The court established that mesne profits must reflect actual use and compliance with prior orders, not merely potential commercial value.

JUDGMENT

This matter has come-up on misc. application No.48366/2019,filed under Order 41 Rule 5 read with Section 151 of CPC, to direct the appellants to pay the mesne profits as per the prevailing rate (@ Rs. 10,300/- per month) w.e.f. 01.07.2019 onwards until the decision of this first appeal.

It has been submitted that the appellants have filed the present first appeal against the judgment and decree dated 24.03.2018, whereby and whereunder, respondent-applicant has been entitled to get the possession of the suit property along with mesne profits. The possession of the appellants over the suit property is unauthorized, particularly after passing of the judgment and decree. However, in the first appeal, vide order dated 28.05.2019, this Court had protected the possession of appellants by staying the execution of the impugned decree during the course of pendency of first appeal, subject to mesne profits as ordered in the impugned decree. Simultaneously, liberty was granted to the respondent/plaintiff to move application for enhancement of amount of mesne profits.

The suit property is a plot. As per its location, standing construction and use, the market has been assessed by the Chartered Civil Engineer and Registered Valuer on the basis of prevailing DLC rate of the land and cost of construction with depreciation. The suit property can be used for commercial purposes as on both sides of its entrance, two shops are located having openings towards the main road of Naya Bazar. The suit property can be used for construction of commercial complex by the respondent/s. Thus, the suit property is situated in thickly populated market and has a huge importance of commercial value. So, mere present use by appellants and present construction of tin shedded rooms would not adversely affect the utility of the suit property for commercial purposes. It is, therefore, prayed that this application may be allowed and the appellants may be directed to pay the monthly mesne profits at the rate i.e. Rs.10,300/- w.e.f. 01.07.2019 onwards untill the decision of the first appeal. The order dated 28.05.2019 may be modified accordingly.

In support of arguments, learned counsel for the respondent/s has relied upon the judgments delivered by Hon'ble Supreme Court in the cases of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005) 1 SCC 705 and Pradeep Kumar v. Hajari Lal 2008(1) WLC (SC) 779.

In reply, it has been submitted that the valuation report submitted by the respondents valuing the disputed property by the Registered Valuer of the Income Tax Department on the basis of PWD norms, is not at all sustainable. It is submitted that disputed property is khamghar, late bath and tin shed. The said property governs with the Rajasthan Rent Control Act and not by the PWD norms. Even otherwise, the appellants are paying mesne profits regularly without any fail as per the judgment of the trial Court. Hence, on the basis of valuation report, the respondent/s are not at all entitled to get mesne profits enhanced as being claimed.

Heard and perused the record of the case available on the file carefully. The suit property as per the reply filed by the appellant is khanghar, late bath and tin shed and it is not being used for any commercial purpose. This aspect has not been disputed by learned counsel for the respondent-applicant, but it has been submitted that the adjoining properties are being used for commercial purposes and the suit property is suitable for being used for commercial purposes by the respondents. It has also been submitted by the respondents that two shops of respondents are located having opening towards the main road of Naya Bazar. The suit property can be used for construction of commercial complex by the respondents but the fact remains that the present use of the suit property is not commercial and the construction has been described by the appellant and has not been disputed by the respondents.

In view thereof, no grounds are made out t