Prashant Kumar Agarwal, J. - (1.) THE matter comes up for orders on application No. 31102 dt. 14.10.2011 filed by the plaintiff -respondent (Landlord) under Order 4 Rule 5 read with Sec. 151 CPC for grant of mesne profits during pendency of this appeal. It is an admitted fact that the suit shop is situated on main M.I. Road, Jaipur in a commercial -cum -residential building known as "Duggar Bhavan" and it was let out to the defendant -appellant (tenant) years back at the rate of Rs. 46 per month.
(2.) BRIEF relevant facts for the disposal of this application are that the plaintiff -respondent filed suit for eviction on the ground of default in payment of rent and recovery of arrears of rent against the defendant -appellant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to "Act 1950") which was registered as Civil Suit No. 1344/1993 and the same was dismissed by the trial Court vide judgment and decree dt. 15.4.1998. Against that decree the respondent filed Civil Regular Appeal No. 7/2011. 29/1998) and the same was allowed by the appellate Court vide judgment and decree dt. 14.5.2011 and the suit filed by the respondent was decreed. The tenant -appellant has filed this Civil Second Appeal under Sec. 100 of the Code of Civil Procedure and the same was admitted vide order dt. 27.7.2011 on substantial questions of law after hearing both the parties. While admitting the appeal this Court granted liberty to the respondent to claim mesne profits by filing a separate application. In these circumstances, the plaintiff -respondent has filed the present application for award of mesne profits at the rate of Rs. 20,000/ - per month. Reply to the application has been filed by the appellant on 5.5.2012. Rejoinder to the reply has been filed by the respondent on 21.5.2012 denying the contents of the reply. It is also an admitted fact that during the pendency of the present suit, the respondent -landlord filed Civil Suit No. 78/2002 under Sec. 6 of the Act claiming standard rent and the same is still pending in the concerned Court but vide order dt. 7.12.2010 provisional rent at the rate of Rs. 1000/ - per month has been determined by the Court. In the instant application following two questions arise for consideration and decision of this Court. (1) Whether mesne profits at a rate exceeding the provisional rent determined by the Competent Court vide order dt. 7.12.2010 can be awarded by this Court during pendency of this appeal. (2) If yes, at what rate mesne profits are to be awarded
(3.) IT was submitted by the learned counsel for the appellant that in the suit filed by the respondent under Sec. 6 of the Act for determination of standard rent in respect of the suit shop, he himself has claimed that standard rent may be fixed at the rate of Rs. 1000/ - per month and during the pendency of the suit provisional rent at the rate claimed by the respondent has been fixed/determined by the Court vide order dt. 7.12.2010 and, therefore, neither the respondent can claim mesne profits at a rate exceeding the rate of standard rent nor this Court can award the same at a higher rate.;