1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2456 OF 2008 IN WRIT PETITION NO.731 OF 2003 Smt.Jayashri Vasudeo Chavan & Anr. ..Applicants. V/s. Shri Deoji Viraji Dinani ..Respondent. Mr.R.M.Haridas for applicants. Mr.M.M.Sathaye for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. DATE : APRIL 2, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Perused the pleadings filed by the respective parties including valuer’s report relied upon by the parties. As per the latest valuer’s report dated 24th March, 2009 submitted by the Government approved valuer Shri Gunwant Chaudhary appointed by the Court, the fair market rent in respect of the suit premises ought to be around Rs.3,160/- per month. 3. Counsel for the Applicants in all fairness submits that the applicants may not be able to pursue the relief claimed in the application for fixation of 2 monthly interim compensation of Rs.10,240/-. At the same time, it is not the case of the Respondent/Writ Petitioner that he would not be able to pay the amount of Rs.3,160/- per month towards interim compensation. That is not the argument canvassed before this Court. In the circumstances, the only question that remains to be addressed is whether the Applicants are entitled for recovery of interim compensation with effect from the date of the decree dated 16th September, 2000. It is not in dispute that the tenant filed writ petition challenging the said decree, which has been admitted on 21st February, 2006 after hearing both the sides. Unconditional interim relief was granted in favour of the Respondent tenant on that date. The landlord has chosen to file present application only on 25th September, 2008. Indeed, recently I had occasion to take the view that merely because unconditional interim stay is granted, that will not preclude the landlord from applying for fixation of interim compensation/mesne profit during the pendency of the Writ Petition, which is likely to remain pending for hearing in this court for quite some time. The present Writ Petition pertains to year 2003. For which reason judicial notice can be taken of the fact that it may take atleast another 10 years for this 3 Writ Petition to ripe for hearing. In the circumstances, the landlord is justified in applying for fixation of interim compensation/mesne profit during the pendency of this Writ Petition. 4. As aforesaid, the question is whether in the fact situation of the present case, the landlord is entitled for fixation of interim compensation/mesne profit in respect of suit premises with effect from the date of decree, as prayed. In my opinion, in the peculiar facts of the present case, the relief of fixation of interim compensation/mesne profit should operate only from the date of application preferred before this Court on 25th September, 2008 and not with retrospective effect. Counsel for the Applicants/landlord however, submits that the Apex Court in the case of Anderson Wright & Co. V/s. Anderson Wright & Co. V/s. Anderson Wright & Co. V/s. Amar Nath Roy and ors. reported in (2005) 6 SCC 489 Amar Nath Roy and ors. reported in (2005) 6 SCC 489 Amar Nath Roy and ors. reported in (2005) 6 SCC 489 granted relief to the landlord with effect from the date of the decree passed by the High Court and for which reason, even this Court ought to extend similar relief to the Applicants/landlord. 5. I am not impressed with this argument. As aforesaid, when the Writ Petition was admitted and 4 unconditional interim relief was granted, both sides were heard by the Court. At that time no such request was made by the landlord. Since the landlord has approached this Court only in September, 2008 by way of present application, at best, he would be entitled for relief from that date and not from the anterior period. Indeed, fixation of interim compensation/mesne profit is only an interim arrangement. If the landlord was to succeed even before this Court and the decree for eviction to be confirmed and the Court was to order the tenant to vacate the premises; and Court was also to grant relief of mesne profit, the landlord would be compensated with that relief at the appropriate stage. 6. Counsel for the Applicants further submits that assuming that this Court were to grant relief as prayed by the landlord with effect from 25 September, 2008, the landlord be permitted to withdraw the amount only upon giving undertaking without any further condition of furnishing of surety for the amount so withdrawn. According to the landlord, the tenant is already in occupation of the suit premises, which itself is a good surety. In my opinion, however, once again this is a discretionary order to 5 be passed by the Court which is deciding the application for fixation of interim compensation/mesne profit. In all such applications I have consistently directed the landlord to furnish solvent surety to avail of the interim compensation amount. That is the only way of reassuring that in the event, the landlord is directed to reimburse the entire amount recovered by him towards interim compensation can be recovered from the landlord, if the landlord was to be recalcitrant in refunding the amount inspite of the Court’s direction in that behalf. 7. As no other contention has been raised before me, I proceed to pass following order. This Application is allowed on the following terms. (a) Interim compensation/mesne profit in respect of the suit premises is fixed at the rate of Rs.3,160/- per month to be paid by the tenant(writ petitioner) with effect from September, 2008. (b) The tenant shall deposit arrears on 6 that basis within six weeks from today. The tenant shall pay future interim monthly compensation/mesne profit on or before 5th of every English Calender month commencing from May 2009. (c) In case of any one default of the above condition, interim protection given to the tenant shall stand vacated forthwith. (d) The amount deposited by the tenant in this Court in terms of this order is allowed to be withdrawn by the landlord/applicants on condition that the Applicants shall file affidavit of undertaking in this Court stating that the amount recovered by them in terms of this Order shall be reimbursed subject to such order to be passed by this Court or any other Court of competent jurisdiction alongwith interest thereon, as may be directed by the concerned Court. Besides filing such undertaking, the applicants/landlord shall furnish solvent surety to the extent of Rs.4,00,000/-(Rs.Four lakhs only). Furnishing of the undertaking and solvent surety as aforesaid is condition 7 precedent for allowing the landlord to withdraw the amount deposited by the tenant in this Court during the pendency of the writ Petition. It is made clear that if the tenant has already paid contractual rent, would be entitled to adjust that amount while computing the arrears of rent to be paid in terms of this order, to be deposited in this Court. . Ordered accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)