1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PEITITON NO.1444 of 2009 Jaywant Vinayakrao Patil ..vs.. Arun Dattatraya Ranade and ors. =-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=--=-=-==-=-=-=-=-=-=-==-=-=-=-=-= Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr.J.J.Chandurkar Adv. for the petitioners. CORAM : B.P. DHARMADHIKARI, J. DATED : SEPTEMBER 24, 2010. This court had issued notice for final disposal on 22nd April, 2009. The matter was heard earlier on 17/9/2010 by this court and as nobody appeared for respondent, the matter was required to be adjourned today. There is no appearance for respondents. The challenge is to the order dated 7/8/2008 passed in Reg.Civil Appeal No.100 of 2008 filed by the respondents challenging judgment and decree of eviction passed by Small Cause Court in Small Cause Suit No.32 of 2003 on 25/3/2008. The court of Ad hoc District Judge – I, Amravati has granted stay to its execution subject to respondent/tenant depositing the amount of Rs.375/- per month as a occupation charges. Advocate Chandurkar contends that the amount of Rs.375/- was worked out while passing an 2 order upon an application under Order 15-A of C.P.C. during pendency of Small Cause Suit. He has invited attention to consideration of evidence in this respect on the basis of which Small Cause Court has granted damages for the period from 1/5/2002 to 5/3/2003. He has pointed out that the witness for the tenant himself accepted that rent fetched then could have been Rs.2/- per square foot and for suit premises it could have been Rs.5000/- per month. The small cause court has even independently considered the rent since 1968 and arrived at figure of Rs.4255/- per month. Accordingly, for 309 days of wrongful occupation, damages of Rs.51294/- are sanctioned. Advocate Chandurkar states that this fact is lost sight of the appellate court. The appellate court has considered these figures but then has accepted figure of Rs.375/- per month. There is no justification given for not accepting figure of Rs.4255/- and Rs.5000/- per month or then why rent and occupation charges ought to have been Rs.375/- per month during pendency of the appeal. When after Order 15-A application parties adduced evidence and there is a finding on the basis of evidence on record, the appellate court ought to have recorded some reasons for discarding it. The appeal as filed is of the year 2008 and in these situation I find that the interest of justice can be met with by permitting respondent/tenant to deposit the rent during pendency of appeal at the rate of Rs.2100/- 3 per month i.e. Rs.50%, roughly of Rs.4255/- per month, arrived at by Small Cause Court. The impugned order dated 7/8/2008 is modified only to that extent. The writ petition is thus allowed. Rule is made absolute accordingly. No costs. JUDGE chute