1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No. 10171/2008 {M/s. Chawda Gas Repairs & Suppliers Versus Mohammad Umar} Date of Order :: 18th September, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Bharat Yadav for the petitioner BY THE COURT: Heard learned counsel for the petitioner. 2. The plaintiff-respondent filed a suit for eviction in the trial court which was decreed. Being aggrieved with the same, the tenant-defendant filed an appeal before the District Judge, Tonk alongwith an application for stay under order 41 Rule 5 CPC. The first appellate court vie its order dated 18th August, 2008 stayed the operation of the order passed by the trial court subject to the condition that defendant will pay the mesne profit @ Rs.2000/- per month during the pendency of the appeal. Being aggrieved with the same, the defendant has preferred this writ petition. 3. Learned counsel for the petitioner 2 contended that the first appellate court has committed an illegality in enhancing the amount of monthly mesne profit from Rs. 225/- to Rs. 2000/- which is excessive and the same may be reduced to Rs.1000/-. 4. I have considered the submissions of leaned counsel for the petitioner in the light of reasons assigned by the trial court for passing the impugned order. The first appellate court has observed that the rented premise was let out to defendant-petitioner @ Rs. 225/- per month in the year 1991 and at present the rental value of adjacent shops to the petitioner is much higher than the agreed rent. The landlord contended before the first appellate court that mesne profit may be fixed @ Rs. 5000/- p.m., which according to him is the present market rental value of the shop. However, the first appellate court determined the mesne profit @ Rs. 2000/- per month only during the pendency of the appeal. The first appellate court has referred the judgment of Hon'ble Supreme Court in the case of M/s. Atma Ram Versus M/s. Federal Motors {2005 (1) RCJ SC page 23} and Anderson Wrights and Company Versus Amarnath {2005 (2) DNJ (Raj.) SC page 526} and other judgments of this Court wherein 3 the Hon'ble Supreme Court while interpreting the order 41 Rule 5 CPC held that mesne profit can be increased than agreed rent and reasonable condition can be put on appellant while granting stay against the eviction decree. 5. The judgment passed by the first appellate court appears to be perfectly justified as the same is based on judgment of the Hon'ble Supreme Court in the cases referred above. I do not find any illegality, perversity or jurisdictional error in the impugned order so as to interfere with the same under Article 227 of the Constitution. 6. The Hon'ble Supreme Court in Babhutmal Raichand Oswal Versus Laxmibai R. Tarte and another {AIR 1975 Supreme Court 1297} held that the High Court cannot in guise of exercising its jurisdiction under Article 227 convert itself into a court of appeal when the legislature has not conferred a right of appeal and made the decision of the subordinate court or tribunal final on facts. The High Court cannot, while exercising jurisdiction under Article 227, interfere with findings of fact recorded by the subordinate court or tribunal. It's function is limited to seeing that the 4 subordinate court or tribunal functions within the limits of its authority. It cannot correct mere errors of fact by examining the evidence and re-appreciating it. 7. The Hon'ble Supreme Court in Mohd. Yunus Versus Mohd. Mustaqim {AIR 1984 Supreme Court 38} held that in exercising the supervisory power under Article 227, the High Court does not act as an appellate court or Tribunal. 8. In view of above, there is no merit in this writ petition and the same is, accordingly, dismissed in limine. (NARENDRA KUMAR JAIN),J. DK 5 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Misc. Stay Application No. 1989/2008 In S.B. Civil Writ Petition No. 10171/2008 {M/s. Chawda Gas Repairs & Suppliers Versus Mohammad Umar} Date of Order :: 18th September, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Bharat Yadav for the petitioner BY THE COURT: Consequent upon the dismissal of writ petition, the stay application, filed therewith, does not survive and the same also stands disposed of. (NARENDRA KUMAR JAIN),J. DK