1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.7712/2007. (Nasruddin Vs. Addl. District Judge No.2, Bhilwara & Another) March 13, 2009 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS ______________________________________ Mr. Usman Ghani for the petitioner. Heard learned counsel for the petitioner. It is contended by learned counsel for the petitioner that an appeal was preferred by the petitioner against the judgment rendered by Civil Judge (Jr. Dn.) & Judl. Magistrate, (West) Bhilwara dated 02.06.2007, by which, the learned trial Court passed decree for eviction and for payment of rent. In the appeal, an application under Order 41 Rule 5, C.P.C. was filed against the petitioner. Upon the application filed under Order 41, Rule 5, C.P.C., learned trial Court vide its order dated 02.08.2007 while staying operation of the judgment passed order for payment of mesne profits of Rs.2,000/-. Learned counsel for the petitioner is challenging the said order and has prayed that this Court, in the case of Mahaveer Prasad Vs. Saraswati Devi Ojha through LRs, reported in 2008 (3) 2 DNJ (Raj.) 1568, in similar facts and circumstances, exercised jurisdiction under Article 227, Constitution of India in the case. It is submitted by learned counsel for the petitioner that the co-ordinate Bench of this Court has held that the order directing the petitioner to pay a sum of Rs.2,500/-, in that case, per month as mesne profits instead of rent of Rs.325/- per month cannot be sustained and is liable to be set aside. Learned counsel for the petitioner submits that in this case also, upon application filed under Section 6 of the Rent Control Act, rent was enhanced to Rs.543/-, but, instead of directing to make payment of rent, without any adjudication, mesne profits is directed to be paid at the rate of Rs.2,000/- per month. Therefore, the controversy involved in this case is identical to that in Mahaveer Prasad's case (supra). In this view of the matter, this writ petition is disposed of while following the judgment dated 26.08.2008, passed in S.B. Civil Writ Petition No.3186/2008 (reported in 2008 (3) DNJ (Raj.)1568). It is ordered that the impugned order, to the extent of directing the petitioner to pay Rs.2,000/- per month is modified as Rs.543/- per month, being the actual rent 3 determined under Section 6 of the Rent Control Act. In this view of the matter, the appellate Court is directed to decide the appeal itself against the judgment and decree dated 02.06.2007 expeditiously, preferably within three months. It is made clear that the question with regard to payment of mesne profits can be adjudicated upon by the appellate Court while finally deciding the appeal after providing opportunity to both the parties. With aforesaid direction/modification, this writ petition is disposed of. (Gopal Krishan Vyas) J. Ojha, a.