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2017 DIGILAW 138 (RAJ)

Radhey Shyam S/o Bhuramal Agarwal v. Ram Charan S/o Bhagwan Sahai

2017-01-11

JAINENDRA KUMAR RANKA

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JUDGMENT : Jainendra Kumar Ranka, J. The appeal was admitted on 09.09.2015 by this Court. 2. By way of instant application filed under Order 41, Rule 5, grant of Mesne Profit pending Civil Second Appeal has been raised, bringing to the notice of this court, along-with the application, the valuation report filed of a registered valuer, wherein fair market value of the disputed shop in question has been valued at about Rs. 1.25 crores as on 19.09.2015. In addition to the valuation report, counsel for the respondent has also placed on record, certain lease agreements/lease deeds of the areas surrounding the shop in question wherein rent/lease is in the vicinity of Rs.13,000 to Rs. 20,000 per month and some of the lease deeds are of the year 2012-13 and later. 3. Counsel for the respondent brings to the notice of the court that the shop in question is situated at Tripolia Bazar, Chomu which is admittedly a commercial area and the shop is in between Bus-stand to Chopad and the DLC value of the same for commercial area of the main road has been shown to be Rs.53,990/- per square meter as on 11.10.2015, and the documents have also been filed by the respondent. 4. Counsel further contended that the respondent has every right to claim Mesne Profits pending the appeal as the shop in question was given in the year 1982 and more than 30 years have already passed with a direction of only Rs. 7,000/- per annum, which is a peanut, taking into consideration the values/rents have, gone high and as per the valuation report of the year 2015 and thereafter, there is substantial appreciation in the values and has prayed to pay mesne profit of more than Rs. 25,000/- per month, in the application. Counsel has also relied on the judgment of the Apex Court in the case of Atma Ram Properties (p) Ltd. v. Federal Motors Pvt. Ltd. (2005) 1 SCC 705 . 5. Per-contra, learned counsel for the appellant has disputed the application filed for Mesne Profit as the decree of eviction have already been passed and any variation in the order, once the appeal has been admitted may not be proper and if Mesne Profit is granted additional to Rs. 7,000/- per annum, as fixed by the Trial Court, it would be in fact modifying the decree which may not be permissible. 7,000/- per annum, as fixed by the Trial Court, it would be in fact modifying the decree which may not be permissible. Counsel further contended in the alternative that the amount fixed by the Trial Court is more than reasonable and no interference may be necessary. Counsel further contended that the valuation report is highly inflated and contended that the similar situated shop was sold on 20.07.2011 for a total consideration of Rs. 14,71,000/-. Counsel has also relied on the rent of the nearby shops which is in the range from Rs. 200/- to Rs. 500/- per month. Counsel also contended that there is yet another valuation report on behalf of the appellant which shows fair market value of Rs. 6,50,000/- which is more nearer to the fair market value and the same is required to be considered rather than the valuation report of the respondent which is exorbitant and unreal. Counsel also contended that since there is wide variation in the two valuation reports and the appellant has been able to place on record the rent of similar situated shops, it would be appropriate to direct the Trial Court to take into consideration all these factors and to assess by the Trial court who may consider all these facts as there is vide variation. 6. I have considered the arguments advanced by the counsel for the parties and in my view Mesne Profit is required to be allowed pending Second Appeal and after taking into consideration the fair market value or fair rental value. The Apex court in the case of Atma Ram Properties (p) Ltd. v. Federal Motors Pvt. Ltd. (supra) has laid down certain principles governing the Mesne Profit. 7. The prayer made by the counsel for the appellant is rejected that decree would be modified if any, amount over and above Rs. 7,000/- p.a. is allowed, as in my view fair rental is to be considered. 8. In my view, it may not be appropriate also to send the matter back to the Trial Court for taking into consideration all factors which may result into many years even to adjudge proper and reasonable grant of Mesne Profit and this court can certainly arrive to a fair rent/mesne profit. 9. Admittedly, there are two valuation reports one by the appellant and one by the respondent either one is highly inflated at about Rs. 9. Admittedly, there are two valuation reports one by the appellant and one by the respondent either one is highly inflated at about Rs. 1.25 crores or the other report by the appellant to be Rs. 6,50,000/- to be highly deflated and there is no semblance in between the two, when both the valuation reports are by valuers who claim themselves to be technical persons, well qualified and are registered valuers. Be that as it may there are other factors also which can be taken note of while working out proper mesne profit as the counsel for the respondent has placed on record certain lease deeds of similar situated properties including the lease deed of HDFC Bank Ltd. which is a registered document and which speaks of the lease rental of Rs. 14,000/- per month in the year 2011 that is almost 5 years before. The other lease deeds produced by the respondents are in the near vicinity of Rs. 13,000 to Rs. 15,000/- per month which can be a reasonable basis to assess Mesne Profit. Chomu being just about 30 Kms. from Jaipur on National Highway has become an important area and the main markets are all close by. Admittedly shop is situated in Tripolia Bazar Chomu and the DLC rate shows that the value of commercial area as per the sub-Registrar, Chomu as on 09.10.2015 between Bus Stand to Chopad is Rs. 53,990/- per square metre. 10. If, the sale deed provided by the counsel for the appellant is also considered, then too the same is for the year 2011 and much water has flown during the last about 6 years and even in July, 2011 the said shop was sold for consideration of Rs. 14,71,000/- with a slightly bigger area then that of the present shop and since than the fair market value have substantially risen in the last more than 5 years. 11. Taking into consideration, the overall view and the lease deeds provided by the counsel for the respondent including that of HDFC Bank Ltd., in my view it would be fair and reasonable to assess Mesne Profit @ 10,000 per month which shall be paid by the appellant from 1/1/2016 onwards regularly. 12. 11. Taking into consideration, the overall view and the lease deeds provided by the counsel for the respondent including that of HDFC Bank Ltd., in my view it would be fair and reasonable to assess Mesne Profit @ 10,000 per month which shall be paid by the appellant from 1/1/2016 onwards regularly. 12. It has been informed that the appellant has the Bank account details of the respondent and the appellant is well instructed to deposit the said amount in the account of the respondent and arrears to be deposited within a period of 3 months and simultaneously deposit on month to month basis by 7th day of close of the next month. 13. In case the appellant defaults in deposit of the Mesne Profit as aforesaid the respondent shall be at liberty to get the decree executed without further reference to this court or the lower courts. In my view, the amount is required to be used and utilized by the respondent, at least after succeeding after 3 decades of long litigation before both the courts below and still hanging fire and at least needs to enjoy some fruits out of the shop, though the appeal has been admitted by this court. 14. The application of Mesne Profit stands disposed of as aforesaid.