Point of Law: a pragmatic view is required to be taken to grant appropriate mesne profit, by directing payment of a particular amount by the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it would be a charge upon the property and if such amount as may be fixed by the Court is not paid, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence.

JUDGMENT :

1. Heard learned advocate Mr. Bhargav Bhatt assisted by learned advocate Mr. Rutvij Oza for the appellants and learned Senior Advocate Mr. Percy Kavina assisted by learned advocate Mr. D.K. Puj for the respondents through video conference.

2. Admit.

3. Learned advocate Mr. D.K. Puj, waives service of notice of admission for the respondents.

4. By this appeal under Order-43, Rule-1(r) of the Code of Civil Procedure, 1908 (for short ‘the Code’) the appellants - plaintiffs have challenged the judgment and order dated 25.02.2020 passed by the Principal Senior Civil Judge, Ahmedabad (Rural) at Mirzapur below application Exh.5 for interim injunction in Special Civil Suit no.486 of 2019, whereby the application filed by the appellants-original plaintiffs under Order-39, Rules-1 and 2 of the Code was partly allowed.

5. The brief facts of the case are as under :-

5.1 The appellants - plaintiffs filed Special Civil Suit no.486 of 2019 along with application for interim injunction at Exh.5 praying that the defendants – respondents be directed to handover the peaceful possession of the property as mentioned in the schedule of the leave and license agreement dated 8th February, 2018 being Final Plot no.88 paiki of Town Planning Scheme no.50 culminated from Revenue Survey no.36/1 of village Bodakdev, Taluka Ghatlodia, District Ahmedabad admeasuring 1733 sq. meters Including temporary construction on ground floor, first floor and second floor, total construction being 2301.5 sq. meters over the non-agriculture land known as “Hetdiv-88” (for short “the suit premises”) and to direct the respondents – defendants not to obstruct, interfere or disrupt the appellants - plaintiffs from using the premises owned by the appellants - plaintiffs and not to cause damage to the property owned by the appellants - plaintiffs. The appellants - plaintiffs also prayed to restrict the defendants-respondents from subletting the suit premises or to create any third party rights by mortgaging the same and further not to use suit premises for the purpose of restaurant, hotel or any such other purpose till the outcome of the suit.

5.2 The respondents - defendants also have preferred Special Civil Suit no.148 of 2018 against the appellants - plaintiffs wherein the daughter of the appellant no.1 was also joined as defendant and the said suit is filed along with the interim injunction application Exh.5 praying that the appellants - plaintiffs be restrained from disturbing the enjoyment of possession of the suit premises as agreed orally between the parties for the period of 10 years or till further renewal of the oral agreement. The respondents - defendants in the said suit also sought different prayers against the appellants praying for declaratory relief and seeking specific performance to execute the lease agreement for 10 years as per the oral agreement and also prayed for permanent injunction not to dispossess the respondents from suit premises.

5.3 It appears that the Principal Senior Civil Judge, Ahmedabad (Rural) vide order dated 12th April, 2018 decided Exh.5 application in Special Civil Suit no.148 of 2018 and restrained the appellants - plaintiffs from interfering with the possession and working of the restaurant by the respondents till further orders or till final disposal of the suit, whichever is earlier. It was also observed in the operative portion of the order that the claim of the respondents - defendants for oral contract and renewal of the contract upto 10 years is not acceptable and to that effect the respondents have no right to retain the possession for further period in contravention of agreement of the suit premises. However, the appellants - plaintiffs were restrained from taking or interfering with the possession of the respondents without due process of law.

5.4 Both the sides thereafter, preferred cross Appeal from Order being aggrieved by the aforesaid order dated 12th April, 2018. The respondents-defendants filed Appeal from O