Case Note & Summary
The dispute arose out of a suit for eviction and recovery of mesne profits filed by the landlord against the tenant in respect of premises. The tenant contested the suit denying the landlord's title. The trial court decreed the suit on 11.03.2024, directing eviction and payment of mesne profits at Rs.1,00,000 per month. Aggrieved, the tenant preferred an appeal before the Additional District Judge, Abu Road, along with an application under Order XLI Rule 5 CPC for stay. The appellate court passed an order on 31.05.2024 staying execution of the eviction decree subject to conditions, including payment of outstanding amount of Rs.13,125/-, rent at Rs.375 per month from date of suit till filing of appeal, and mesne profits at Rs.1,00,000 per month from filing of appeal till disposal. Both landlord and tenant filed writ petitions against this order. The writ petitions raised primarily two issues: whether the appellate court was justified in granting stay of execution, and whether the condition requiring payment of mesne profits at Rs.1,00,000 per month was reasonable and based on proper assessment. The tenant also challenged the taking on record of additional documents without Order XLI Rule 27 CPC application. The tenant contended that the mesne profits amount was excessive and onerous, bearing no reasonable relation to admitted contractual rent of Rs.375 per month, and that documents were relied upon without opportunity to rebut. The landlord contended that the stay itself was unwarranted and the conditions did not adequately protect the decree-holder's interest. The High Court held that the appellate court had discretion under Order XLI Rule 5 CPC to stay execution pending appeal, and the grant of stay was not legally infirm; the landlord's challenge to stay was rejected. However, on the quantum of mesne profits, the court distinguished between contractual rent and mesne profits, observing that mesne profits need not be confined to contractual rent but must be based on objective assessment of the premises' nature, location, rental potential, and other characteristics. The court noted that the admitted contractual rent was Rs.375 per month since 2010, and while escalation over time is relevant, there had been no proper assessment or fact-finding exercise to justify Rs.1,00,000 per month. The court referred to the Supreme Court decision in Martin & Harris Pvt. Ltd. recognizing appellate court's power to impose reasonable conditions. The final operative directions were not included in the available text, but the reasoning suggests that the stay was upheld while the mesne profits condition was to be re-examined.
Headnote
A) Civil Procedure - Stay of Execution - Order XLI Rule 5 Code of Civil Procedure, 1908 - Appellate court has discretionary power to stay execution of eviction decree during pendency of appeal, subject to reasonable conditions, balancing tenant's right to appeal and landlord's right to fruits of decree - The High Court held that the appellate court's discretion in staying execution was properly exercised and not legally infirm; the landlord's challenge to the grant of stay was rejected - Held that stay of eviction decree pending appeal was justified (Paras 4.4-4.7). B) Civil Procedure - Mesne Profits - Distinction from Contractual Rent - Order XLI Rule 5 Code of Civil Procedure, 1908 - Mesne profits are distinct from contractual rent; they may exceed contractual rent but must be based on objective assessment of premises' nature, location, condition, commercial utility, and potential rental value, not arbitrary or solely from neighboring premises or business income - The High Court observed that the admitted contractual rent was Rs.375 per month in 2010, and while escalation over time is relevant, there was no proper assessment or fact-finding exercise to support fixing mesne profits at Rs.1,00,000 per month - Held that quantum of mesne profits required reconsideration on proper evidence (Paras 5-5.6). C) Civil Procedure - Additional Documents in Appeal - Order XLI Rule 27 Code of Civil Procedure, 1908 - Additional documents taken on record without formal application and without opportunity to other party to rebut may vitiate the order if relied upon - The tenant contended that additional documents were taken on record on 02.05.2024 without Order XLI Rule 27 CPC application, and the impugned order relied on them for fixing mesne profits; the High Court noted this grievance but did not finally resolve it in the available excerpt - Held that the issue remained to be addressed (Paras 2.2-2.4, 5.6).
Issue of Consideration
Whether grant of stay of eviction decree under Order XLI Rule 5 CPC was justified; whether condition of paying mesne profits at Rs.1,00,000 per month was reasonable and based on proper assessment; whether additional documents could be taken on record without Order XLI Rule 27 CPC application
Law Points
- mesne profits differ from contractual rent
- appellate court may impose conditions while staying eviction decree
- mesne profits must be based on assessment of premises characteristics
- additional documents in appeal require Order XLI Rule 27 CPC compliance
