JAIN, J. - (1.) HEARD learned counsel for the parties.
(2.) BOTH the writ petitions by both the parties arise out of one suit, therefore, they were heard together and are being disposed off finally by this common order. Plaintiffs, (who are petitioners in Writ Petition No. 14226/2009 and Respondents No. 2 and 3 in Writ Petition No. 11899/2010) filed a suit for eviction in respect of rented premise way back on 01.08.1983 in the trial court, which was decreed in their favour on 23.05.2009. Being aggrieved with the same, the defendants filed an appeal before first appellate court alongwith an application for grant of stay against eviction of defendants under Order 41 Rule 5 read with Section 151 C.P.C. Learned counsel for the plaintiffs filed reply to the application and opposed the prayer regarding grant of stay against eviction decree and in alternate, it was submitted that in case, an interim order staying the execution of the decree of eviction is passed, then mesne profit may be increased, as per prevalent market rate, than the agreed rent during the pendency of the appeal. In support of his contention, he referred judgments of Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., (2005) 1 SCC 705 and Anderson Wright & Company vs. Amar Nath Roy, 2005 DNJ (SC) 562 = RLW 2005(3) SC 425, as well as of this Court in Madan Bansal vs. Ram Narain Sharma, 2006(2) RLW 1448 and Datu Mal vs. Seth Madan Gopal, 2007 (4) WLC (Raj.) 524. Learned first appellate court i.e. Additional District Judge No. 8, Jaipur City, Jaipur vide its order dated 26.08.2009 passed stay order against eviction of the defendants without increasing the amount of mesne profit @ Rs. 425/- per month only, as awarded by the trial court, as per agreed rent of 1983. Being aggrieved with the same, the Plaintiffs have preferred S.B. Civil Writ Petition No. 14226/2009 for enhancement of the amount of mesne profit of the rented premise as per prevalent market rate of rent during pendency of first appeal. S.B. Civil Misc. Writ Petition No. 11899/2010 has been preferred by the defendants challenging order dated 31.07.2010 passed by the first appellate court, whereby the application filed by the defendants under Order 6 Rule 17 read with Section 151 C.P.C. for amendment in written statement has been rejected. Submission of learned counsel for the plaintiffs-petitioners in Writ petition No. 14226/2009 is that it is settled law that while granting stay against eviction of defendants, appellate court, under Order 41 Rule 5 C.P.C, has got jurisdiction to impose any reasonable condition and can enhance the amount of mesne profit than agreed rent. The judgments of Hon'ble Supreme Court and of this Court were fully applicable in the facts and circumstances of the present case, which were wrongly distinguished by the first appellate court. He also referred two rent notes wherein rate of monthly rent of the properties situated at M.I. Road, Jaipur has been shown as Rs. 80/- per sq. feet and Rs. 128/- per sq. feet. He further submitted that the rent notes submitted by him are of the year 2005, whereas present market rate of monthly rent is about Rs. 150 sq. feet. The measurement of disputed rented premise is 800 sq. feet, it is a big showroom situated in prime location of Jaipur, i.e. M.I. Road, Jaipur, in front of Ganpati Plaza, a famous commercial complex and nearby All India Radio Office, Jaipur, therefore, a sum of Rs. 1,20,000/- per month should have been determined as mesne profit by the first appellate court in place of monthly mesne profit of Rs. 425/-, as per agreed rent.
(3.) LEARNED counsel for the respondents-defendants submitted that learned first appellate court rightly distinguished the judgments of Hon'ble Supreme Court as well as of this Court and rightly awarded mesne profit @ Rs. 425/- per month. He has also filed written reply to the writ petition alongwith one rent note dated 02.12.2008 of nearby shop, wherein property of the same size was let out @ Rs. 10,500/- per month and on that basis, he contended that at the most the market rate of monthly rent of the rented premise can be determined as Rs. 10,500/- per month and not Rs. 1,20,000/- per month, as claimed by the petitioners. So far as writ petition No. 11899/2010 is concerned, learned counsel for the defendants-petitioners submitted that some properties of the plaintiffs were vacated and they got possession of the same, therefore, the subsequent events with regard to availability of those properties to the plaintiffs were required to be considered while deciding the first appeal, as present suit for eviction was based on personal bonafide necessity, therefore, an application under Order 6 Rule 17 read with Section 151 C.P.C. was moved for amendment in the written statement, but trial court wrongly rejected the same vide order dated 31.07.2010, therefore, their application is liable to be allowed and amendment sought in the written statement should be allowed. Learned counsel for the plaintiffs-respondents submitted that learned trial court has rightly rejected the application. However, during the course of arguments, he agreed that instead of allowing the amendment, which may further delay the matter, the court concerned be directed to consider the said subsequent events alongwith plaintiffs' explanation about it, given in the reply to the application, at the time of final hearing of the appeal. ;