1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4134 OF 2009 Mukund Narayan Divekar ...Petitioner vs. Smt.Mrunalini Shrikrishna Joshi & Ors. ...Respondents Mr.V.G.Peshave for the petitioner Mr.S.N.Chandrachud for respondent nos.1 to 3 CORAM :A.S.OKA,J. DATE : SEPTEMBER 16, 2009 P.C. 1 Notice for final disposal was issued on 30 th July 2009. Heard the learned counsel for the petitioner and the learned counsel for the respondents. The respondents are the original plaintiffs. A Decree for possession under the Maharashtra Rent Control Act,1999 has been passed in favour of the respondents which was challenged by the petitioner by preferring an appeal before the District Court. An application for stay of execution of the decree was made by the petitioner. By the impugned order, the learned District Judge granted stay to the execution of the decree till the disposal of the appeal subject to the petitioner paying compensation at the rate of Rs.5,000/- per month on or before 10 th day of every calendar month till the disposal of the appeal. The petitioner was directed to pay the said amount over and above the regular rent. The direction to pay compensation was purportedly issued by the Appellate 2 Court in terms of the decision of the Apex Court in the case of Atma Ram Properties Pvt.Ltd. Vs. M/s.Federal Motors Pvt.Ltd. [2005 (1) RCJ 23 (SC)]. 2 The learned counsel for the petitioner has invited my attention to the impugned order. He submitted that without recording any reason, the Appellate Court jumped to the conclusion that the petitioner will have to pay compensation at the rate of Rs.5000/- per month. He submitted that as no reasons has been assigned for fixing the amount, the impugned order is illegal and deserves to be quashed and set aside. 3 The learned counsel for the respondent supported the impugned Judgment and order. He submitted that considering the fact that the suit premises are located in the prime area of city of Pune and considering the nature of user of the suit premises, the Appellate Court has fixed the reasonable amount of Rs.5000/- per month and no interference be made in writ jurisdiction. 4 I have carefully considered the submissions. In the case of Atma Ram Properties Pvt. Ltd, the Apex Court has examined the powers of the Appellate Court while granting stay under Rule 5 of Order XLI of the Code of Civil Procedure,1908. The Apex Court has held that while granting stay to the decree of eviction under the rent 3 control legislation, the Appellate Court may impose a condition of the tenant depositing a reasonable the amount of compensation from the date of passing the decree of eviction. However, the amount of compensation which can be directed to be deposited as a condition precedent has to be reasonable. To decide as to what is the reasonable amount, the Appellate court is required to consider several factors such as nature and location of the suit premises, user of the suit premises, capacity of the appellate to pay the amount of compensation etc. The amount fixed cannot be punitive. Apart from this, for fixing the compensation amount there has to be some basis. It is true that at the stage of deciding the application for stay, a detailed investigation or a detailed enquiry as regards the market value or the market rate of rent is not contemplated. However, the Appellate Court is expected to consider the relevant factors and come to a conclusion as regards the quantum of reasonable compensation. 5 Perusal of the impugned order and in particular paragraph 7 shows that the Appellate Court has not at all considered any of the relevant factors and has straight- away recorded a finding that the petitioner will have pay compensation on account of mesne profits at the rate of Rs.5000/- per month. Moreover, in the impugned order the Appellate Court has not set out from which date the 4 amount is payable. As held by the Apex Court, the said amount can be made payable from the date of decree of eviction. 6 There is no material placed on record of this petition to enable this court to ascertain and determine as to what should be the reasonable amount. Therefore, though the order granting stay need not be interfered with but the matter will have to be remanded for determining the compensation payable by the petitioner in terms of the decision of the Apex Court in case of Atma Ram Properties Pvt.Ltd.(supra). 7 By ad-interim order passed by this court on 30 th July 2009, the petitioner has been directed to deposit a sum of Rs.1500/- per month over and above the regular rent. That order will continue to operate till the matter is decided afresh. 8 Hence, I pass the following order : i) That part of the impugned order dated 1 st January 2009 by which compensation at the rate of Rs.5000/- is ordered to be paid by the petitioner is quashed and set aside ii)The Appellate Court is directed reconsider the matter and to fix the appropriate reasonable amount 5 of compensation in the light of observations made in this order. iii)The Appellate Court will complete the said exercise and will pass an order on an application at Exh.6 within a period of three months from the date on which an authenticated copy of this order is produced. Till the Appellate Court passes a fresh order on application at Exh.6, ad-interim relief granted in terms of clause (3) by order dated 3 0th July 2009 will continue to operate. iv)Writ petition is partly allowed in above terms. JUDGE