FA/5366/2008 1/3 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No. 5366 of 2008 With CIVIL APPLICATION No. 13372 of 2008 In FIRST APPEAL No. 5366 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the Civil Judge? ========================================================= FULAJI VARVAJI VIHOL - Appellant(s) Versus ZALAWADI SAISUTHAR VIDYARTHI BHAVAN SAMITI & 10 - Defendant(s) ========================================================= Appearance : MR DILIP B RANA for Appellant(s) : 1, MR JAYESH A KOTECHA for Defendant(s) : 1 - 2. None for Defendant(s) : 3 - 11. ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 02/12/2008 ORAL JUDGMENT 1. Present First Appeal is preferred by the appellant herein – original defendant challenging the judgment and decree dated 29.08.2008 passed by the FA/5366/2008 2/3 JUDGMENT learned Judge, City Civil Court No.10, Ahmedabad in Civil Suit No.1665 of 2002 by which the learned Judge has decreed the said suit directing the appellant – original defendant to hand over peaceful possession of the disputed property. By impugned judgment and decree the learned Judge has also directed the appellant – original defendant to pay mesne profit of the suit premises at the rate of Rs.1500/- per month which comes to Rs.37,500/-. 2. Mr.Rana, learned Advocate for the appellant has submitted that during the pendecy of the appeal, disputed suit premises is already handed over by the appellant. He has requested to consider impugned judgment and decree passed by the learned trial Court with respect to mesne profits only. It is submitted that in the facts and circumstances of the case, mesne profit which is awarded at the rate of Rs.1500/- per month be reduced considering the position of the appellant who was serving as Watchman. It is submitted by him that so far as the decree with respect to possession is concerned, he does not press present Appeal and requested to consider the impugned order with respect to mesne profits. Mr.Kotecha, learned Advocate for the respondents herein – original plaintiffs has left it to the Court with respect to mesne profits. In the facts and circumstances of the case and looking to the position of the appellant who was serving as Watchman, it appears to the Court that if mesne profits is awarded at Rs.750/- per month it would FA/5366/2008 3/3 JUDGMENT meet the ends of justice and the learned Advocates are agreeable to consider mesne profits at Rs.750/- per month. At this stage, Mr.Rana, learned Advocate for the appellant has requested to grant 4(four) weeks time to make payment of mesne profits as per above. 3. Considering above and for the reasons stated above, the appeal succeeds in part. The order dated 29.08.2008 passed by the learned Judge of the City Civil Court, Ahmedabad in Civil Suit No.1665 of 2002 with respect to possession of the suit premises is hereby confirmed and First Appeal to that extent is dismissed as not pressed. Impugned judgment and decree dated 29.08.2008 passed by the learned Judge, City Civil Court No.10, Ahmedabad in Civil Suit No.1665 of 2002 with respect to awarding mesne profits at Rs.1500/- per month is modified to the extent that the defendant would be entitled to mesne profits at rate of Rs.750/- per month and they are entitled to recover Rs.18750/- in all. As requested by the learned Advocate for the appellant, the appellant is directed to pay mesne profits at the rate of Rs.750/- which comes to Rs.18750/- in all on or before 02.01.2009. First Appeal is accordingly allowed to the aforesaid extent. In view of disposal of First Appeal, no further order in Civil Application. [M.R.Shah,J.] satish