1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 1154 OF 2003 Bhaskar D. Dhepale ...Petitioner Versus Ramesh S. Nagul ...Respondent Mr.Rameshwar Gite for the Petitioner Mr.B.D.Joshi a/w. Gauri Jadhav for the Respondent CORAM:- R.Y.GANOO, J. DATED:- 15th SEPTEMBER, 2011. P.C. 1. The petitioner had filed Special Civil Suit NO.62 of 1994 in the Court of Civil Judge Senior Division, Niphad, District Nashik for recovery of the property, more particularly described in the said suit, against the present respondent in accordance with the provisions of Bombay Rent Act. Learned Civil Judge, Senior Division, decreed the suit by judgment and decree dated 21.10.1997 and directed the respondent to deliver vacant and peaceful possession of the suit 2 property. The petitioner filed Special Darkhast No.3 of 1998 for recovery of possession. Warrant of possession was issued on 5.1.1998. The said warrant of possesion was executed and the property covered by the decree was put in possession of the petitioner on 15.1.1998. Thereafter, in December 1998, the respondent herein filed application at Exhibit 18 calling upon the present petitioner to pay compensation to the respondent, as according to the respondent, the petitioner had caused damage to the property of the respondent. That application was opposed by the petitioner. The Civil Judge, Senior Division entertained the said application and by his judgment dated 6.3.2000, the said application was allowed inasmuch as the petitioner was directed to pay the respondent the sum of Rs.75,000/- by way of compensation. This Order dated 6.3.2000 is challenged in this writ petition. I have heard learned Advocate for the petitioner. On reading of the record it appears that open the plot of land admeasuring 18R was put in possession of the respondent as a tenant. It appears that the respondent constructed certain structure on the suit property. Learned Advocate Mr. Gite appearing on behalf of the petitioner submitted that the application at Exhibit 18 was not maintainable in 3 any case if it was the case of the respondent that the petitioner has caused damage to the property then owned by the respondent, the respondent ought to have filed a separate suit for compensation. Leared Advocate Mr. Gite submitted that the learned Civil Judge, Senior Division, erred in entertaining this application as well as he erred in appreciating the evidence and wrongly came to the conclusion by which he granted compensation of Rs.75,000/- to the respondent. He, therefore, submitted that the impugned order dated 6.3.2000 should be set aside as the said application itself is not maintainable. 2. Learned Advocate Mr.Joshi appearing on behalf of the respondent submitted that according to the respondent the petitioner had caused damage to the property of the respondent and that is how the said application at Exhibit 18 was filed for recovery of damage. Learned Advocate Mr.Joshi supported the order impugned. He submitted that the learned trial Judge had permitted the parties to lead evidence and after considering the entire evidence on record, passed an order in favour of the respondent. He submitted that the said order is properly passed and no interference is required. 4 3. I have considered the submissions. It appears that the respondent after taking 18R of open plot of land constructed some structure. It is also his case that after taking possession, pursuant to the decree dated 21.10.1997 the petitioner demolished the property of the respondent and caused damage. In my view, if the respondent wanted to seek compensation it was necessary for him to adopt appropriate proceedings to get compensation. It was not open for him to file application at Exhibit 18 in a suit which was already disposed of and decree in the said suit has been executed. 4. The course adopted by the learned Civil Judge, Senior Division, in entertaining the said application, giving an opportunity to the parties to lead evidence was patently incorrect. The argument advanced by learned Advocate Mr.Gite has to be accepted. Application at Exhibit 18 was not maintainable and it could not have been entertained by the learned Civil Judge, Senior Division. If this is the observation, then the final judgment dated 6.3.2000 cannot sustain and the same is required to set aside. 5 5. In view of the above, following order is passed to dispose of the petition. ORDER i) Order dated 6.3.2000 passed by learned Civil Judge, Senior Division, Niphad, District Nashik below Exhibit 18 is rejected. ii) It will be open for the respondent to adopt appropriate proceeding for damages caused to him. All points in that behalf are left open. iii) Learned Advocate Mr. Gite submitted that at the stage of admission of this petition certain amount was deposited in this Court, Now, that the petition is dismissed, the said amount along with interest, if any, should be repaid to the petitioner. The submission is fair. Hence registry is directed to pay to the petitioner, amount which was deposited by the petitioner at the stage of admission of the petition. If the said amount has been invested registry to redeem the said Fixed Deposit Receipt and pay to the petitioner the principal amount as well as interest accrued thereon without any security. (R.Y.GANOO, J.)