1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER Makhhan Lal Vs. Gokul Chand Agarwal & Ors. (S.B. Civil Writ Petition No.6016/2010) Date of Order :- April 28, 2010 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Bharat Saini, for the petitioner. Aggrieved by the order dated 11.03.2010, passed by the Civil Judge (S.D.) & Additional Chief Judicial Magistrate, Kotputali, whereby the learned Magistrate has dismissed the application filed by the petitioner for deleting the issues Nos.1 & 5 framed by the trial court, the petitioner has approached this Court. The issue Nos.1 & 5 are as under :- (1) आया ूितवादȣ के वाद पऽ का चंरण संÉया-1 मे वǔण[त Ǒकरायाशुदा पǐरसर का Ǒकराया Ǒदनांक 01.04.2004 को अदा नहȣं कर Ǒकराया अदायगी मɅ åयितबम कर Ǒदया है? (5) आया ǒववाǑदत दकान के आसपास कȧ दकानात का Ǒकराया ढाई ु ु हजार से पांच हजार ǽपये होने के आधार पर वादȣगण ूितवादȣ से दो हजार ǽपये ूितमाह मÚयवतȸ लाभ ूाƯ करने का अिधकारȣ है? According to the learned counsel for the petitioner, the said issues could not have been framed as the case was under the Transfer of Property Act. Moreover, since the respondents had not claimed a mesne profit of Rs.2,000/- to Rs.2,500/-, the issue No.5 could not have been framed in the manner it has been framed. Without appreciating the plaint and the written statement, the issue No.5 has been framed. 2 The respondent Nos.1 & 2 filed a suit for recovery of rent and eviction from the property under the Transfer of Property Act, 1882. It was the case of the plaintiffs that they had given a shop on rent @ Rs.450/- per month to the petitioner on 01.01.1997 for a period of eleven months. Subsequently, on 01.01.2002, the rent was increased to Rs.500/- per month. The plaintiff further claims that the petitioner did not pay rent from 01.09.2004. Hence, he become a defaulter. Thus, the plaintiff prayed for recovery of the due rent along with interest, possession of the shop and for a payment of Rs.1,500/- as mesne profit from 04.12.2008 till handing over of the physical possession of the shop. The learned trial court framed issues Nos.1 & 5 as mentioned above. Obviously, both the issues are relevant for just decision of the case. Issue of mesne profit is relevant as the petitioner continues to enjoy the possession of the property. The learned counsel for the petitioner is not justified in claiming that the learned trial court has erred in framing the issue whether the plaintiff is entitled to mesne profit of Rs.2,000/- per month or not ? Firstly, in the plaint, the plaintiff himself had stated that due to increase in rental value of the properties around the area, the market rate was between Rs.2,000/- to 2,500/- per month. Secondly, merely because the amount has been mentioned in the issue, it does not mean that a lesser amount would not be decreed at the end of the trial. Therefore, even if the plaintiff had asked for a mesne profit of Rs.1,500/- per month, and yet the 3 issue is about payment of mesne profit of Rs.2,000/- per month, it would hardly make a difference. For, the mute question is whether the plaintiff is entitled to a mesne profit from the defendant or not ? Therefore, in the opinion of this Court, the impugned order does not suffer from any perversity, or any legality. Since this petition is devoid of any merit, it is hereby dismissed. (R.S.CHAUHAN)J. Manoj Solanki-