1 WP 1590 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1590 OF 2011 Vinod Sundarrao Vairagar ..Petitioner Vs. Avinash Chandrakant Gaikwad ...Respondent ----- Mr.S.V. Sadavarte for Petitioner Mr. P.B. Gujar for Respondent ----- CORAM: V.M. KANADE J. DATED: 26th April, 2011 P.C. 1. Heard the learned counsel on behalf of the Petitioner and the Respondent. 2. The grievance of the Petitioner is that in the appeal which he had filed against the judgment and decree passed by the Trial Court, the Lower Appellate Court has misconstrued the directions given by the Trial Court and has erroneously directed the Petitioner to pay Rs.3,000/- p.m. towards compensation during pendency of the Appeal. 3. The Petitioner is the original tenant. The Respondent-landlord filed the suit seeking possession of the premises for the of reconstruction of the suit building and the said suit was decreed by the Trial Court 2 WP 1590 of 2011 in the view of the provisions of section 16(6) of the Maharashtra Rent Control Act. In the said judgment and decree, the Trial Court observed that if the landlord could not hand over the reconstructed premises to the tenant within the time prescribed under the agreement then, he shall be liable to pay Rs.3,000/- p.m. to the tenant as compensation. This order was challenged by the landlord in appeal. The appeal is admitted and is pending for final disposal. During the pendency of the appeal, the Lower Appellate Court directed the tenant- Petitioner herein to pay Rs.3,000/- p.m. 4. The learned counsel for the Petitioner submitted that in the present case, there is no decree of eviction on the ground of termination of tenancy and, therefore, the ratio of the judge in Atmaram’s case will not apply to the facts of the present case. Secondly, it was submitted that the Lower Appellate Court had committed an error of law by misconstruing the direction given by the Trial Court. 5. The learned counsel appearing on behalf of the Respondent submitted that during the pendency of the appeal, the Lower Appellate Court had rightly directed the tenant to pay compensation of Rs.3,000/- p.m. as a condition for granting stay to the decree passed by the Trial Court. It was submitted that the hearing of the 3 WP 1590 of 2011 appeal may be expedited and petition may be dismissed. 6. There is much substance in the submissions made by the learned counsel for the Petitioner. In the judgment and order which was passed by the Trial Court dated 19.4.2010 in the operative part of the order in paragraph 2, the Trial Court has observed that if the landlord is not in a position to hand over the permanent reconstructed premises as agreed between the parties in that event, the landlord herein should pay to the tenant Rs.3,000/- p.m. as compensation. The Lower Appellate Court, however, in its order on internal page of this order has observed that the Trial Court had directed the tenant to pay Rs.3,000/- p.m. to the Respondent- landlord from the date of decree till permission of the suit premises is handed over. The Lower Appellate Court, therefore, has clearly committed an error of law which is apparent on the face of record. Since admittedly, no such direction has been given by the Trial Court. In the present case, the suit was filed under section 16(6) of the said Act and, therefore, there was no question of termination of tenancy by the landlord and as a result, the decree which was passed, the tenancy is not termination. The ratio of the judgment in Atmaram’s case , therefore, would not apply to the facts of the present case. Hence, the impugned order will have to be 4 WP 1590 of 2011 set aside. 7. The Petitioner-tenant shall pay the contractual rent of Rs.60/- p.m. during the pendency of the appeal. The hearing of the appeal is expedited. The Lower Appellate Court shall decide the appeal expeditiously and in any case, within a period of one year. Writ petition is disposed of. (V.M. KANADE J.)