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 WRIT PETITION NO.2798 OF 2009 Vignesh Global Finance Pvt.Ltd. ..Petitioner. V/s. Abdul Hussein Mustaqali Lakdawala & Ors...Respondents. Mr.J.J.Thakkar for petitioner. Mr.A.S.Khandeparkar for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. DATE : MARCH 16, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.A.S.Khandeparkar waives notice for Respondent No.1. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Order passed by the Appellate Bench of the Small 2 Causes Court dated 17th January, 2009 below Exh. 5 in Appeal No.16 of 2008. For the nature of order that I propose to pass, it is not necessary to advert to all the factual matrix of the case. Suffice it to observe that by the impugned order the Appellate Court, during the pendency of the Appeal, following observations of the Apex Court in the case of M/s.Atma Ram Proprietor (P) Ltd. V/s. M/s. Federal M/s.Atma Ram Proprietor (P) Ltd. V/s. M/s. Federal M/s.Atma Ram Proprietor (P) Ltd. V/s. M/s. Federal Motors Pvt.Ltd. Motors Pvt.Ltd. Motors Pvt.Ltd., has taken the view that the Petitioner/tenant to avail of the interim protection will have to pay sum of Rs.15,000/- per month by way of interim compensation/mesne profit in respect of the suit premises. The claim of the Respondents/landlord was that the interim compensation/mesne profit in relation to the suit premises should not be less than Rs.300/- to Rs.500/- per square feet, having regard to the prime location of the property in Fort area in Mumbai. The Appellate Court without referring to any material to justify its conclusion has proceeded to hold that Rs.15,000/- per month would be a fair market rent in respect of suit property. 6. The grievance of the Petitioner/tenant is that the Court below has not considered the question as to whether the Petitioner/tenant will be in a 3 position to pay the amount of Rs.15,000/- per month and moreso, in absence of any justification given in the order as to why amount of Rs.15,000/- should be treated as fair market rent in respect of the suit premises. 7. Counsel for the landlord on the other hand, submits that in fact, the prevailing fair market rent in respect of suit premises would be nothing short of Rs.300/- to Rs.500/- per square feet. The total area of the suit premises is about 380 sq.ft, which fact is not in dispute. 8. Having considered the rival submissions, I have no hesitation in setting aside the impugned decision on the sole ground that the Appellate Court has not adverted to any material as to on what basis in its opinion sum of Rs.15,000/-per month would be the fair market rent in respect of suit premises. The conclusion reached by the Appellate Court, can be termed as one founded on surmises and conjecture. The Appellate Court instead ought to have referred to some opinion of expert or any other comparable instance produced by the parties. The appropriate course, in my opinion, is to relegate the parties before the Appellate Court by restoring Exh.5 for 4 reconsideration on its own merits afresh in accordance with the law. The Appellate Court shall however, give opportunity to both the sides to produce such material, as they may like to rely to substantiate their respective stand. Only after analysing the material produced by the respective parties, the Appellate Court may be free to decide the issue as to the prevailing market rent in the area where the suit premises are situated and applying the same to the suit premises so as to determine the fair interim monthly compensation/mesne profit payable by the tenant to avail of the interim protection. At the same time, Court will have to investigate into the question whether the tenant will be in a position to pay such amount and will have to limit it to the extent of his ability to pay the interim compensation or mesne profit. 9. During the argument, it was indicated to the Counsel for the Petitioner that if the parties are relegated before the Appellate Court for reconsideration of the remanded application afresh, in that case it may be open to the landlord to contend that the fair market rent of the suit premises would be much more than Rs,15,000/-per month, if that stand is to be supported by 5 contemporaneous record and comparable instances. Counsel for the Petitioner on instructions of the Petitioner who is present in the court has given consent for remanding the matter and reconsideration of all issues afresh. 10. As the parties are relegated before the Appellate Court for reconsideration of application afresh on its own merit, it is made clear that at the end of the enquiry, dependent on the material made available before the Appeal Court, if the Court comes to the conclusion that the fair market rent in respect of premises similar to suit premises in the same locality is much more than Rs,15,000/-per month, the Appellate Court will be free to determine such amount as fair market rent in respect of the suit premises subject however to answering the issue of tenant’s ability to pay such amount or may fix such other amount, which may be appropriate as condition for availing of interim protection during the pendency of the appeal. All questions in that behalf are left open, to be decided on its own merits in accordance with the law. 11. The parties shall appear before the Appellate Court on 6th April, 2009 when the Appeal Court may 6 fix the date of hearing of the application while making it clear that the parties would be free to exchange further evidence and materials, as may be advised, to justify their respective stand. 12. The Appellate Court shall however, finally dispose of the remanded application not later than 4th May, 2009. Needless to observe that the said determination would be subject to the final decision in the appeal and also the remedy of landlord to ask for appropriate mesne profit at the end of the proceedings in the event he succeeds in getting decree in that behalf. 13. Petition disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)