The main legal point established is the application of principles from Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 and the Rajasthan Rent Control Act, 2001, to determine mesne profit and provide for its annual increase until the decision of the appeal.

ORDER

1. The matter has come up on an application filed by respondents-decree holder for fixation of mesne profit of the suit shop.

2. It appears from the record that the dispute between parties is about one shop measuring 15 X 30 ft. situated at Ward No.2, Raiwasa Wala Katla, outside Bawadi Gate, Sikar, let out in the year 1963 and the present rate of rent is said to be Rs.45 per month, wherein the appellant is carrying on his cloth business. The respondent filed an eviction suit way back in the year 1987 on grounds of default of payment, subletting and on account of death of the original tenant, which was dismissed by the trial Court vide judgment dated 22.01.2005 granting benefit of first default. Respondents filed first appeal, which was allowed vide judgment dated 23.11.2016 and a decree for eviction has been passed against appellant-defendant. The appellant-defendant has preferred this second appeal against the decree for eviction dated 23.11.2016. The second appeal has been admitted for hearing on formulation of substantial questions of law vide order dated 3rd January, 2018. Thereafter respondents-decree holder have filed the present application on 31.08.2021 for seeking fixation of mesne profit of the shop in question.

3. The learned counsel for respondents submits that the appellant is at present paying rent Rs.45 per month. The shop, which is situated in the main market of Sikar and at present this shop can fetch the rent at least 35,000/- per month. In support of his contention, a lease deed dated 23.04.2019 for another shop, alleged to be situated near about 300 Mtrs. far from the suit shop has been placed on record; by way of this lease deed, the shop measuring 7 X 19 ft. was let out at the rate of Rs.32,000/- per month w.e.f. 01.04.2019. Another document of DLC rate for the commercial premises of the area have also been placed on record. Learned counsel for respondents has prayed that since appellant is enjoying possession of suit shop during the appeal, hence he may be directed to pay mesne profit and for the shop in question the mesne profit be determined in between Rs.32-35,000/- per month and that too from the date of decree for eviction i.e. 23.11.2016.

4. Per contra, learned counsel for appellant has filed reply to the application and contended that respondents are not accepting the appellant as their tenant rather treating him as trespasser, therefore, they are not entitled to claim mesne profit. In alternative, it has been submitted by appellant that business in the market is not flourishing, therefore at the most, the mesne profit at the rate of 3,000/- only can be determined. He has placed on record one lease deed dated 17.09.2021, to substantiate the rate of mesne profit at the rate of 3,000/- per month.

Heard learned counsel for both parties and perused the material on record.

5. Having heard learned counsel for both parties and after perusal of the material placed on record, it is clear that the suit shop mesuring 15 X 30 ft. is situated at Ward No.2, Raiwasa Wala Katla, outside Bawadi Gate, Sikar and the existing rent is Rs. 45/-per month, since the time of filing of the suit way back in 1987. For the purpose of determination of mesne profits during pendency of appeal, the guidelines and principle propounded by the Hon’ble Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 may be taken into consideration. The lease deed produced by parties are not helpful to determine the mesne profit of the shop in question as both lease deeds are of the premises of which size, location, period of tenancy and nature of business is different. None of the parties has produced rental valuation report. During course of arguments, the photographs of shop in question in shutter closed position have been shown to show that shop is situated in old market and not like a showroom.

6. Thus, considering the size and situation of the suit shop and also the nature of business carried