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S.B. CIVIL WRIT PETITION NO. 2483/2016

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR.

ORDER

S.B. CIVIL WRIT PETITION NO. 2483/2016

WITH

S.B. CIVIL MISC. STAY APPLICATION NO. 2156/2016

SMT. KAMLA BHARATI & OTHERS

VS.

JANAKI LAL & OTHERS.

DATE OF ORDER : 29.02.2016

HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

Mr. Sanjay Singhal, for the petitioners.

BY THE COURT:

This writ petition has been filed by the plaintiffs-petitioners

assailing order dated 03.02.2016 passed by Additional District and Sessions

Judge No. 1, Beawar, District Ajmer (for short the ‘the appellate court’)

whereby application filed by the defendants-respondents under Order 41

Rule 5 CPC has been allowed and execution of judgment and decree dated

08.12.2015 passed by Additional Civil Judge(SD) No. 1, Beawar, District

Ajmer (for short ‘the trial court’), decreeing the suit filed by the petitioners for

eviction of respondents-defendants, has been stayed.

The petitioners filed a suit for eviction in the year 1980 against

defendants-respondents from the premises on the ground of bonafide

necessity, default in payment of rent, material alteration and nuisance. The

suit filed by the petitioners was decreed by the trial court vide judgment and

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S.B. CIVIL WRIT PETITION NO. 2483/2016

decree dated 08.12.2015 on the ground of bonafide necessity, default in

payment of rent and material alteration. The defendants-respondents filed

an appeal before the appellate court. The defendants-respondents along

with the appeal also filed an application under Order 41 Rule 5 CPC praying

therein that execution of the judgment and decree passed by the trial court

be stayed during pendency of the appeal. The petitioner filed reply to the

aforesaid application stating therein that the defendants-respondents

neither have any prima facie case, nor balance of convenience in their

favour and if the execution of judgment and decree passed by the trial court

is stayed, the petitioners would suffer grave injury and they would not get

the fruits of the decree which was passed after 35 years from the date of

filing the suit. Alternatively it was stated that if the judgment and decree

passed by the trial court is stayed, then they may be compensated

reasonably by awarding mesne profit during pendency of the appeal. It was

further stated that the market value of the suit premises is Rs.

19,68,50,908/- and it can fetch rent @ Rs. 14,76,382/- per month and the

rent/mesne profit which has been ordered to be paid by the trail court, i.e.

Rs. 60/- per month, is nothing looking to the market value of the suit

premises. For assessment of mesne profit, the petitioners also submitted a

valuation report of approved valuer Hemand Jalwaniya, who certified that

the market value of the suit premises is Rs. 19,68,50,908/- and the monthly

rent of the suit premises would be Rs. 14,76,382/- per month. The

respondents-defendants filed valuation report dated 05.01.2016 allegedly

prepared by Manish Kumar Vyas in which he shown the value of the

premises as per DLC rate to be Rs. 16,15,000/-. The appellate court after

hearing counsel for the parties vide order dated 03.02.2016 allowed the

application filed by the defendants-respondents and stayed execution of

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S.B. CIVIL WRIT PETITION NO. 2483/2016

judgment and decree dated 08.12.2015 passed by the trial court with the

stipulation that the defendants-respondents will pay a sum of Rs. 5,000/-

per month as mesne profit to the petitioners during the pendency of the

appeal and the petitioners have been directed to furnish an undertaking to

the effect that if the defendants-respondents succeed in appeal, they will

refund the amount of mesne profit along with interest @ 6% per annum to

the defendants-respondents. Hence, this writ petition has been filed by the

petitioner-plaintiff.

Learned counsel for the petitioners submitted that t