- (1.) SINCE the aforesaid two writ petitions have arisen out of the impugned order dated 13th July, 2010 rendered by the learned District Judge, Ajmer, whereby he ordered the petitioner tenant Vasudev to pay mesne-profit @ Rs. 5000/- (Rs. Five Thousand) per month to the landlord Abhaymal Saklecha, they have been heard together and are being disposed of by this common order.
(2.) HEARD the learned counsel for the parties and carefully perused the relevant material on record. Having considered the submissions made at the bar and carefully perused the impugned order, it is noticed that a judgment and decree with regard to eviction of the premises came to be passed by the learned trial court on 6th April, 2010. Aggrieved with this judgment and decree, the petitioner-tenant preferred an appeal, wherein one more application under Order 41 Rule 5 CPC came to be filed by the petitioner-tenant and the learned appellate court having considered the submissions of both the parties and relying upon the pronouncement of the Hon'ble Apex court as also of this Court, as referred in the impugned order, directed the petitioner-tenant to pay an amount of Rs. 5000/- per month as mesne-profits to the landlord-respondent. Learned counsel for the petitioner canvassed that the impugned order is arbitrary, perverse and not based on any material on record. The learned appellate court sans recording the evidence of both the parties arbitrarily ordered Rs. 5000/- to be paid as mesne-profits by the tenant to the landlord decree holder. He took me through one judgment in the case of Anderson Wright & Co. Versus Amar Nath Roy and others reported in (2005) 6 Supreme Court Cases 489 and an unreported judgment delivered by Hon'ble Apex Court in the case of Shankar Lal Versus Tribhuvan Das passed in SLP (C) No. 6391/2007 and contended that since the High Court directed the tenant to deposit mesne-profits sans the report of any valuer or other contemporaneous evidence, the same was set-aside. The facts of the instant case are also similar, wherein no material has been considered nor the landlord decree holder produced any evidence with regard to the value or the prevailing rent of the premises, where the same is being situated. E Converso, the learned counsel for the respondent no. 2 relying upon the judgment of Hon'ble Apex Court rendered in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd., reported in (2005) 1 SCC 705 contended that the appellate court was required to pass an order with regard to mesne-profits based on the robust common-sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record. The learned appellate court, in the instant case, considered all these facts and thereafter passed the impugned order with regard to Rs. 5000/- to be paid per month as mesne-profits to the landlord-decree holder. I have considered the submissions made at the bar and carefully perused para no. 9 and 19 of the judgment of Hon'ble Apex Court delivered in the case of Atma Ram (supra), wherein the Hon'ble Apex Court has observed thus: Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on.
(3.) HONOURABLE Apex Court further held that, there is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. Adverting to the facts of the instant case, it is noticed that the appellate court considered all these aspects ad-longum. The appellate court not only considered the facts of the case and the attending circumstances, but applied his own experience and the common knowledge with regard to the situation of the suit premises. Learned appellate court also considered the judgment of Anderson Wright & Company (supra) as also the Amrit Lal Garg Versus Additional District Judge No.3, Ajmer. It has been observed by the learned District Judge that earlier when the suit premises were let out to the petitioner-tenant in the year 1984, the rent of the premises was only Rs. 200/-, but this rent, later-on, was raised to the amount of 586/- per month. It has been categorically indicated in the order that the suit premises are located in the heart of the city Ajmer. It is a commercial complex, which has got a high commercial value and keeping in view all these circumstances and applying his personal experience and knowledge, ordered an amount of Rs. 5000/- per month to be paid by the petitioner tenant to the respondent no.2 landlord as mesne profits. The impugned order, as argued by the learned counsel for the petitioner, is not found to be arbitrary or perverse, conversely it seems to be just and apt, which to my firm view, warrants no intervention. Jurisdiction under Article 227 of the Constitution cannot be invoked to upset the pure findings of fact. Under Article 227 of the Constitution, this Court is expected and required to exercise extraordinary jurisdiction only in a case where the impugned order is found to be totally perverse, contrary to material on record or it results in manifesting injustice. ;