1. IA No. 2865/2018, an application for directing the appellant to pay the due water bills is not pressed; therefore, it is dismissed as not pressed.

2. IA No.958/2018 and IA No.1602/2018 are taken up for consideration. Both these applications are by respondent/plaintiff.

3. Vide IA1602/2018, the respondent/plaintiff seeks vacating of stay order dated 25.4.2005 and for closing right of defence of the appellant for not depositing the rent. That IA No. 958/2018 though titled as for mesne profit at market rate; however, in substance it is an application for rent at current market rate during pendency of the appeal.

4. Appeal as evident is against the judgment and decree dated 23.8.2004 whereby on the grounds under section 12(1)(a), (c), (e) and (o) of the Madhya Pradesh Accommodation Control Act, 1961, the appellant is evicted from the suit premises. That by order dated 25.4.2005 the operation of impugned judgment and decree is stayed subject to depositing the entire arrears of rent and interest within one month and that the appellant shall continue to deposit the monthly on 15th day of each succeeding month with a further direction that noone will be entitled to withdraw the amount which shall be kept deposited after every six months in a nationalized bank. But the order shall not effect right of respondent No.1, if any amount is withdrawn by her till 25.4.2005.

5. The order passed on 25.4.2005 was modified by order dated 30.1.2006 on IA No. 12574/2005; whereby, respondent No.1 was held entitled to withdraw the current rent deposited by the appellant and shall also be entitled to get interest on the amount kept in FDR and to withdraw 50% of the amount kept in FDR.

6. As to the application IA No. 1602/2018 for vacating stay and for closing the defence, it is borne out from the reply filed by the appellant that the order passed on 25.4.2005 has been adhered. And respondent No.1 in furtherance to permission granted by order passed on 30.1.2006 has withdrawn the amount of rent as permitted and is also withdrawing the current rent deposited. There is no denial of these facts adverted at by the appellant.

7. As regard to enhancement and payment of rent at current market rate, it is urged on behalf of the respondent that the suit property is situated in the heart of the city of Shivpuri and the commercial value of the same has enhanced manifold. It is urged that the suit was instituted on 1.8.1996. It is urged that decree for eviction was passed on 23.8.2004. And had the same been not stayed, the respondent/plaintiff would have reaped the benefit therefrom. It is urged that area of suit premises is 3280 sq.ft (85x38ft), and the appellant/defendant is running a school in the premises wherefor meagre amount of Rs. 2,300/- per month is being paid for last over 24 years. It is contended that the petitioner an octogenarian has been deprived of the best of the return from her property for 24 years. In this fact situation, the respondent/plaintiff seeks enhancement in rent to Rs.15,000/- per month.

8. The appellant has countered the claim. It is urged that once a discretion having been exercised under Order 41 rule 5 Code of Civil Procedure, 1908 with a direction to deposit the rent and cost as fixed by the lower Appellate Court, no modification is warranted. It is further contended that though the rent of the premises as agreed has been Rs. 2300/- per month, yet as per determination by the lower appellate Court the defendant is abiding by the interim direction. It is urged that plaintiff being not the owner of the suit property cannot be allowed to have unlawful gain under the garb of enhanced rent.

9. After hearing the learned counsel for the parties and taking note of principles of law laid down in Marshall Sons and Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and another [(1999) 2 SCC 325] and Atma Ram Properties (P) Ltd. v. Dederal Motors (P) Ltd. [(2005) 1 SCC 705], the IA No. 14804/2011 deserves to be allowed.

10. In Marshall Sons