JUDGMENT
Khem Chand Sharma, J.
1. The plaintiff respondent filed a suit against the defendant appellant for possession, permanent injunction and mesne profits, which, at the conclusion of trial came to be decreed by the learned Additional District Judge (Fast Track) No. 3, Jaipur City, Jaipur. Feeling aggrieved by the judgment and decree, the defendant appellant has resorted to the provisions of Section 96 CPC by filing the present appeal.
2. On 29.8.2005 this Court after hearing arguments of counsel for the parties, while admitting the appeal ordered that execution of the impugned decree passed by the trial Court shall remained stayed, provided the appellant deposits the decreetal amount before the trial Court within sixty days and the plaintiff respondent was granted liberty to file application for modification of this stay order.
3. On 18.1.2006, the plaintiff respondent Filed an application under Section 151 C.P.C. Stating therein that at the time when suit was filed in the year 1996 the rent of the demised premises was Rs. 2000/- and presently the rent of similar premises in the vicinity is about Rs. 20,000/- per month. Two documents, Annexures A/1 and A/2 evidencing the rate of rent in the vicinity have also been filed along with the application and it has been prayed that rent/mesne profits for the premises be fixed at Rs. 20,000/-per month during pendency of the appeal. The defendant appellant filed reply to the application under Section 151 CPC filed by the respondents, stating that the trial Court has already granted Rs. 2000/- as mesne profits and that the plaintiff respondent has forcefully taken possession of the first floor of the suit property after the judgment of the trial Court and before grant of stay order by this Court. The defendant appellant has further averred that the documents annexed with the application under Section 151 C.P.C. have been manipulated with an ulterior motice to harass him. According to the appellant, the respondent cannot ask for the amount higher than the amount claimed in the suit itself. The appellant further submitted that the construction in the suit premises is of the year 1961. The respondent has also filed rejoinder to the reply, thereby denying the allegation that he has forcefully taken over possession of the first floor. However, the respondent has admitted that he utilized first floor of the suit premises as owner thereof. To support his side, learned Counsel for the respondent has relied upon two decisions of the Apex Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. and Anderson Wright and Co. v. Amar Nath Roy .
4. Per contra, learned Counsel for the appellant has strenuously contended that both the cases relied upon by the counsel for the respondents arise out of the provisions of Rent Control Act, whereas the present dispute is between the brothers regarding joint family property and therefore, the cases relied upon by the counsel for the respondent has no application to the facts of the present case. Learned Counsel further argued that the plaintiff respondent has claimed mesne profits @ Rs. 2000/- per month in the plaint itself and the learned trial Court has granted a decree for Rs. 12,000/- and held the plaintiff entitled to get Rs. 2000/- per month as mesne profits from the date of filing of suit till possession of the suit property is handed over. In these circumstances, according to the counsel for the appellant, the court cannot grant mesne profits beyond the rate demanded by the landlord. In support of his argument, learned Counsel has relied upon a Division Bench judgment of Andhra Pradesh High Court in R.V. Bhupal v. Saleha Begum @ Shehensha Begum 2001 (2) Rent Control Reporter 648. Lastly, learned Counsel contended that construction of the suit premises is very old and possession of first floor has already been taken over by the plaintiff respondents and therefore, the plaintiff respondent is not entitled to receive even mesne profits @ Rs. 2000/- per month as allowed by the learned trial court.
5. I have given my anxious consideration to the rival submissions and have gone through the impugned judgment, the evidence and the law cited at the bar. So far as first argument is concerned, suffice it to observe that Order 41 Rule 5 CPC is applicable not only to the appeals arising out of the provisions of Rent Control Act, but it applies to all appeals and where a prayer to stay the execution of decree is made in an appeal, it shall be considered under the provisions of Order 41 Rule 5 CPC.
6. The statement of the learned advocate appearing for the appellant to the extent that plaintiff claimed mesne profits @ Rs. 2000/- per month and the trial Court accepted the said claim is factually correct. Thus, the question now remains to be considered is whether the court can grant mesne profits exceeding the rate demanded by the land lord? In R.V. Bhupal Prasad (supra) relied upon by the counsel for the appellant, it was held by the Division Bench of Andhra Pradesh High Court that since the first respondent herself restricted her claim from 1.1.1984 to 30.11.1985 at Rs. 3000/-per month and did not choose to amend the plaint, nor filed a rejoinder claiming higher amount as damages for that period, she cannot be granted a higher rate of mesne profits than claimed by her from 1.11.1984 to 30.11.1985. She was held entitled to mesne profits from 1.12.1985 till the date of recovery of possession at such rate as may be determined by the court or a Commissioner appointed for that purpose under Order 20 Rule 12 C.P.C. Thus the Division Bench answered the question by holding that after the date of filing the suit, mesne profits can be determined by the court or a Commissioner appointed for that purpose under Order 20 Rule 12 C.P.C.
7. In Atma Ram Properties (P) Ltd. (Supra), their Lordships of the Apex Court held that landlord-tenant litigation constitutes a large chunk of litigation pending in the courts and tribunals. The litigation goes on for unreasonable lengths of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. It is thus evident that while passing order of stay under Rule 5 of Order 41 CPC, the appellants court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of appeal being dismissed and in so far as those proceedings are concerned. It must, therefore, be held that this Court is competent to impose reasonable terms to compensate the decree holder while passing an order under the provisions of Order 41 Rule 5 CPC.
8. The plaintiff respondent in support of contents of his application under Section 151 CPC to the effect that suit premises could have been let out at the rate of Rs. 20000/-per month has filed two documents. Ex. A/2 is the rent note executed by landlord Sushil Kumar in favour of M/s. Kaya Kulp Care of Kulsum Malik for the purposes of use of premises for non:residential purpose. Another document Ex. A/1 is the lease deed executed by Smt. Shanti Bisnoi in favour of Anil Malik which shows that tenanted premises viz., Flat No. G2 consists of built up area of 1188 Sq. feet and is a part of multi storied building Rompam Enclave.
9. In the case at hand the disputed premises have old construction with open space and therefore, same standard to assess the rent cannot and should not be applied. However, considering the total area of the disputed property, I feel that mesne profits should be taken at the rate of Rs. 4000/- per month, which in my considered view would be just and reasonable.
10. Accordingly, the defendant appellant is directed to deposit/pay to the plaintiff respondents the monthly mesne profits @ 4000/- per month with effect from 1.8.2006 by 15th day of each succeeding month. The plaintiff respondent shall furnish details of his bank account to the defendant appellant and the defendant appellant, in turn, shall deposit the monthly mesne profits in the bank account of plaintiff respondent. The respondent decree holder will be entitled to with draw the amount on month to month basis. It is made clear that in case the first appeal is ultimately allowed in favour of the defendant appellant, the decree holder (plaintiff respondent) shall be liable to repay the entire amount with interest to be decided at the time of decision of the appeal and shall furnish an undertaking to this effect before the Deputy Registrar (Judicial) of this Court within 15 days from today.
11. The stay order dated 29.8.2005 passed by this Court stands modified accordingly.