WP. 4421-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 4421 OF 2011 Tulsidas B. Goyal & Anr. ...Petitioners Vs. Sureshchandra S. Agrawal & Ors. ...Respondents *** Mr. Rupesh T. Padwal, for the Petitioners. Mr. R. N. Jawal, for the Respondents. *** CORAM: V. M. KANADE J. DATE : JUNE 20, 2011 P.C. 1. Petitioners are the original tenant. A decree of eviction is passed against them by the trial court. Against the said judgment & decree, he has preferred an appeal before the appellate bench of the Small Causes Court. While granting stay to the judgment and decree of the trial court, the lower appellate court has directed the tenant to pay compensation @ Rs.20,000/- per month, by relying on the following two judgment in the case of - (1) State of Maharashtra & Anr. vs. M/s. Super Max International Pvt. Ltd. & Ors.1. 1 2009(5) ALL M.R. 1001. WP. 4421-11 - 2 - (2) Niyas Ahmed Khan vs. Mahmood Rahmat Ullah Khan & Anr. 1. 2. The learned counsel appearing for the petitioners submits that the burden of establishing the market value of the premises is squarely on the original plaintiffs. Admittedly, no document was produced by the plaintiffs before the appellate bench. It is therefore, submitted that the lower appellate court could not have fixed the said amount of compensation @ Rs.20,000/- per months while taking into consideration the facts which were not brought on record. 3. On the other hand, the learned counsel appearing for the respondents invited my attention to paragraph 6 of the impugned order. He submitted that the lower appellate court has taken into consideration various other circumstances before fixing the rate of compensation. In my view, the lower appellate court could not have fixed the said amount of compensation by merely taking into consideration the facts and circumstances which are not brought on record and by assuming that the said area in which the suit premises are situated, is a most popular commercial area in the city and is very near to the main market. In my view, judicial notice could not have been taken of this fact. The 1 2008(1) RCR, 596. WP. 4421-11 - 3 - impugned order, therefore, will have to be set aside. Accordingly, the Writ Petition is allowed. The impugned order is set aside. The lower appellate court is directed to decide the application for stay afresh after permitting both the parties to file their affidavits to establish the market value of the premises. In the mean time, however, there shall be stay to the judgment and decree of the trial court which shall be subject to the further orders that may be passed in the appeal by the lower appellate court. The lower appellate court shall decide the stay application expeditiously, in any case within a period of six months. 4. At this stage, after the order was dictated, upon a suggestion being made by this Court, both the learned counsel for the petitioners and respondents agreed that this Court may fix a reasonable amount of compensation, pending the appeal. They have accepted the suggestion given by the Court that an amount of Rs.12,000/- per month be paid as compensation, pending the appeal. The petitioner, accordingly, is directed to pay Rs.12,000/- per month from the date of judgment and decree till disposal of the appeal. If an application for fixation of mesne profits is filed by the plaintiff, the trial Court may decide it on merits and in accordance with law and the amount deposited by the tenant during pendency of the appeal shall be adjusted towards the amount payable as WP. 4421-11 - 4 - mesne profits. 5. Liberty is granted to the respondents to file an application for mesne profits. Hearing of the appeal is also expedited. The appellate court shall decide the appeal as expeditiously as possible, preferably within a period of one year. [ V. M. KANADE J.]