- (1.) HEARD learned counsels for the parties.
(2.) BRIEFLY stated, the facts of the case are that the respondents-plaintiffs filed a suit being Civil Suit No.155/2000- Arun & Ors. Vs. Basanti Lal, for eviction against the appellant-defendant in respect of suit shop, situated in Bapu Bazar, Udaipur, which initially was let-out to appellant- defendant on monthly rent of Rs.225/- per month under oral tenancy. The respondents-plaintiffs filed the eviction suit on the ground of bonafide need of the plaintiffs-landlord as they wanted to start a restaurant in the suit premises. After hearing the parties, the learned trial court vide its judgment and decree dated 17.02.2005 decreed the suit No.155/2000-Arun & Ors. Vs. Basanti Lal, filed by the plaintiffs-respondents, and directed partial eviction of the shop, which has two separate shutters and as per the choice of the landlord, right hand side protion was decreed to be evicted by tenant. Being aggrieved by the judgment and decree dated 17.02.2005, the defendant-appellant filed appeal before the lower appellate court (Addl. District Judge, No.3, Udaipur) and the learned lower appellate court also dismissed the appeal filed by the defendant-appellant being Civil Appeal No.23/2005- LR's of Basanti Lal Vs. Arun & Ors. and affirmed the judgment and decree of partial eviction passed by the learned trial court vide its judgment and eviction decree dated 09.04.2012, against which the appellant-defendant- tenant is before this Court in the present second appeal under Section 100 of Civil Procedure Code, 1908. Mr. Deelip Kawadia, learned counsel for the appellants-defendants (legal representatives of original tenant, Basanti Lal) without arguing the present appeal on merit does not press this second appeal on merit, however, he prayed that adequate period to handover the peaceful and vacant possession of the suit shop to the extent of aprtial eviction as directed by the court below, may be granted to the defendants- appellants-tenants. Therefore, in view of undertaking of defendant-tenant to hand-over the peaceful & vacant possession of the suit shop to the plaintiff-respondent on or before 31.12.2013 with conditions given below. Both the learned counsels agree to dispose of this second appeal on the following terms and conditions:- (i) The appellants-tenants undertake to hand- over the vacant and peaceful possession of the suit premises, in dispute to the respondent on or before 31.12.2013. The respondent shall not execute the impugned decree till 31.12.2013. (ii) The appellants-tenants undertake to pay or deposit the mesne profit at the rate of Rs.5000/- per month w.e.f. September, 2012) and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondents. The arrears of mesne profit as determined by the court below, if not already paid, shall also be paid by the defendants- appellants and entire amount including the amount already deposited on this account will be disbursed to the plaintiffs-landlord. (iii) The appellants further undertake that they shall not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if he does so the same will be treated as void. (iv) The appellants shall furnish a written undertaking incorporating the aforesaid conditions in the trial Court by 28th of September, 2012 and one copy thereof along with affidavit in this Court. (v) Learned counsel for respondents-landlord will give the details of his bank account number in which the arrears of rent or mesne profit will be paid within three months from today, if any, and regular monthly mesne profit now be paid, will be deposited, which may be disbursed to the respondent-landlord. It is made clear that in case, the appellants-tenants do not comply with any of the aforesaid conditions, then it will be open for the respondents-landlord to get the decree passed in his favour executed even before the aforesaid date i.e. 31.12.2013 and the plaintiffs-landlord may also initiate contempt proceedings in this Court. With the aforesaid terms, conditions and directions, the present second appeal is accordingly dismissed as not pressed. No costs. A copy of this judgment be sent to both the parties and learned courts below forthwith.;