Rajasthan High Court – Jodhpur
Jabir Hussain vs Imran Hussain (2026:Rj-Jd:12194) on 13 March, 2026
[2026:RJ-JD:12194]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 5073/2026
Jabir Hussain, Aged About 64 Years, R/o Bahla Near Bohra
Masjid Bhilwara
----Petitioner
Versus
Imran Hussain, R/o Sanganeri Gate Bohra Colony Bhilwara
----Respondent
For Petitioner(s) : Mr. Narendra Thanvi & Mr. Mahendra
Thanvi
For Respondent(s) : Mr. Ankit Somani
HON'BLE MR. JUSTICE MUKESH RAJPUROHIT
Order
13/03/2026
1. The present writ petition under Article 227 of the
Constitution of India has been preferred by the petitioner
challenging the order dated 08.01.2026 passed by the learned
Appellate Rent Tribunal (District Judge), Bhilwara in Civil Appeal
(Rent) No.15/2025 (Jabir Hussain vs. Imran Hussain), whereby
the application filed by the petitioner under Order XLI Rule 5 of
the Code of Civil Procedure, 1908 (for short “CPC“) has been
allowed, however, subject to the condition that the petitioner
deposits one time amount of ₹1,50,000/- and continues to pay
mesne profits at the rate of three times the monthly rent of
₹12,000/-, i.e. ₹36,000/- per month during pendency of the
appeal.
2. Heard learned counsel for the parties.
3. Learned counsel for the petitioner submits that though the
stay application preferred by the petitioner has been allowed by
the learned Appellate Rent Tribunal, yet the condition imposed
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therein directing the petitioner to deposit ₹1,50,000/- and further
to pay mesne profits at the rate of three times the monthly rent is
wholly arbitrary, harsh and without any supporting material on
record. It is submitted that neither any reply was filed by the
respondent to the stay application nor any material was placed
before the Appellate Rent Tribunal to demonstrate that the
disputed premises could fetch rent equivalent to three times the
admitted rent. It is further contended that the Appellate Tribunal
has imposed the aforesaid condition without assigning cogent
reasons and without examining the relevant factors which are
required to be considered while exercising jurisdiction under Order
XLI Rule 5 CPC.
4. It is also argued that the direction to pay mesne profits at
the rate of three times the monthly rent is based upon Section 20
of the Rajasthan Rent Control Act, 2001 and such provision can be
invoked only after the judgment of the Rent Tribunal attains
finality and execution proceedings are initiated. During the
pendency of the appeal, the Appellate Tribunal could not have
imposed such a condition in absence of any determination
regarding prevailing market rent or any material to justify such
enhancement. Learned counsel submits that the impugned order
practically compels the petitioner to vacate the premises even
before adjudication of the appeal, thereby defeating the statutory
right of appeal.
5. In support of his submissions, learned counsel for the
petitioner has placed reliance upon the decision of a coordinate
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Bench of this Court in Vijay Vyas vs. Abhishek Goyal & Ors.
reported in 2012 CJ (Rent Control) 76.
6. In contrast, learned counsel for the respondent-landlord
supported the impugned order and submitted that once a decree
for eviction has been passed by the Rent Tribunal, the tenant
cannot be permitted to continue in possession without
compensating the landlord appropriately. It is submitted that the
Appellate Tribunal has rightly exercised its discretion while
granting stay of execution subject to payment of mesne profits
and such condition is intended to balance the equities between the
parties.
7. In support of his submissions, learned counsel for the
respondent has relied upon the judgments of the Division Bench of
this Court in Kapil Chandla vs. Appellate Rent Tribunal, Kota
& Ors. reported in 2016(1) WLC 386 and Mustaq Malawat vs.
Jitendra Gidwani reported in 2021(1) RCR (Rent) 265.
8. I have considered the arguments advanced by learned
counsel for the parties and perused the material available on
record.
9. The limited issue which arises for consideration in the
present petition is whether the learned Appellate Rent Tribunal
was justified in directing the petitioner to pay mesne profits at the
rate of three times the admitted rent as a condition for grant of
stay of execution of the eviction decree.
10. It is trite that while exercising powers under Order XLI Rule
5 of C.P.C., the appellate court is required to balance the equities
between the parties and may impose reasonable conditions while
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granting stay of execution. However, such conditions must be
based on objective considerations and supported by reasons.
11. In the case of Vijay Vyas (supra), a Coordinate Bench of
this Court observed as under :-
“11. I am in full agreement with the adjudication made by the
co-ordinate Bench in the case of Parasmal Dhariwal Vs. LRs of
Amardutt Vyas in S.B. Civil Writ Petition No.6548/2008, decided
on 14.09.2009, in which following adjudication has been made by
the co-ordinate Bench of this Court :
“9. As noticed above, Sub-section (10) of Section 19 of the Act
empowers the Appellate Rent Tribunal in its discretion to pass
such interlocutory order, during the pendency of the appeal which
the facts and circumstances of the case require. Indisputably, the
power conferred on the Appellate Rent Tribunal as aforesaid to
grant the interim relief is not circumscribed by any conditions
therefore, it is not precluded from staying the payment of mesne
profit at the enhanced rate of rent in terms of Sub-section (3) of
Section 20 during the pendency of the appeal. But then, the
matter with regard to grant of stay pending appeal has to be
decided by the Appellate Rent Tribunal exercising its discretion
reasonably, judicially and on the basis of settled principles
governing the grant of interim relief.
10. As laid down by the Hon’ble Apex Court in the matter of
“Siliguri Municipality vs. Amalendu Das“, (1984) 2 SCC, 439, the
main purpose of passing an interim order is to evolve a workable
formula or an arrangement to the extent called for by the
demands of situation keeping in mind the pros and cons of the
matter and striking a balance between two conflicting interest.
11. In Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC, 719,
the Hon’ble Supreme Court stated, “The Court while granting or
refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury
which is likely to be caused to the parties, if the injunction is
refused and compare it with that which is likely to be caused to
the other side if the injunction is granted. If on weighing
competing possibilities or probabilities of likelihood of injury and
if the Court considers that pending the suit, the subject matter
should be maintained in status quo, an injunction would be
issued. Thus the Court has to exercise its sound judicial
discretion in granting or refusing the relfief of ad interim
injunction pending the suit”.
12. Adverting to the facts of the present case, it is to be noticed
that the rent which was being paid by the petitioner-tenant had
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already been enhanced prior to filing of the rent application from
Rs.500/- to Rs.1208/-. From the perusal of the order impugned
passed by the Rent appellate Tribunal, it is difficult to discern the
reasons for imposition of such an onerous condition of payment
of mesne profit at enhanced rate of rent upon the tenant while
granting the interim relief staying the dispossession of the tenant
during the pendency of the appeal. Indisputably, the statutory
provision takes care of the interest of the landlord in case the
eviction order passed by the Rent Tribunal is maintained by the
Appellate Rent Tribunal inasmuch as, he would stand adequately
compensated by payment of mesne profit at the enhanced rate of
rent in conformity with the provisions of Sub-section (3) of
Section 20, after expiry of period of three months from the date
the certificate for recovery of possession was initially issued by
the Rent Tribunal. Therefore, there is absolutely no reason as to
why such an onerous condition with regard to the payment of the
mesne profit at the enhanced rate of rent by the tenant to the
landlord should be insisted upon by the Rent Appellate Tribunal
as a matter of course during the pendency of the appeal.”
12. On the basis of the above discussion, it is held that the
Appellate Rent Tribunal can exercise discretion while passing
interlocutory order as per Section 19(10) of the Act of 2001 but
the said discretion must be based upon reasonableness and till
pendency of appeal if the Appellate Rent Tribunal deems fit that
execution of the judgment of the Rent Tribunal deserves to be
stayed, then, no unreasonable condition should be imposed.
Further, order under Section 20(3) of the Act can be passed in
execution proceedings of the order passed by the Rent Tribunal
and not by the Rent Appellate Tribunal, therefore, whatever
provision is provided under Section 20 of the Act are to be
applied during the execution proceedings because the Legislature
has purposely provided Section 20 for execution of the orders
passed by the Rent Tribunal, if the tenant does not vacate the
premises within three months from the date of attaining finality of
the judgment of the Rent Tribunal. Therefore, no appellate Rent
Tribunal can apply sub-section (3) of Section 20 of the Act of
2001 while passing interlocutory order during the pendency of
the appeal.
13. As a result, this writ petition is allowed. The order
impugned dated 09.08.2011 passed by the Rent Appellate
Tribunal is hereby modified to the extent that the petitioner is
directed to pay mesne profits @ Rs.5050/- instead of Rs.15,150/-
as ordered by the Rent Appellate Tribunal till disposal of the
appeal and further the Rent Appellate Tribunal is directed to
decide the appeal expeditiously.”
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12. In Kapil Chandla (supra), owing to two conflicting views
expressed by coordinate Single Benches of this Court, the matter
was referred to a Division Bench. The Division Bench, while
considering the said judgments as well as in Vijay Vyas (supra)
and answering the reference, observed as under :-
“22. We may further make it clear that it is always a discretion of
the Appellate Rent Tribunal to pass interlocutory order, as it
deems fit in the facts & circumstances of the case on hand and we
may not be misconstrued that in every appeal preferred against
the certificate for recovery of possession mesne profit has to be
ordered as a matter of right. It is always open for the Appellate
Rent Tribunal to consider and exercise its equitable discretionary
jurisdiction reasonably, judicially and on the basis of settled
principles governing the grant of interim relief, as already
observed by us, keeping in mind the pros and cons of the matter
and striking a balance between two conflicting interests. Subject
to the order, if any, passed by the Appellate Rent Tribunal in
exercise of its discretion to pass interlocutory order envisages
under section 19(10) of the Act.
23. At the same time, Section 20(3) of the Act, 2001 along with
explanation appended thereto, the Rent Tribunal, while executing
the orders after expiry of the period of 3-6 months from the date
of issuance of certificate for recovery of possession from tenant,
with no discretion left the tenant has to pay mesne profit at the
rate of two times the rent in case of premises let out for
residential purposes and in case of premises let out for
commercial purposes, at the rate of three times the rent, which
the tenant is under an obligation to pay from the date of issue of
certificate for recovery of possession. That further makes it clear
if interlocutory order has been passed by the Appellate Rent
Tribunal, pending appeal, under section 19(10) that overrides the
requirement to be complied with and it has not been
circumscribed by any conditions as provided u/sub-sec.(3) of
Section 20 of the Act before the Rent Tribunal, during pendency
of appeal and the parties have to abide by the interlocutory order
passed by the Appellate Rent Tribunal until disposal of the
appeal.
24. If there is no interim order of the Appellate Rent Tribunal
u/sub-sec. (10) of Section 19 of the Act, mere pendency of appeal
will not come in way for execution of the certificate for recovery
of possession, pending appeal, by the Rent Tribunal under the
procedure provided u/sub-sec.(3) of Section 20 read with the
Explanation appended thereto which has to be mandatorily
complied with for payment of mesne profit, pending appeal, but it
is always be subject to the interlocutory order, if any, being
passed by the Appellate Rent Tribunal u/sub-sec. (10) of Section
19 of the Act.
25. At the same time, in a case where the appeal stands finally
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[2026:RJ-JD:12194] (7 of 9) [CW-5073/2026]before the Rent Tribunal for execution of the certificate for
recovery of possession issued by the Appellate Rent Tribunal
u/sub-sec.11(b) of Section 19 of the Act and the order is put to
execution before the Rent Tribunal, the same be executed as per
the mode and mechanism provided u/sub-sec.(1) of Section 20 of
the Act, 2001 and at the same time, as regards mesne profit is
concerned that has to be paid in terms of sub-section (3) of
Section 20 of the Act, 2001 until the certificate for recovery of
possession is finally executed as per the mechanism provided
under section 20(4) of the Act.
We accordingly answer the questions as follows:-
Ans. 1:- Section 20(3) of the Act, 2001 applies only in execution
of final order or other orders on application of any party before
the Rent Tribunal and Section 19(10) is neither dependent nor
interrelated to Section 20(3) of the Act.
Ans. 2 & 3: From the detailed analysis of the Act, 2001 which has
been taken note of by us, the Appellate Rent Tribunal under
section 19(10) has a discretion to pass such interlocutory order,
during pendency of appeal, which it may deem fit and proper in
the facts & circumstances of the case keeping in view the inter-se
rights of the litigating parties, while exercising equitable
discretionary jurisdiction vested with the Appellate Rent Tribunal
and exercise of discretion under section 19(10) is not restricted/
dependent upon Section 20(3) of the Act and the Explanation
appended thereto is in the form of a clarification for the Rent
Tribunal while executing the orders passed under the Act, 2001
not to put the proceedings in abeyance mere on filing of appeal or
other proceedings, if any, against order of issuance of certificate
for recovery of possession and use of premises or immediate
possession, before the Appellate Rent Tribunal but that is always
subject to interlocutory orders, if any, passed by the Appellate
Rent Tribunal under section 19(10) of the Act, 2001.
26. The questions are answered accordingly.”
13. So far as the reliance placed by learned counsel for the
respondent on the judgment in Mustaq Malawat (supra) is
concerned, the same is distinguishable on facts. In the said case,
the Court was primarily concerned with the liability of the tenant
to pay mesne profits under Section 20(3) of the Act of 2001 in the
course of execution proceedings after issuance of the certificate
for recovery of possession. The controversy involved in the
present case relates to the exercise of discretionary jurisdiction by
the Appellate Rent Tribunal while considering an application for
stay of execution during pendency of the appeal. Therefore, the
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ratio of the aforesaid judgment does not directly govern the issue
involved herein.
14. In the present case, it is an admitted position that the
monthly rent of the disputed premises is ₹12,000/-. A perusal of
the impugned order reveals that the Appellate Rent Tribunal has
directed the petitioner to pay mesne profits at the rate of three
times the admitted rent without there being any material on
record regarding the prevailing market rent of the premises in
question. The order does not indicate any consideration of
relevant factors such as location of the premises, prevailing rent in
the locality or any other material justifying fixation of mesne
profits at such enhanced rate.
15. In absence of any supporting material, fixation of mesne
profits at the rate of ₹36,000/- per month appears to be excessive
and arbitrary. At the same time, it cannot be lost sight of that the
respondent-landlord has already obtained an eviction order from
the Rent Tribunal and during pendency of the appeal the petitioner
continues to remain in possession of the premises. Therefore,
some reasonable condition ensuring payment of occupation
charges is required to be imposed so as to balance the equities
between the parties.
16. In the considered opinion of this Court, directing the
petitioner to continue to pay occupation charges equivalent to the
admitted monthly rent would adequately safeguard the interest of
the respondent during pendency of the appeal. So far as one time
amount of Rs. 1,50,000/- is concerned, as per the order of the
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appellate rent tribunal, the same has already been deposited by
the petitioner.
17. Accordingly, the writ petition is allowed in part. The order
dated 08.01.2026 passed by the Appellate Rent Tribunal is
modified to the extent that the petitioner shall pay mesne profits/
occupation charges at the rate of ₹12,000/- per month during
pendency of the appeal.
18. The other directions contained in the impugned order
requiring the petitioner to deposit one time amount of ₹1,50,000/-
shall remain unchanged and the petitioner shall also continue to
pay the aforesaid monthly amount of ₹12,000/- regularly within
the time stipulated by the Appellate Rent Tribunal.
19. The Appellate Rent Tribunal is expected to decide the appeal
expeditiously, in accordance with law.
20. Stay petition as well as all pending application(s), if any,
shall also stand disposed of accordingly.
(MUKESH RAJPUROHIT),J
183-Inder/-
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