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2022 DIGILAW 697 (RAJ)

Deendayal v. Nrapendra Kumar

2022-02-28

SUDESH BANSAL

body2022
ORDER 1. The matter has come up on an application filed by respondents-decree holder for fixation of mesne profit of the suit shop. 2. It appears from the record that the dispute between parties is about one shop measuring 15 X 30 ft. situated at Ward No.2, Raiwasa Wala Katla, outside Bawadi Gate, Sikar, let out in the year 1963 and the present rate of rent is said to be Rs.45 per month, wherein the appellant is carrying on his cloth business. The respondent filed an eviction suit way back in the year 1987 on grounds of default of payment, subletting and on account of death of the original tenant, which was dismissed by the trial Court vide judgment dated 22.01.2005 granting benefit of first default. Respondents filed first appeal, which was allowed vide judgment dated 23.11.2016 and a decree for eviction has been passed against appellant-defendant. The appellant-defendant has preferred this second appeal against the decree for eviction dated 23.11.2016. The second appeal has been admitted for hearing on formulation of substantial questions of law vide order dated 3rd January, 2018. Thereafter respondents-decree holder have filed the present application on 31.08.2021 for seeking fixation of mesne profit of the shop in question. 3. The learned counsel for respondents submits that the appellant is at present paying rent Rs.45 per month. The shop, which is situated in the main market of Sikar and at present this shop can fetch the rent at least 35,000/- per month. In support of his contention, a lease deed dated 23.04.2019 for another shop, alleged to be situated near about 300 Mtrs. far from the suit shop has been placed on record; by way of this lease deed, the shop measuring 7 X 19 ft. was let out at the rate of Rs.32,000/- per month w.e.f. 01.04.2019. Another document of DLC rate for the commercial premises of the area have also been placed on record. Learned counsel for respondents has prayed that since appellant is enjoying possession of suit shop during the appeal, hence he may be directed to pay mesne profit and for the shop in question the mesne profit be determined in between Rs.32-35,000/- per month and that too from the date of decree for eviction i.e. 23.11.2016. 4. Learned counsel for respondents has prayed that since appellant is enjoying possession of suit shop during the appeal, hence he may be directed to pay mesne profit and for the shop in question the mesne profit be determined in between Rs.32-35,000/- per month and that too from the date of decree for eviction i.e. 23.11.2016. 4. Per contra, learned counsel for appellant has filed reply to the application and contended that respondents are not accepting the appellant as their tenant rather treating him as trespasser, therefore, they are not entitled to claim mesne profit. In alternative, it has been submitted by appellant that business in the market is not flourishing, therefore at the most, the mesne profit at the rate of 3,000/- only can be determined. He has placed on record one lease deed dated 17.09.2021, to substantiate the rate of mesne profit at the rate of 3,000/- per month. Heard learned counsel for both parties and perused the material on record. 5. Having heard learned counsel for both parties and after perusal of the material placed on record, it is clear that the suit shop mesuring 15 X 30 ft. is situated at Ward No.2, Raiwasa Wala Katla, outside Bawadi Gate, Sikar and the existing rent is Rs. 45/-per month, since the time of filing of the suit way back in 1987. For the purpose of determination of mesne profits during pendency of appeal, the guidelines and principle propounded by the Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 may be taken into consideration. The lease deed produced by parties are not helpful to determine the mesne profit of the shop in question as both lease deeds are of the premises of which size, location, period of tenancy and nature of business is different. None of the parties has produced rental valuation report. During course of arguments, the photographs of shop in question in shutter closed position have been shown to show that shop is situated in old market and not like a showroom. 6. None of the parties has produced rental valuation report. During course of arguments, the photographs of shop in question in shutter closed position have been shown to show that shop is situated in old market and not like a showroom. 6. Thus, considering the size and situation of the suit shop and also the nature of business carried on by appellant therein and looking to old tenancy as well by applying the robust common sense and taking its consideration the other attending circumstances, the equity and balance of interest of parties may be maintained, if the if the mesne profit is determined at the rate of Rs.10,000/- per month. 7. Since the second appeal was admitted on 03.01.2018 and the respondent-decree holder has filed the application asking for mesne profit after more than three and Half years on 31.08.2021, therefore, it is just and proper to grant the mesne profit with effect from the date of application dated 31.08.2021. 8. It has also been noticed by this Court that in other cases, where the Court has already determined the mesne profit and the first appeal/second appeal or other petitions are pending, the applications are being filed for enhancement of mesne profit. Therefore, in the present appeal, this Court is also considering the future prospects on the quantum of msene profit determined to day. In the Rajasthan Rent Control Act, 2001, the legislature has provided a principle to increase the rent by 5% every year. This Court in the interest of justice and to maintain the equity of both parties for the future period also, is of view that the mesne profit as determined would increase by 5% every year until the decision of the appeal. 9. Accordingly, it is hereby directed that appellant shall pay mesne profit at the rate of Rs.10,000/- per month from September, 2021 onwards until decision of this appeal, in the bank account of the respondent as furnished, Saving Bank Account No. 51003681066 IFC Code SBI NO 031361 Subhash Marg, C Scheme, Jaipur. Arrears of mesne profit from September, 2021 to February, 2022 for six month shall be paid within a period of two months from today and from month of March, 2022 onwards, mesne profit shall be paid in the bank account on or before the 10th day of every month. Arrears of mesne profit from September, 2021 to February, 2022 for six month shall be paid within a period of two months from today and from month of March, 2022 onwards, mesne profit shall be paid in the bank account on or before the 10th day of every month. The mesne profit at the rate of 10,000/- would increase by 5%, after expiry of every year from September, 2021. Meaning thereby the rate of mesne profit from September, 2021 to August, 2022, would be 10,000/-, from September, 2022 to August, 2023 it would be increased by 5% it means 10,000 + 500 = 10,500/- and so on 5% increase on the basis of mesne profit in coming succeeding years. 10. The stay against the execution of impugned decree for eviction shall operate only on compliance and the payment of mesne profit as directed hereinabove. 11. It is made clear that in case the appellant commits default of four months in payment of mesne profits, the respondents-decree holder would be at liberty to proceed for execution of the eviction decree even during pendency of this appeal. With the aforesaid, the application stands disposed of. Stay application and other pending application(s) also stand(s) disposed of.