the appellate court is found to have committed no error in determining Rs. 10,000/- to be the mesne profits paid by the tenant to the landlord with effect from 14th November, 2006 to March, 2012 and thereafter Rs. 13,000/- per month payable by the tenant to the landlord with effect from 1st April, 2012. 9. Learned counsel for the petitioners has not assailed other terms of the order, hence, I do not deem proper to discuss any of them at this stage. 10. In view of above facts and circumstances, the amount of mesne-profits as determined by the appellate court cannot be said to be arbitrary and contrary to material on record. The impugned order seems to be just and proper in the facts and circumstances of the case and suffers from no infirmity. 11. Learned counsel for the petitioners has utterly failed to convince me to take a view contrary to that of the view taken by the learned appellate court and thus, the impugned award warrants no intervention. 12. Jurisdiction under Article 227 of the Constitution cannot be invoked to upset the pure findings of fact. 11. Learned counsel for the petitioners has utterly failed to convince me to take a view contrary to that of the view taken by the learned appellate court and thus, the impugned award warrants no intervention. 12. 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 or it results in manifesting injustice. 13. This petition has been filed under Article 227 of the Constitution of India. In the case of Shalini Shyam Shetty and Another vs. Rajendra Shankar Patil reported in (2010) 8 Supreme Court Cases 329, their Lordships of Hon'ble Apex Court have held that the power under Article 227 of the Constitution of India is a reserved and exceptional power for judicial intervention to be exercised not merely for the grant of relief in any even of the case, but only to be directed for the promotion of public confidence in the administration of justice. It has been held that the power is unfettered, but subject to high degree of judicial discipline and interference is to be kept at the minimum.” 14. In view of above, the writ petition fails and the same being bereft of any merit stands dismissed. 15. Consequent upon the dismissal of writ petition, the stay application, filed herewith, does not survive and the same also stands dismissed.