Sunder Das vs Usha Chaukadiwal

R.S. Chauhan, J.—Mr. Sunder Das, the petitioner, is present before this Court as the learned members of the Bar are abstaining from work today.

The petitioner has challenged the orders dated 20.3.2014 and 5.4.2014. By the former order the learned Addl. District Judge, Kekri, had dismissed the application under Order 41, Rule 5 CPC. By the latter order, he has dismissed the review petition filed by the petitioner.

The brief facts of the case are that the respondent-plaintiff filed a suit for ejection against the petitioner u/s 106 of the Transfer of Property Act, which was decreed by Civil Judge (Jr. Div.), Kekri, in favour of the plaintiff on 5.9.2012. The petitioner filed appeal against the aforesaid judgment and decree. The appellate court by interim order dated 6.12.2012 stayed the operation of the judgment and decree subject to the condition that the petitioner shall pay Rs. 1000/- as mesne profit to the respondent-plaintiff. Challenging the aforesaid interim order, respondent-plaintiff filed a writ petition before this court. By order dated 6.2.2014 this court quashed the order dated 6.12.2012 and directed the appellate court to decide the application of petitioner-defendant, afresh, filed under Order 41, Rule 5 CPC in accordance with law. It further directed that till the application is decided by the appellate court, the petitioner shall continue to pay Rs. 1000/- per month by way of mesne profit. On the directions of this court, the appellate court on 20.3.2014 decided the application filed under Order 41, Rule 5 CPC, stayed the operation of the judgment and decree dated 5.9.2012. However, it enhanced the mesne profit to Rs. 3000/- per month payable from the date of filing of the application i.e. 19.9.2012. The review petition filed against the order of appellate court dated 20.3.2014 also stood dismissed by order dated 5.4.2014. Hence, this petition before this court.

The petitioner has pleaded that the increase of mesne profit from Rs. 1000/- to Rs. 3000/- is too steep an increase. In fact, the rental value of the property in dispute is not Rs. 3000/-. Secondly, while passing the impugned order, the learned judge has directed that Rs. 3000/- should be paid from 19.9.2012 till present. However, on the previous occasions he was directed to pay Rs. 1000/- as mesne profit, which he has being paying from 19.9.2012 till present. Therefore, he cannot be asked to pay Rs. 3000/- from 19.9.2012 onwards. Hence, the order dated 20.3.2014 deserves to be interfered with. Lastly, that the order dated 5.4.2014 had been passed in a mechanical manner. In fact, considering the mistake made by the learned judge, learned judge ought to have reviewed the order dated 20.3.2014.

Heard the petitioner in person, and perused both the impugned orders.

A bare perusal of the impugned order clearly reveals that the learned judge has noticed the fact that according to the respondent-landlord the rental value of the godam under the petitioner''s occupation was Rs. 7000/- per month. In order to establish this fact she had submitted certain affidavit of the shopkeepers within the vicinity of the property in dispute. On the other hand, the petitioner had contended that the value of the nearby properties is not as high as Rs. 7000/-. After considering the evidence produced by both the sides, the learned judge had concluded, and rightly so in the opinion of this court, that although the rental value may not be as high as Rs. 7000/- per month, but considering the fact that in October 2002 the premises in dispute was rented out for a sum of Rs. 375/- per month, considering the fact that in the last twelve years there has been a rise in rental value of the property, he was justified in increasing the mesne profit from Rs. 1000/- to Rs. 3000/- per month. Thus, the first plea raised by the petitioner is unacceptable.

The second plea raised by the petitioner is highly misplaced. For, according to the operative portion of the impugned order, the learned judge has clearly directed that Rs. 1000/- already paid by the petitioner shall be deducted from the mesne profit of Rs. 3000/- per month to be paid by him. Therefore, the learned judge has not directed the petitioner to pay a mesne profit of Rs. 3000/- per month from 19.9.2012 till present. Therefore, from 19.9.2012 till present (the last date on which Rs. 1000/- was already paid as mesne profit) would have to be deducted, and the petitioner is required to merely pay Rs. 2000/- per month for the said period. Therefore, even the second plea raised by the petitioner is without any merit.

A bare perusal of the impugned order dated 5.4.2014 clearly reveals that the learned judge has rightly concluded that there is no error apparent on the fact of the record. Therefore, the power of review cannot, and should not be exercised in the present case. Since the learned judge has given cogent and convincing reasons in the impugned order dated 5.4.2014, there is no reason for this Court to interfere in the said order.

For the reasons stated above, this Court does not find any illegality or perversity in the impugned orders dated 20.3.2014 and 5.4.2014. Therefore, being devoid of any merit this petition is, hereby, dismissed. Consequently, the stay application, too, stands dismissed.