1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Writ Petition No.5198 of 2010 [M/s. Vora Automotives Pvt. Ltd. v. Samrat L. Thakrar (HUF)] Office Notes, Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's order Shri S.V. Bhutada, Advocate for Petitioner. Shri M.R. Joharapurkar, Advocate for Respondent. Coram : R.K. Deshpande, J. Dated : 30 th March, 2011 1. This petition is preferred by the tenant challenging the judgment and decree passed by the learned Additional Judge, Small Cause Court, Nagpur, on 11-9-2008 in Regular Civil Suit No.486 of 2001, which is modified in Regular Civil Appeal No.618 of 2008 filed by the petitioner-tenant, by the learned District Judge-4, Nagpur, by his judgment and order dated 17-7-2010. 2. The operative order passed by the Trial Court decreeing the suit is reproduced below : 2 “1. Suit is partly decreed with costs. 2. Defendant is directed to hand over peaceful and vacant possession of suit premises within one month from the date of order to the plaintiff. 3. The claim of the plaintiff for damages of Rs.23,000/- is rejected. 4. Inquiry be held in respect of Mesne Profit under Order 20 Rule 12 of C.P.C. from the date of the filing of the suit till its recovery. 5. Claim of the plaintiff for possession of encroached portion of 250-300 Sq.ft. area is rejected. 6. Decree be drawn up accordingly.” 3. In appeal, the aforesaid order of the Trial Court has been modified and the operative order passed by the Appellate Court is reproduced below : 3 “(i) Regular Civil Appeal No.618 of 2008 is hereby dismissed. (ii) Regular Civil Appeal No.598 of 2008 is hereby allowed. (iii) Decree passed in RCS No.486 of 2001 by Additional Judge, Small Causes Court, Nagpur on 11.09.2008 in respect of rejection of prayer of the claim of the plaintiff for damages of Rs.23,000/- and for possession of encroached portion of 250 – 300 Sq.Ft. is hereby set aside. (iv) The said suit, i.e. RCS No.486 of 2001 is hereby fully decreed. (v) The decree passed in RCS No.486 of 2001 is modified as follows : “(3) Defendant should pay amount of Rs.23,000/- (Twenty Three Thousand only) to the 4 plaintiff towards damages from 01.11.2001 till date of suit.” “(5) Defendant should hand over area admeasuring 250 – 300 Sq.Ft. adjacent to tenanted premises with stair case and the room on the mezzanine floor admeasuring 150 Sq.Ft. to plaintiff within two months.” (vi) Rest of the decree remains as it is. (vii) Under the circumstances, parties to bear their own costs of this proceeding. (viii) Decree be drawn accordingly. (ix) Original Judgment be kept in RCA No.598 of 2008 and copy of Judgment be kept in RCA No.618 of 2008.” 5 4. In respect of a decree for mesne profits as has been passed by the Court of Small Causes and confirmed in appeal, Shri Joharapurkar, the learned counsel appearing for the respondent-landlord, has filed a pursis dated 14-3-2011, stating in para 4 thereof that the petitioner-tenant abandons the claim in respect of enquiry of mesne profits under Order 20, Rule 12 of the Civil Procedure Code from the date of filing of the suit till the date of passing of the decree by the Additional Judge, Small Cause Court, Nagpur. Hence, the said part of decree shall operate from the date of the decree passed by the Court of Small Causes. 5. This Court has, in its order dated 23-11-2010, recorded the statement of the learned counsel appearing for the petitioner-tenant as under : “Advocate Shri Bhutada states that petitioner is not in possession of any area in excess of 1000 sq.ft. He further invites attention to provisions of Sec.33(1)(c) to urge that words “any premises” used therein need to be construed in the light of provisions of Sec.7 sub-section (9) of the Maharashtra Rent Control Act, 6 1999.” The effect of the statement of the learned counsel for the petitioner-tenant recorded by this Court on 23-11-2010 is that the petitioner-tenant is not in possession of any area in excess of 1000 sq.ft. It is not in dispute that the tenancy was only in respect of 1000 sq.ft. area. In view of this, even if the decree passed by the Appellate Court for handing over the area admeasuring 250 – 300 sq.ft. adjacent to the tenanted premises with stair case and the room on the mezzanine floor admeasuring 150 sq.ft. to the respondent-landlord is executed, the petitioner- tenant cannot have any objection. 6. Coming to the merits of the finding recorded by the Courts below holding that the respondent-landlord has established bona fide requirement, the contention of Shri Bhutada, the learned counsel for the petitioner-tenant, is that the respondent-landlord wants to start the business of Dal Mill, which business he had already closed down. He submits that the respondent-landlord has admitted that he was suffering from the disease arising out of the dust particles of Dal. 7 He further submits that the respondent-landlord has suppressed the material fact that he is carrying on the business of LIC Agent, and both these aspects have been ignored by the Courts below. According to him, both these aspects shall have material bearing on the bona fide requirement of the respondent-landlord. 7. The Courts below have already recorded a finding that the respondent-landlord has established bona fide requirement. The grounds, as are urged by the learned counsel for the petitioner-tenant, are not relevant for the reason that it is for the respondent-landlord himself to decide as to which business he shall carry on in the suit premises and whether it suits to his health. Even if the respondent-landlord is carrying on the business of LIC Agent, that does not mean that he should not carry on the business of Dal Mill. The findings of fact recorded cannot be interfered with on these grounds. 8. The learned counsel for the petitioner-tenant submits that the claim for mesne profits, as ordered by the Trial Court, could only be after the date of the decree passed by the Trial Court, as 8 the decree passed by the Trial Court is modified by the Appellate Court. Hence, according to him, the mesne profits would be payable at the most from the date of passing of the judgment and decree by the Appellate Court. In view of the fact that the Trial Court has already passed a decree for possession, the same shall operate from the date of passing of its decree. Merely because the Appellate Court has confirmed it, there is no reason to make it operational from the date of decree modified by the Appellate Court. The contention cannot, therefore, be accepted. 9. The learned counsel for the petitioner-tenant further submits that the Appellate Court has granted an amount of Rs.23,000/- towards mesne profits for compensation. However, according to him, it was in fact a decree for mesne profits. The contention cannot be accepted for the reason that the Appellate Court has recorded a finding that it is by way of compensation for wrongful occupation of the premises. The Appellate Court has, after taking into consideration the facts and circumstances, passed the decree for an amount of Rs.23,000/- at the rate of Rs.1,000/- per day. It is not a decree for mesne profits. Hence, no interference is called for in the decree passed by the Appellate 9 Court. 10. In view of this, the petition has no merit and the same is, therefore, dismissed. 11. The learned counsel for the petitioner-tenant prays that the interim order passed by this Court be continued for a further period of four weeks so as to enable the petitioner-tenant to adopt all such remedies as are available in law. However, in the facts and circumstances of the case, the said prayer cannot be accepted, and the same is rejected. Judge pdl