1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5204 of 2009 M/s. Amar Builders .....Petitioners v/s. Mr. Champalal I. Sand @ Rahatekar .....Respondents Mr. Sanjay Kshirsagar, Advocate for the petitioners. Mr. S.S.Kanetkar for respondents 1 & 2. CORAM:- A.M.KHANWILKAR, J DATED:- January 06, 2010. P.C. Heard Counsel for the parties. 2. The present Petition is by the landlord praying that the Court below has not fixed the prevailing market rent in respect of the suit premises which it was obliged to do in terms of the exposition of the Apex Court in Atmaram properties v/s. Federal Motors reported in 2005 (3) Bom. CR. 274 and subsequent decision of the Apex Court in the case of State of Maharashtra v/s. Super Max International Pvt. Ltd & anr. Besides, it is argued that no 2 tangible reason is recorded to justify fixation of amount of Rs. 4000/- per month towards compensation in respect of the suit premises. According to the Petitioner, the appropriate amount to be determined towards monthly compensation during the pendency of proceedings before Appellate Court in relation to the suit premises should not be anything less than Rs. 50,000/-. Counsel appearing for the Respondents submits that the impugned order has been passed on the application of stay filed by the Respondents. In that application, the Petitioner-landlord cannot be heard to enhance the amount without giving any material facts and particulars to justify the prayer for enhancement of monthly compensation. There is no difficulty in accepting this submission of the Respondent. 3. The only course open in such a situation is to give liberty to the Petitioner-landlord to file a formal application before the Appellate Court for fixation of interim compensation during the pendency of appeal as per the legal position stated by the Apex Court. If such application is filed by the Petitioner- landlord and the claim is supported by tangible material for fixation of higher monthly compensation in respect of the suit premises, it will be open to the Appellate Court to examine that claim on its own merits in accordance with law. 3 4. It is placed on record that the Respondents have not chosen to assail the correctness of the view taken in the impugned order passed on 16th January, 2009 of fixing the monthly compensation for the present at the rate of Rs. 4000/- per month. 5. The Appellate Court may accordingly consider the proposed application to be filed by the Petitioner-landlord on its own merits in accordance with law. All questions in the said proceedings are left open to be decided on its own merits. 6. Petition disposed of accordingly. (A.M.KHANWILKAR, J)