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2016 DIGILAW 97 (RAJ)

Champalal v. Jagdish Prasad

2016-01-14

ARUN BHANSALI

body2016
JUDGMENT : Arun Bhansali, J. This Writ Petition has been filed by the petitioner aggrieved against the Order dated 3.11.2015 passed by the First Appellate Court, whereby on the application filed by the petitioner under Order 41, Rule 5 C.P.C., while staying the decree passed by the Trial Court, the First Appellate Court has directed deposit of 70% of the amount of mesne profit as decreed by the Trial Court. 2. The suit was filed for eviction on account of termination of tenancy by giving notice under Section 106 of the Transfer of Property Act in the Court of Senior Civil Judge, Shri Dungargarh, District Bikaner in the year 2007. The same was decreed by the Judgment and Decree dated 3.10.2015 and the Trial Court directed eviction as well as payment of mesne profit from the date of termination of tenancy w.e.f. 1.10.2007 @ Rs. 3,000/- per month. 3. Feeling aggrieved, the petitioner filed First Appeal along with an application under Order 41, Rule 5 C.P.C. The learned First Appellate Court after hearing the parties, stayed the execution of decree passed by the Trial Court subject to the petitioner making payment of 70% of the amount of mesne profit decreed. 4. It is submitted by the learned Counsel for the petitioner that the First Appellate Court was not justified in directing payment of mesne profit and that also @ 70%. It is submitted that the issue decided by the Trial Court whereby the mesne profits were determined at Rs. 3,000/- per month was challenged in appeal and by passing the impugned order, the First Appellate Court has foreclosed the said issue and, therefore, the order cannot be sustained. It is also submitted that the amount of Rs. 3,000/- compared to the amount of agreed rent of Rs. 350/- is too huge and, therefore, the same cannot be sustained. 5. I have considered the submissions made by learned Counsel for the petitioner and have perused the material available on record. 6. Admittedly, the premises were let out to the petitioner from before 11.10.1989, when the premises were purchased by the respondents landlord and the premises were with the petitioner as tenant at the meagre rent of Rs. 350/-. The Trial Court while deciding the issue pertaining to the grant of mesne profit came to the conclusion that the landlord was entitled to the same at the rate of Rs. 350/-. The Trial Court while deciding the issue pertaining to the grant of mesne profit came to the conclusion that the landlord was entitled to the same at the rate of Rs. 3,000/- and passed the decree accordingly. 7. Once the decree was passed by the Trial Court, the same is in two parts, while the first part deals with eviction, the other part, which orders grant of mesne profit essentially is in the nature of a money decree and in that view of the matter, the First Appellate Court was justified in staying the same to the extent of 70% only. Further, in Atmaram Properties Ltd. v. Federal Motors Ltd., (2005) 1 SCC 705 , Hon’ble Supreme Court while dealing with exercise of powers under Order 41, Rule5 C.P.C. in the cases pertaining to eviction has also upheld such direction and has in fact laid down that an enhanced rent of mesne profit can be directed to be paid by the tenant during the pendency of the Appeal. 8. So far as the submissions of learned Counsel for the petitioner regarding foreclosing the challenge to the quantum of mesne profit as determined by the Trial Court on account of passing of the impugned order by First Appellate Court is concerned, the said apprehension is wholly imsplaced as the First Appellate Court has not determined any aspect and has simply directed the payment of 70% of the mesne profit. It is always open for the petitioner to make submissions regarding the finding on mesne profits as recorded by the Trial Court and the direction dated 3.10.2015 by the First Appellate Court would not affect the said challenge. 9. In view of the above discussion, there is no substance in the Writ Petition. The same is, therefore, dismissed. 10. However, as the time granted by the First Appellate Court by its impugned order has already expired, at the request of learned Counsel for the petitioner, the petitioner is granted time till 31.1.2016 to comply with the directions given by the First Appellate Court.