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2017 DIGILAW 1600 (RAJ)

Rajendra Prasad v. Ashok Kumar

2017-07-19

PRAKASH GUPTA

body2017
ORDER : Prakash Gupta, J. The matter has come up on interim application No.5217 dated 13th February, 2017filed by the plaintiff-respondent under Order 41 Rule 5 read with section 151 CPC for grant of mesne profits. 2. This Court vide order dated 31st October, 2001 while admitting the appeal stayed the execution of the decree passed by the courts below. Now, the respondent-applicant filed the present application under Order 41 Rule 5 CPC claiming Rs. 8,000/- per month as mense profit. To substantiate the claim, the plaintiff-respondent has produced the copies of two rent deeds executed by Shri Sohan Singh Meena in favour of Shri Ram Kumar and Ranveer Kumar Sharma in favour of Krishna Kumar respectively. Affidavits of Sohan Singh Meena, Ranveer Kumar Sharma, Krishan Murari and Ram Kumar and the rent receipt issued by Krishan Murari have also been produced on record by the respondents. 3. It is submitted by the learned counsel for the applicant plaintiff respondent that the shop in question is situated at Sepau Road, Badi, District Dholpur and the shops in the nearby vicinity have been let out on monthly rent of Rs. 8,000/-. It is also submitted that both the courts below have passed the decree of eviction against the defendant appellant and, therefore, the appellant is in wrongful possession of the property in dispute. The respondent applicant is entitled to get the mesne profit at the prevailing market rate in the area. In support of his submissions, Shri JP Goyal, learned senior counsel for the plaintiff respondent has placed reliance on the judgment of the Apex Court in the case of M/s. Atma Ram Properties(P) Ltd. v. M/s. Federal Motors Pvt. Ltd. 2005 (1) SRJ 320. 4. The defendant-appellant has filed a reply to the application disputing the factual aspect of the matter. It is submitted that the rent notes annexed to the application are fabricated documents. Therefore, the application deserves to be dismissed. However, it is to be noted that the defendant-appellant has not produced any document in counter to the documents produced by the plaintiff-respondent in support of his application to controvert the fact made in the reply about fabrication of the documents. 5. Therefore, the application deserves to be dismissed. However, it is to be noted that the defendant-appellant has not produced any document in counter to the documents produced by the plaintiff-respondent in support of his application to controvert the fact made in the reply about fabrication of the documents. 5. Having regard to the submissions made by the learned counsel for the parties and on perusal of the record, it transpires that a decree of eviction was passed by the trial court and the same was confirmed by the first appellate court. In Atma Ram Properties (supra) Hon'ble the Supreme Court has observed that while ordering stay, the appellate court is justified in putting the appellant-tenant on terms and direct him to compensate the landlord by payment of a reasonable amount as mesne profit. Hon'ble the Supreme Court has summed up the conclusions as under:- "(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable; (2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree; (3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date." 6. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree; (3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date." 6. In the present case, the shop in dispute is stated to be taken on rent by the appellant at a monthly rent of Rs. 200/- on 18th February, 1984. The rates of the property have sky rocketed since than. As per the documents produced by the plaintiff respondent on record, the rent of the shops in the same vicinity is stated to be Rs. 8,000/- per month. Considering the fact that the appeal has been admitted and execution of the decree of eviction against the appellant has been stayed, the defendant-appellant is required to compensate the plaintiff-respondent by making payment of reasonable mesne profits. 7. Consequently, I allow the application and direct that for the use and occupation of the premises, the defendant-appellant shall pay to the applicant-respondent Rs. 4,000/- per month as mesne profit from the date of filing the application i.e. 13th February, 2017. The defendant appellant is directed to make payment of arrears of mesne profit from the date of application till 31st July, 2017 to the plaintiff-respondent within two months from today, failing which the plaintiff-respondent shall be at a liberty to execute the decree without any further order from the Court. Any amount has already been paid/deposited by the appellant the same shall be adjusted from the amount of arrears that is to be paid. Further the defendant-appellant shall continue to deposit the mesne profit from August, 2017 onwards @ Rs. 4,000/- per month with the bank account of the plaintiff-respondent on or before 15th day of each succeeding month. It is made clear that if the appellant fails to deposit the monthly mesne profit consecutively for four months, the respondent shall be at a liberty to execute the decree without any order from the Court.