M/s Ganpat Udhyog And Ors vs Lrs Of Jagdish Prakash And Ors

Appellant-defendants have preferred this second appeal aggrieved by judgment & decree dated 2nd of February, 2019, passed by Addl. District Judge No.1, Jodhpur Metropolitan (for short, 'learned lower appellate Court'), whereby the learned lower appellate Court has dismissed the appellants' appeal and affirmed judgment and decree dated 28th of May, 2011 passed by Addl. Civil Judge (Sr. Div.) No.1, Jodhpur Metropolitan (for short, 'learned trial Court'). The learned trial Court, by the judgment and decree dated 28th of May, 2011, allowed the suit filed by respondent-plaintiff, Jagdish Prakash, for eviction against appellant-defendants.

Brief facts, giving rise to the present appeal are that respondent-plaintiff filed a suit for eviction against appellant-defendants stating that the suit property situated at 5th A Road, Jodhpur was taken on rent by appellant-defendants on rent @ of Rs.1,000 per month. The plaintiff pleaded bona fide necessity for running school in the rented premises by his wife Smt. Komendri. Written statement to the plaint was filed by appellants refuting the averments of plaint in toto while raising preliminary objections 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 defendants to vacate the suit property within a period of two months. The judgment and decree passed by learned trial Court was challenged by appellant-defendants before lower appellate Court, and the learned lower appellate Court vide judgment and decree dated 2nd of February, 2019 dismissed the appeal.

Learned counsel for the appellant-defendants, upon instructions, submits that the appellant-defendants 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 premises.

Learned counsel for the respondent-landlord has very candidly accepted the proposal of learned counsel for the appellants to allow some time to the appellants 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. 2nd of February, 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 2nd of February, 2019 is accepted by learned counsel for the appellants without any demure.

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

(i) The appellant-defendants 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 2nd of February, 2019 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-defendants shall undertake that they 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 they do so, the same will be treated as void.

(iv) The respondent-plaintiff will furnish the details of bank account number in which the mesne profit and regular mesne profit is now to be paid. Arrears of mesne profit is to be deposited by appellant-defendants within a period of three months from today.

The appellants shall submit a copy of the undertaking before this Court along with his affidavit. It is made clear that in case the appellant-defendants 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 appellant-defendants.

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

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