1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3193 OF 2009 WRIT PETITION NO. 3193 OF 2009 WRIT PETITION NO. 3193 OF 2009 WITH WITH WITH WRIT PETITION NO. 3194 OF 2009 WRIT PETITION NO. 3194 OF 2009 WRIT PETITION NO. 3194 OF 2009 WRIT PETITION NO. 3193 OF 2009 Mahanagar Telephone Nigam Ltd. ...Petitioner Vs. Smt. Nirmala H. Mehta & Ors. ...Respondents WRIT PETITION NO. 3194 OF 2009 Mahanagar Telephone Nigam Ltd. ...Petitioner Vs. Smt. Vibha Ketan Dhruv & Ors. ...Respondents Ms. S.I.Shah i/b. S.I.Shah & Co. for petitioner (in both matters). Mr. Lalit V. Jain for respondents (in both matters) CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. DATE: 1st April, 2009. DATE: 1st April, 2009. DATE: 1st April, 2009. 2 P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr. Lalit Jain waives notice for the respondents. 3. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the 4th Joint Civil Judge, S.D., Thane, dated 21st January, 2009 below Exhibit 5 in Special Civil Suit no.284 of 2007. By the said application, the respondent-plaintiff prayed for interim relief during the pendency of the suit for possession. Insofar as the relief claimed regarding injunction against the defendants to refrain from renovating the suit premises without the consent of the plaintiff and from transferring possession to any third party till the decision of the suit, the petitioners/defendants had made statement that they have no intention to engage themselves any of those matters. In the light of the said statement, which ought to have been placed on record by the lower Court, no further direction would be necessary. Assuming that the injunction granted by the trial Court inspite of such statement, is correct, the 3 next question is whether the trial Court was justified in further directing the defendants to pay interim rent at the rate of Rs.70/- per sq. ft. (Rs.44/- towards the use and occupation and Rs.26/- towards service charges) for the period due to the plaintiffs and periodically till the decision of the suit. For granting this relief, the trial Court has taken recourse to Section 8 of the Maharashtra Rent Control Act,1999. That is the sole basis on which the Court has proceeded to answer the point in issue. This approach is manifestly wrong. In that, the lower Court has completely glossed over the fact that the defendants were exempted from the application of Maharashtra Rent Control legislation, in view of express provision in that behalf. In other words, the suit premises were not governed by the provisions of Maharashtra Rent Control Act. If so, the reliance placed by the trial Court on Section 8 of the Maharashtra Rent Control Act is inapposite. As no other reason has been recorded by the Court below to justify the fixation of interim rent - even before the decree for possession is passed, the only option available to this Court is to set aside that part of the impugned judgment and reject the claim of the plaintiffs in that behalf. 4. However, Counsel for the plaintiffs/respondents 4 would contend before this Court that even if the Rent Act provisions are not applicable to the suit premises, under common law, Civil Court has jurisdiction to determine interim rent/compensation in respect of the suit premises which, according to the plaintiffs, are in unauthorised possession of the defendants. However, this aspect cannot be dealt with for the first time before this Court. That contention ought to have been raised before the trial Court. 5. In the interest of justice, therefore, the appropriate course, to my mind, is to set aside the impugned judgment and order to the extent it fixes interim rent in respect of the suit premises and directs the defendants to pay the same to the plaintiffs and instead restore the Application Exhibit 5 to its original number to be proceeded before the trial Court to consider the relief of fixation of interim rent afresh on its own merits in accordance with law. It will be open to the respondents to rely on the decision of the Delhi High Court in the case Motor and General Motor and General Motor and General Finance Ltd. vs. Nirulas reported in 2001 (2) RCR 305 Finance Ltd. vs. Nirulas reported in 2001 (2) RCR 305 Finance Ltd. vs. Nirulas reported in 2001 (2) RCR 305 which has been relied upon by their Counsel appearing before this Court. The trial Court would be free to consider the same or such other contention to be canvassed by both sides on its own merits in accordance 5 with law. All questions in that behalf are left open. 6. The parties shall appear before the trial Court on 13th April,2009 when the trial Court may proceed to reconsider the restored application Exhibit 5 in the light of the observations made in this order. Petition disposed of on the above terms. (A.M.KHANWILKAR,J.) (A.M.KHANWILKAR,J.) (A.M.KHANWILKAR,J.)