- (1.) Under O. XLI R. 5 CPC read with Section 151 CPC, execution of the decree of eviction passed by Civil Judge (JD), Sujangarh, District Churu on 15.12.2012 in Civil Original Suit No. 28/2010 titled as Krishna Kumar vs. Mohan Lal & Ors. was stayed in the following terms: The petitioner-tenant Mohan Lal has challenged the veracity of the order dated 23.7.2013 passed by Addl. District Judge, Churu (the then officer of the link Court of Addl. District Judge, Sujangarh). During the hearing of this writ petition, on 1.8.2013 it was ordered by this Court that "the petitioner may not be dispossessed from the rented premises, provided he deposits mesne profits at the rate of rupees five thousand per month from today". This order when passed, was supposed to be operative only upto 19.8.2013 but the interim stay order has been continued since then.
(2.) In the petition, the petitioner has argued that the agreed rent of the shop in question was only Rs. 208 and paise 33 per month only, so imposing the condition of making payment at the rate of rupees ten thousand per month as mesne profits from the date of filing of appeal is highly arbitrary, unreasonable and without any evidence. The petitioner has argued that the respondent-plaintiff did not file any reply to the stay petition in the court of Addl. District Judge, Churu and he had also not led any evidence regarding rental value of the shop in question, so the arbitrary order should be quashed. It has been argued on behalf of the petitioner that an undertaking of rupees one lac was also demanded from him and no sufficient time was given to submit the undertaking and further only one month's time has been given to him to vacate the premises if the appeal is decided against him. The petitioner submits that all these conditions are harsh and arbitrary and biased in favour of the landlord. The petitioner relies upon he following ruling:- (1) State of Maharashtra & Anr. vs. M/s. Super Max International Pvt. Ltd. & Ors., 2010 AIR(SC) 722 . In this case it was held that, no doubt the court can stay execution of the order on terms including a direction to pay monthly rent at a rate higher than contractual rent, but the court should also make provisions for the situation when the tenant's appeal is allowed and eviction decree is set aside. In that event, naturally, the status quo ante would be restored and the tenant would be entitled to get back all the amounts that he was made to pay in excess of the contractual rent. That being the position, the amount fixed by the Court over and above the contractual monthly rent, ordinarily, should not be directed to be paid to the landlord during the pendency of the appeal. The deposited amount along with he accrued interest, should only be paid after the final disposal to either side depending upon the result of the case. In case for some reasons the Court finds it just and expedient that the amount fixed by it should go to the landlord even while the matter is pending, it must be careful to direct payment to the landlord on terms so that in case the final decision goes in favour of the tenant the payment should be made to him without any undue delay or complication. On the other hand, the respondent relied upon the following rulings: (1) Atma Ram Properties (P) Ltd. vs. Federal Motors Pvt. Ltd., 2005 1 SCC 705. In this case, the contractual rent was Rs. 371.90 p. per month and the Hon'ble Supreme Court had upheld the order of the Tribunal whereby the tenant was ordered to pay rupees fifteen thousand per month in addition to the contractual rent. (2) Udai Chand vs. Shanker Lal & Ors., 1978 AIR(SC) 765 In this case, Hon'ble the Supreme Court has held that the tendency to file appeal in hopeless cases only to gain time and ward off eviction has assumed alarming proportions and so the tenant cannot be permitted to hold up their evictions indefinitely on flimsy grounds. It was also held in this case that abuse of process of law should not be allowed in such matters. (3) Jai Singh vs. Leela Saraf, 2013 1 RajLW 757. At this stage, this judgment of the Rajasthan High Court is not much relevant. (4) Maria Magarida Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria (Dead) through LRs.,2012 DNJ 494. In this case, it was held by Hon'ble Supreme Court that in even in interim ex parte order, the court can impose the reasonable conditions. (5) Bhanwar Lal @ Bhori Lal (Late) through Lrs. vs. Nirmal Kumar Duggar HUF,2012 3 DNJ 1604 In this case, shop was let out about sixty years ago and so considering the facts of the case, mesne profits at the rate of rupees ten thousand per month from May, 2011 in addition to provisional rent were allowed by the Hon'ble High Court. (6) Alok Kumar Sharma vs. Smt. T. Hemlatha, 2013 AIR(AP) 7. In this case, it was held that when future mesne profits were determined considering the location of premises existing rent and trend rising in rental values, then the appellate Court has every power to grant future mesne profits without any enquiry in this respect. (7) R.K. Bansal vs. Jag Pravesh Sharma,2013 DNJ 27. In this case, mesne profits were fixed at the rate of rupees fifteen thousand per month and the High Court had directed he tenant to pay mesne profits at the rate of rupees twenty five thousand per month, then Hon'ble the Supreme Court refused to interfere in such an order. (8) Rajendra Sirohia vs. Sr. Amitava Gupta & Anr., S.A. No. 29/2012 decided on 18.5.2012. In this case, mesne profits were fixed at the rate of ten thousand per month but the landlord was allowed to withdraw only an amount of rupees four thousand per month and rest of the amount was ordered to be kept in fixed deposit in any nationalized bank.
(3.) I have perused all the rulings submitted by the parties in the case. In the circumstances of the case and after perusal of the judgment of the lower court, looking to the location of the premises, existing rent and the rising trend in rental values, the impugned order passed by Addl. District Judge, Churu on 23.7.2013 is upheld subject to the following conditions: (1) the appellant-tenant will be allowed to submit a bail of rupees one lac with the undertaking mentioned in the impugned order within two months from today before the Addl. District Judge, Suratgarh. (2) in case, the appeal is decided against the petitioner, then the appellant will be allowed two months time to vacate the premises. (3) from the date of filing of the appeal before the first appellate Court, the appellant will have to deposit rupees eight thousand per month as mesne profits in addition to contractual rent in the first appellate court and out of this amount of mesne profits, only rupees five thousand per month may be withdrawn by the landlord and the remaining amount of rupees three thousand per month will be kept in a fixed deposit in a nationalized bank so that this amount along with interest accrued on it may be given at the time of judgment of appeal to the person who will be entitled as per the judgment of the appeal to receive this amount. (4) the landlord will have also to give an undertaking before the first appellate court that if the appeal is decided against him then he will return the amount to the tenant within two months from the date of the decision of the appeal against him. The petition as well as the stay petition stand disposed of accordingly. Copy of this order be sent to the Court below immediately by speed post.;