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Judgment
S.B.Civil First Appeal No.121/2018
The application filed by the appellant seeking preponement of the date is allowed.
The matter is taken up for admission.
Heard learned counsel for the appellant and learned counsel appearing on caveat.
Admit. Issue notice.
The respondent is duly represented, therefore, no need to issue fresh notice.
Heard on the application filed by the appellants, though titled as under Order XXXIX Rule 1 & 2 CPC, essentially under Order XLI Rule 5 CPC.
It is submitted by learned counsel for the appellants that the appellants are running a school in the suit premises and in case the appellants are evicted
from the suit premises, the same would result in irreparable injury to them.
Further submission has been made that in the proceedings initiated by the respondent landlord under Section 6 of the Rajasthan Rent Control Act, 2001
(‘the Act of 2001’), rent has been revised by the Rent Tribunal, Jodhpur Metro by its order dated 21/2/2014, which order has been upheld by
this Court in S.B.Civil Writ Petition No.3926/2017 decided on 1/6/2017 and Special Leave Petition filed by the appellant against the order dated
1/6/2017 passed by this Court has also been rejected. It is prayed that the execution of the impugned decree for eviction be stayed during the
pendency of the appeal.
Learned counsel for the respondent vehemently opposed the submissions.
It is submitted that looking to the nature of the case where findings regarding bonafide necessity and nuisance have been recorded against the
appellant by the trial court, the appellant is not entitled to grant of any stay. In the alternative, it was submitted that the premises are situated at prime
location and are being used for commercial purposes by the appellants and, therefore, they must be put to terms regarding mesne profit and as the
property in question is valued at a huge sum, the mesne profit must accordingly be ordered to be paid.
Regarding the order passed under Section 6 of the Act of 2001, it was submitted that merely because rent under the provisions of the Act of 2001 has
been revised, this Court is not bound by the criteria provided by the Rent Control legislation and the criteria must be applied as at the rate at which the
landlord would be able to let out the premises and earn rent if the tenant vacates the premises.
Reliance has been placed on the judgment in Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd. : (2005) 1 SCC 705 and Late Bhanwar Lal
vs. Nirmal Kumar Duggar HUF : 2013 (1) CDR 157 (Raj.).
It was prayed that the stay application be rejected and/or suitable mesne profit be directed to be paid.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
The appeal has already been admitted and as laid down by Hon’ble Supreme Court in the case of Atma Ram Properties (supra), non-grant of stay
against the decree of eviction would result in irreparable injury to the tenant and, therefore, the submissions made by learned counsel for the
respondent seeking rejection of stay application cannot be accepted. It was brought to the notice of the Court that presently revised rent of the
premises is Rs.20,000/- p.m.
This Court in the case of Late Bhanwar Lal (supra) was faced with the question as to whether mesne profit at a rate exceeding the provisional rent
determined by the competent authority can be awarded during the pendency of the appeal arising from a decree of eviction. After considering the law
on the subject, it was laid down as under:
“17. In the case of Pokhardas vs. Govind Sharan (S.B.Civil Second Appeal No.468/2011) decided by this Court on 2.4.2012, in the application filed
by the landlord for grant of mesne profits during pendency of the appeal, it was contended by the tenant that mesne profits at a rate exceeding the
revised rend awarded under Sec.6 of the Rajasthan Rent Control Act, 2001 can’t be granted but the same was rejected. On the same analogy, the
contention raised in the present appeal is also liable to be rejected. The Court is not bound by the criteria provided by the rent control legislation and
criteria is 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.
Accordingly, it is held that in a case in which during pendency of suit or appeal filed under the provisions of the Act for eviction of tenant, standard
provisional rent has been determined under Section 6/Section 7 of the Act, the appellate Court while awarding mesne profits during pendency of the
appeal filed against a decree of eviction, is not bound to confine the amount of mesne profits to the extent of standard/provisional rent only but if found
appropriate, even an amount exceeding such rate of rent can be awarded.â€
In view of the above, the fact that the appellant is paying rent as determined in a proceeding initiated by the landlord under Section 6 of the Act of
2001 is of no consequence and the appellant is required to pay mesne profits independent of the said determination. Looking to the over all fact
situation of the case, wherein the appellants are running a commercial venture like school with about 400 students at the premises, the amount of
mesne profit is determined at Rs.40,000/- per month.
Consequently, the application filed by the appellant under Order XLI Rule 5 CPC is partly allowed. The execution of the impugned decree dated
22/11/2017 passed by the trial court shall remain stayed during the pendency of the appeal subject to the appellant making payment of mesne profit @
Rs.40,000/- per month w.e.f. 1/12/2017 till the final disposal of this appeal. The arrears of mesne profit for the period 1/12/2017 to 31/7/2018 shall be
paid/deposited, after adjusting the amount of rent, if already paid, within a period of four weeks from the date of this order. It is also directed that from
1/8/2018 mesne profit @ Rs.40,000/- p.m. shall be paid/deposited by 15th of each succeeding month during the pendency of present appeal.
The amount of arrears and month to month mesne profit shall be deposited in the Saving Bank Account of the respondent, particulars whereof would
be supplied by learned counsel for the respondent to learned counsel for the appellant under receipt within a period of two weeks from today, if not
already in possession of the appellants.
In case, the arrears as directed are not paid and/or the appellant commits three consecutive defaults in payment of amount of month to month mesne
profit in terms of above direction, the above interim order granted by this Court would come to an end automatically without reference to the Court
and respondent-plaintiff would be entitled to execute the decree forthwith.
With the above directions, the stay application stands disposed of.
S.B.Civil First Appeal No.106/2009
Connect with S.B.Civil First Appeal No. 121/2018.
S.B.Civil First Appeal No.165/2018 Admit. Issue notice.
Mr. Sandeep Bhandawat, who appears for the respondents in connected appeal, is directed to accept notice on behalf of the respondents. A copy of
memo of appeal be supplied to him. No need to issue notice.
Office is directed to reflect the name of Mr. Sandeep Bhandawat as counsel appearing for the respondents in the cause list.
Connect with S.B.Civil First Appeal No. 121/2018.