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2018 DIGILAW 954 (RAJ)

Vinod Kumar v. Tarachand Rajkumar Lunawat

2018-04-06

PRAKASH GUPTA

body2018
JUDGMENT Prakash Gupta, J. - The matter has come up on an application I.A. No. 13961 of 2018 filed by the appellant seeking withdrawal of the present appeal. 2. The facts, in brief, are that plaintiff/respondents filed a civil suit for eviction and possession of the shop in question along with recovery of due rent. Learned Additional District and Sessions Judge(Fast Track) No. 2, Beawar vide impugned judgment and decree dated 10.02.2009, partly allowed the suit for recovery of rent of Rs. 600/- with mesne profits @ Rs. 200/- per month from the date of filing of the suit i.e. 24.08.2005 till the date of judgment holding the plaintiff entitled for eviction of the defendants from the disputed shop. 3. Against the said judgment and decree dated 10.02.2009, the present first appeal has been filed by the defendant. On 06.04.2009 this Court while admitting the appeal and issuing notices to the respondents, passed an interim order to the effect that appellant shall not be evicted from the property in dispute, provided he deposits all the arrears of rent within a period of three weeks and further continues to pay the monthly mesne profit as per the direction of the trial Court. 4. During pendency of the appeal an application (I.A. No. 10650 of 2016) was filed by the plaintiff-respondent for enhancement of the mesne profit. A Coordinate Bench of this Court on 26.05.2017 while disposing of the application passed a detailed order, operative portion whereof reads as under:- "12. Looked from all angles, in my view, it would be fair and reasonable to assume that rental of Rs. 5000/- per month to be fair rent ignoring the valuation reports filed by the appellant as well as by the respondent. 13. It is noticed that normally the mesne profit is required to be allowed from the date when the application is filed and in the instant case admittedly the application was filed on 2.4.2011 and has been kept pending for years together. But it would be too much if the appellant is asked to pay the said rent from 2.4.2011. Therefore, I deem it appropriate to direct the appellant to pay the enhanced rent from 1.1.2014 onwards. 14. The judgments relied upon by the leaned counsel for the appellant, for the reasons assigned earlier and judgments of this Court itself, are inapplicable or distinguishable. 15. Therefore, I deem it appropriate to direct the appellant to pay the enhanced rent from 1.1.2014 onwards. 14. The judgments relied upon by the leaned counsel for the appellant, for the reasons assigned earlier and judgments of this Court itself, are inapplicable or distinguishable. 15. Let the arrears be paid within a period of three months and further rent of Rs. 5000/- shall be paid by the appellant on month to month basis regularly on and from 1.1.2014 till disposal of the appeal, which shall be deposited by 15th day of every succeeding month in the bank account of respondent. Learned counsel for the respondent shall inform the appellant about the details of bank account number in which the rent, as aforesaid, is to be deposited by the appellant. In case the appellant fails to deposit the arrears and mesne profits as aforesaid, the respondent shall be at liberty to get the decree executed immediately without taking recourse of filing an application for execution. 16. The respondent shall, however, given an undertaking before the trial court that if the appellant succeeds, then the respondent shall return/refund the entire amount with interest @ 9% within a period of 3 months. 17. In view of the aforesaid, the application stands disposed of." 5. Thereafter an application I.A. No. 24937 of 2017 came to be filed by the appellant for recalling/revoking the said order dated 26.05.2017, which was also disposed of by the Coordinate Bench vide order dated 10.08.2017 passing the following order:- "This case comes up for orders on an application (24937 of 2017) for recalling/revoking the order dated 26/5/2017 passed in SBC Misc. Application No. 10650 of 2016 by which mesne profit has been enhanced from Rs. 200/- to Rs. 5,000/-. In the application, the applicant has prayed that: "It is, therefore, most humbly prayed that your Lordships may graciously be pleased to accept this Misc. Application and further be pleased to recall/revoke the order dated 26.05.2017 passed in S.B. Civil Misc. Application No. 10650 of 2016 in S.B. Civil Regular First Appeal No. 233 of 2009 (Vinod Kuamr v. Tarachand Raj Kumar Lunawat and ors.) and may kindly dismiss the S.B. Civil Misc. Application and further be pleased to recall/revoke the order dated 26.05.2017 passed in S.B. Civil Misc. Application No. 10650 of 2016 in S.B. Civil Regular First Appeal No. 233 of 2009 (Vinod Kuamr v. Tarachand Raj Kumar Lunawat and ors.) and may kindly dismiss the S.B. Civil Misc. Application No. 10650 of 2016 with costs." Without going into the merits of the issue raised in the aforesaid application, this Court is of the view that the order dated 26/5/2017 passed by this Court cannot be re-examined as an appellate court under section 151 CPC. However, looking to the controversy involved in the present matter, in the interest of justice, the operation of the order dated 26.5.2017 passed by this Court shall remain stayed for a period of 45 days from today. The application stands disposed of accordingly." Thereafter when the case was listed before the Court on 01.09.2017, the appellant handed over the keys of vacant shop to the learned counsel for the respondent. Order passed by this Court on 01.09.2017 reads as under:- "Counsel for the appellant submits that the appellant is ready to hand over the vacant possession of the shop in dispute and today his client Mr. Vinod Kumar, is present in court, has brought the key of the vacant shop in dispute. In this matter, the respondent plaintiff is entitled to get vacant possession of the dispute shop as per the impugned judgment and decree of the learned Court below. The appelland Vinod Kumar has handed over the key of vacant shop to the learned counsel for the respondent during the course of hearing of this matter. In view of the above, the respondent is entitled to take possession of the shop in dispute immediately and the respondent is also entitled to use the shop according to his need. List on 8th September, 2017, as prayed." Now, an application (I.A. No. 13961 of 2018) has been filed by the appellant for withdrawal of the appeal. 6. Learned counsel for the appellant submits that since the appellant was not able to make the payment of enhanced mesne profit, the shop in question was vacated by handing over the keys thereof to the respondent in the Court itself on 01.09.2017. 6. Learned counsel for the appellant submits that since the appellant was not able to make the payment of enhanced mesne profit, the shop in question was vacated by handing over the keys thereof to the respondent in the Court itself on 01.09.2017. He further submitted that payment of due amount of rent and mesne profit till 01.09.2017 has already been deposited by the appellant and in the circumstances the decree of the learned trial court stood already satisfied. In support of his submissions, learned counsel for the appellant has relied on the judgment of the Hon'ble Supreme Court in Prem Chandra Agarwal and anr. v. Uttar Pradesh Financial Corporation and ors., (2009) 11 SCC 479 , wherein it has been held that once a final order is passed, all the earlier interim orders merge into the final order and the interim orders cease to exist. He also relied upon the judgment rendered by the Hon'ble Supreme Court in Jagtar Singh v. Pargat Singh and ors., (1996) 11 SCC 586 , wherein it has been held that Counsel for the appellant has power to make a statement on instructions from the party to withdraw the appeal and even after admitting the appeal, the Court has power to dismiss the appeal as withdrawn on the basis of such statement of the Counsel without going into the merits of the matter and deciding under Order 41, Rule 11. 7. Learned counsel for the appellant further placed reliance on the judgment delivered by the Hon'ble Supreme Court in Bijayananda Patnaik v. Satrughna Sahu and ors., AIR 1963 SC 1566 , wherein it has been held as under:- "9. We are therefore of opinion that the High Court should have allowed the application for unconditional withdrawal made by Satrughna Sahu, the appellant before it. Further the High Court in this connection need not have referred to the affidavits filed on behalf of the other two defeated candidates before it, for such affidavits were irrelevant, if Satrughna Sahu, the appellant before the High Court, was entitled to withdraw the appeal unconditionally and the high Court could not refuse such withdrawal." 8. He has, therefore, prayed that the appellant may be allowed to withdraw the appeal and as a consequence whereof all previous interim orders passed by this Court from time to time may be treated to have come to an end. 9. He has, therefore, prayed that the appellant may be allowed to withdraw the appeal and as a consequence whereof all previous interim orders passed by this Court from time to time may be treated to have come to an end. 9. On the other hand, while opposing the prayer made by the learned counsel for the appellant, the plaintiff/respondents have filed a reply to the application controverting the facts mentioned therein. It is submitted that appellant has not paid mesne profit in pursuance of the order dated 26.05.2017. Further more, merely handing over of keys of the disputed shop will not deprive the respondent from recovering the mesne profit, as directed by this Court, till the date when rented premise was vacated. Once legal rights have been created in favour of the respondent, he cannot be deprived to recover the amount of mesne profit simply by withdrawing the appeal. 10. In support of his submissions, learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in R. Rathinavel Chettiar and anr. v. V.Sivaraman and ors., (1999) 4 SCC 89 , wherein it has been held that withdrawal of the suit by plaintiff after passing of decree, at appellate stage, cannot be allowed by Court as a matter of course when by virtue of such withdrawal vested or substantive rights of any party to the litigation will be adversely affected. He also placed reliance on a judgment of the Division Bench of this Court, Bench at Jaipur in D.B. Civil Misc. Appeal No. 3479 of 2014, Sonaram v. Smt. Vimla, dated 26.05.2016 , wherein the Division Bench has observed as under:- "The prayer of the appellant for dismissal of the application under Section 24 of the Act of 1955, on withdrawal of appeal cannot be accepted. The maintenance under Section 24 of the Act of 1955 is given pending litigation between the parties. The present appeal is pending till today. The bonafide of appellant in raising the objection against the application is not coming out because on the last date of hearing, this Court was inclined to pass order on the application under Section 24 of the Act of 1955 but learned counsel for appellant sought time to seek instruction and the appeal was deferred. The bonafide of appellant in raising the objection against the application is not coming out because on the last date of hearing, this Court was inclined to pass order on the application under Section 24 of the Act of 1955 but learned counsel for appellant sought time to seek instruction and the appeal was deferred. The withdrawal of appeal now cannot be used to deny benefit to the non-appellant under Section 24 of the Act of 1955. A prayer made for withdrawal of the appeal is however allowed and accordingly the appeal is dismissed as withdrawn. The payment of maintenance would obviously be for the period when appeal remained pending before this Court." 11. Reliance has also been placed on the judgment of a Single Bench of this Court, Bench at Jaipur passed in Ram Dhan v. Jagat Prasad Sethi and ors., AIR 1982 Rajasthan 235 , wherein it was observed as follows:- "15...I am, therefore, clearly of the view that before granting any permission for withdrawal of a suit at the stage of second appeal, the plaintiff cannot claim an absolute right to withdraw the suit and the facts and circumstances of each case will have to be seen before granting or refusing such prayer. In the present case, the plaintiff has not mentioned any circumstance worth-the-name for allowing such prayer and in the facts and circumstances of this case as already mentioned above, I do not consider it a fit case for granting such request made by the plaintiff." 12. Learned counsel for the respondents has, therefore, prayed that the application filed by the appellant for withdrawal of the appeal may be dismissed and the appellant may be directed to comply with the order dated 26.05.2017 passed by this Court. I have heard learned counsel for both the parties and with their assistance carefully gone through the material available on record so also the judgments cited by both the parties. 13. Vide order dated 26.05.2017, the appellant was directed to pay arrears of rent within a period of three months and further pay mesne profit @ Rs. 5,000/- on month to month basis from 01.01.2014 till final disposal of appeal. It was also directed that if the appellant fails to deposit rent and arrears as aforesaid the respondents shall be at liberty to get the decree executed. Thus, order is self speaking and was a conditional order. 5,000/- on month to month basis from 01.01.2014 till final disposal of appeal. It was also directed that if the appellant fails to deposit rent and arrears as aforesaid the respondents shall be at liberty to get the decree executed. Thus, order is self speaking and was a conditional order. Admittedly, the possession of the suit shop has been handed over by the appellant to the respondent and at that time no objection whatsoever was raised by the respondent that the will get the possession only if mesne profits are simultaneously paid to him. It is also pertinent that the above order was passed on an application under Order 41, Rule 5 CPC and the same was an interim order, which would be merged with final order to be passed in this appeal. In view of the above, no rights have accrued in favour of the respondent. As the order was conditional, the respondent is not entitled to get mesne profit as claimed by him. 14. In the result, the application is allowed and appellant is permitted to withdraw the appeal and the appeal is dismissed as withdrawn.