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Judgment
By this order, two applications, namely, the stay application and application filed by the respondents under Order 41 Rule 5 read with Section 151 CPC
are being decided.
The facts necessary for fair adjudication of both the aforesaid applications can be summarised as thus:-
The respondent-plaintiff (hereinafter referred to as 'the plaintiff') instituted a suit against the appellant-defendant (hereinafter referred to as 'the
defendant') for eviction, mesne profit and recovery of rent in relation to one Kotha in Haldiya House, Chowkri Ghatgate, Johari Bazar, Jaipur.
After hearing both the sides, the learned trial court partly decreed the suit of the plaintiff vide judgment and decree dated 6.11.2019. Feeling aggrieved,
the defendant filed regular Civil First Appeal before this Court.
Now the instant appeal is listed for orders on the stay application and on the application filed by the plaintiff under Order 41 Rule 5 read with Section
151 CPC for grant of mesne profits.
It is submitted by the learned counsel for the plaintiff that the disputed property is a commercial building/property admeasuring 128.34 Sq. Ft. areas.
The DLC rate of the disputed land is 440950 per Sq. Mtrs as per the DLC rates issued by the State. It has further been submitted that in the same
area where the disputed property is situated, one Rajesh Agarwal took a shop on monthly rent of Rs. 80,000/- on 7.5.2019. He has further submitted
that the disputed property is in possession of the defendant and he is carrying on the business of jewellary & earning a lot of money every day.
According to the valuation report, the rent of the disputed property is around Rs. 30,000/- per month. It has been prayed that since the plaintiff is
deprived of the fruits of the decree, hence in the interest of justice, the defendant be directed to pay mesne profit @ Rs. 30,000/- per month. It is
further prayed that the decree for eviction was granted in favour of the plaintiff, therefore, if the execution of the same is stayed, the plaintiff is
required to be compensated by way of mesne profits.
On the other hand, learned counsel for the defendant has disputed the aforesaid facts and stated that the defendant is in occupying one small Kotha in
the suit property and the nearby properties of the same size and in the same location are fetching very low rent. It has further been submitted that the
construction of the property in question is very old and the same needs substantial repairs.
Regarding stay of operation of the impugned judgment and execution of the impugned decree, it is submitted by the learned counsel for the defendant
that the defendant is in possession of the disputed property and in case, operation of the impugned judgment and decree is not stayed, he would be
dispossessed from the property in dispute and in that situation, the very purpose of filing the appeal before this Court would be frustrated and the
defendant would suffer irreparable loss. It is further submitted that in the facts and circumstances of the case, final disposal of the appeal may take a
considerable long time. Thus, it is prayed that operation and execution of the decree may kindly be stayed during pendency of the appeal.
I have considered the rival submissions of the learned counsel for the parties.
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 against the defendant. By filing the application for grant of stay of the impugned judgment and decree, the equitable
discretionary jurisdiction of this Court has been invoked.
Considering the fact that the appeal has been admitted, the defendant is required to compensate the plaintiff by making payment of reasonable mesne
profits. Admittedly, the suit premises is situated in Haldiya House, Chowkri Ghatgate, Johari Bazar, Jaipur, which is a commercial area in the heart of
Jaipur City. Looking to the over all facts of this case, which include size of the premises, its location as well as the present rent of nearby shops and
the documents submitted by the plaintiff, the application filed by the plaintiff deserves to be allowed and in view of the above, it would be reasonable to
fix mesne profit @ Rs. 8000/- per month from December, 2019. All arrears of mesne profit up to November, 2019 shall be deposited in the Bank
account of the respondent within a period of two months from today. It is made clear that from the month of December, 2019 the appellant shall
deposit mesne profit at the said rate by the 15th of every succeeding month in the Bank account of the respondent. The respondent shall furnish the
details of its bank account to the defendant within 15 days from today.
Further, in case the defendant fails to deposit the amount of mesne profit in the bank account of the plaintiffs as directed above and/or the appellant
fails to make the payment of future mesne profit consecutively for four months, the plaintiff shall be free to execute the decree without further
reference to the Court.
Further, the plaintiff shall furnish solvent security and undertaking to the effect that in case the defendant ultimately succeeds in this appeal, the
amount of mesne profit so received by the plaintiff shall be paid with 9% interest per annum.
Resultantly, this stay application and application for mesne profit are allowed accordingly and execution of the impugned decree is stayed.