[2026:RJ-JD:8816]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 27/2023 Rajendra Prasad S/o Shri Ramswaroop, Aged About 74 Years, R/o Phuliya Gate, Shahpura, Tehsil Shahpura, District Bhilwara.

(Raj.)

----Appellant Versus Kalyan Mal S/o Shri Mohan Lal Vyas, R/o Phuliya Gate, Shahpura, Tehsil Shahpura, District Bhilwara. (Raj.)

----Respondent For Appellant(s) : Mr. Usman Ghani HON'BLE MS. JUSTICE REKHA BORANA

Order

17/02/2026

1. The present second appeal has been filed aggrieved of judgment & decree dated 29.11.2022 passed by Additional District Judge, Shahpura, District Bhilwara (hereinafter referred to as ‘the Appellate Court’) in Civil Appeal No.16/2016 whereby judgment & decree dated 22.10.2016 passed by Civil Judge, Shahpura, District Bhilwara (hereinafter referred to as ‘the Trial Court’) in Civil Original Suit No.176/2012 (16/2011), stood affirmed.

2. Vide judgment & decree dated 22.10.2016, the learned Trial Court proceeded on to decree the suit of the plaintiff for eviction and arrears of rent. The learned Trial Court directed the defendant to hand over the vacant possession of the premises in question to the plaintiff within a period of 60 days. The mesne profit was determined by the Court @ Rs. 300/- per month.

3. The regular first appeal as filed by the appellant tenant stood dismissed.

4. The learned first Appellate Court while affirming the findings as recorded by learned Trial Court qua all the four issues, granted two months time to the defendant to hand over the possession of the vacant premises. The learned Appellate Court also directed for payment of the arrears of rent @ Rs.300/- per month and further determined the mesne profit @ Rs.1,000/- per month from the date of filing of the appeal till the date the possession is handed over.

5. Counsel for the appellant raised the sole ground before this Court to the effect that the learned first Appellate Court could not have enhanced the rate of mesne profit as the counter claim as filed by the plaintiff stood dismissed. Further, the order passed on application under Order XLI Rule 5, CPC could have remained in effect only till the disposal of the appeal. The interim relief as granted vide the said order could not have continued even after the disposal of the appeal.

6. Counsel submitted that the rate of rent/mesne profit ought to have been fixed @ Rs.300/- per month only and the learned Appellate Court erroneously enhanced the same.

7. Counsel lastly submitted that even the plaintiff had not prayed for enhancement of rate of rent and in absence of any prayer, the relief could not have been granted.

8. Heard the counsel. Perused the record.

9. The prayers as made by the plaintiff in his plaint read as under:

vr% oknh izkFkhZ gS %&

“6-

1& fd izfroknh ls fdjk;k ifjlj nqdku tks oknh ds uksgjs ds ckgj cuh gqbZ gksdj dLck 'kkgiqjk esa Qqfy;kxsV ds ckgj fLFkr gS dks [kkyh djk oknh dks fliqnZ djk;s tkus dh fMØh lkfnj QjekbZ tkosaA

2& fd izfroknh ls 5400@& v{kjs ikWp gtkj pkj lkS :- o tc rd fdjk;k ifjlj nqdku izfroknh ls [kkyh djk oknh dks fliqnZ ugha gks rc rd crkSj gtkZ orZeku fLFkfr ds vuqlkj 1000@& v{kjs ,d gtkj :-

izfrekg ls fnyk;s tkus dh fMØh lkfnj QjekbZ tkosaA

3& fd O;; okni= izfroknh ls oknh dks fnyok;k tkosaA

4& fd vU; flf) tks oknh izkIr djus dk vf/kdkjh gks fnyokbZ tkosaA ”

10. A bare perusal of prayer No.2 reflects that the plaintiff, in clear terms, prayed for mesne profit to be granted @ Rs.1,000/-

per month.

11. So far as the jurisdiction of the Appellate Court in granting the same is concerned, it is a settled position of law that the Appellate Court has the jurisdiction to enhance the rate qua mesne profit if it deems proper in the facts and circumstances of the case. Herein, the suit was filed in the year 2012 which stood decided in the year 2016. The first appeal stood decided in the year 2022. Hence, it cannot be comprehended that a premises which was let out @ Rs.300/- per month would fetch the same rent even after a period of 10 years.

12.