Chandra Prakash vs Dinesh Kumar

Appellant-defendant has preferred this second appeal aggrieved by judgment & decree dated 11th of July, 2019, passed by Addl. District Judge No.2, Abu Road, District Sirohi (for short, 'learned lower appellate Court'), whereby the learned lower appellate Court has dismissed the appellant's appeal and affirmed judgment and decree dated 3rd of January, 2017 passed by Civil Judge Abu Road, Sirohi (for short, 'learned trial Court'). The learned trial Court, by the judgment and decree dated 3rd of January, 2017, allowed the suit filed by respondent-plaintiff for possession and arrears of rent against appellant-defendant.

Brief facts, giving rise to the present appeal are that respondent-plaintiff filed a suit for possession and arrears of rent against appellant-defendant stating that the suit property (shop) situated at Pathar Gali, Abu Road was taken on rent by father of appellant-defendant Kisturchand on rent @ Rs.70/- per month. It is also averred that after death of Kisturchand, appellant is in possession of the shop and total rent of Rs.9,000/- is due to him. A notice dated 5th of April 2008, terminating tenancy was sent to the defendant by the plaintiff-landlord. Written statement to the plaint was filed by appellant refuting the averments of plaint in toto while raising additional plea to support their case.

Learned trial Court, on the basis of pleadings of rival parties, framed issues for determination and thereafter rival parties tendered ocular as well as documentary evidence. Learned trial Court, thereafter, proceeded to decide the issues and after appreciating the evidence available on record decreed the suit filed by respondent-plaintiff directing the defendant to vacate the suit property within a period of two months and to pay rent of Rs.1,500/- per month for use and occupation from the date of filing of the suit till handing over the possession.

The judgment and decree passed by learned trial Court was challenged by appellant-defendant before lower appellate Court, and the learned lower appellate Court vide judgment and decree dated 11th of July, 2019 dismissed the appeal.

Learned counsel for the appellant-defendant, upon instructions, submits that the appellant-defendant is not pressing the appeal on merits but craving that a reasonable time may be allowed to them to handover vacant and peaceful possession of the suit property.

Learned counsel for the respondent-landlord has very candidly accepted the proposal of learned counsel for the appellant to allow some time to the appellant for vacating the rented premises. After thorough deliberations, learned counsel for the respondent-landlord has agreed to allow a reasonable time to the appellants to vacate the premises latest by 31st of August, 2020 subject to paying mesne profit @ Rs.3000/- per month from the date of judgment and decree passed by the learned lower appellate Court, i.e. 11th of July, 2019, till handing over vacant possession of the suit premises to respondent-plaintiff.

The aforesaid reasonable period to vacate the premises with mesne profit @ Rs.3000/- per month from 11th of July, 2019 is accepted by learned counsel for the appellant without any demure.

Accordingly, the present second appeal of the appellantdefendant is closed with a direction to the appellant-defendant to furnish a written undertaking in the trial Court within a month incorporating following conditions:

(i) The appellant-defendant shall hand-over the vacant and peaceful possession of the suit property in dispute to the respondent-plaintiff on or before 31st August, 2020 and shall not cause any damage to the rented property and also shall maintain the same as it is and the respondent-plaintiff shall not execute the impugned decree till 31st August, 2020.

(ii) The appellant-defendants shall pay arrears of mesne profit @ Rs.3000 per month from 11th of July, 2019 and arrears of rent as determined by the learned trial Court within four weeks from today and will further continue to pay mesne profit every month by 15th day of the next succeeding month or in advance to the respondent uptil vacant possession is handed over to the respondent-landlord.

(iii) The appellant-defendant shall undertake that he will not sub-let, assign or part with the possession of the suit premises or any part thereof in favour of anyone else and would not create any third party interest in the same during the aforesaid period and if he do so, the same will be treated as void.

(iv) The respondent-plaintiff will furnish the details of bank account number in which the arrears of rent, mesne profit and regular mesne profit is now to be paid.

The appellant shall submit a copy of the undertaking before this Court along with his affidavit. It is made clear that in case the appellant-defendant do not comply with any of the aforesaid conditions, then it will be open for the respondent-plaintiff to get the decree executed forthwith even before the aforesaid date, i.e., 31.08.2020, and the respondent-plaintiff may also initiate contempt proceedings in this Court against the appellantdefendant.

With the aforesaid terms, conditions and directions, the present second appeal of the appellant/defendant is, accordingly, disposed of. No costs.

A copy of this judgment be sent to the learned Courts below forthwith.