IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3106 OF 2009 Smt.Arvinda Hasmukhray Shukla, (Since deceased) through her heirs & legal representatives: 1.Deven Hasmukhray Shukla & Ors. ...Petitioners V/s. Smt.Kanchanben Maheshbhai Shah ...Respondent ...... Mr.Rohit Kapadia, Sr.Counsel with Mr.Vijay Thorat, Sr.Counsel & Mr.Atit Shukla i/b Mr.Pravesh Sachdev for Petitioners. Mr.J.J.Thakkar for Respondent. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. MARCH 26, 2009. MARCH 26, 2009. MARCH 26, 2009. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Thakkar waives notice for Respondent. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. 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 Causes Court, Mumbai, Bandra Bench, below Exhibit No.6 in Appeal No.148 of 2008. The impugned order considers the request of Petitioner/landlord of fixation of interim maintenance/mesne profit in respect of the suit premises to be paid by the Respondent/tenant during the pendency of Appeal which has been admitted and pending in that Court. The Court below has accepted the request of the Petitioner by fixing the interim compensation at the rate of Rs.2,000/- (Rupees Two Thousand) per month to be paid by the tenant from the date of decree. 5. The grievance of the Petitioner before this Court is that the Appellate Court has not analysed the material pressed into service by the Petitioner which clearly establishes the stand taken by the Petitioner that the fair market value of the suit premises would be around Rs.16,00,000/- : 3 : (Rupees Sixteen Lakhs). That stand is supported by the valuation given in the Ready Recknor of 2008 which is an official document. No material has been produced by the Respondent/tenant to counter that position. 6. In other words, there is no comparable instance pressed into service by the Respondent/tenant to indicate that the valuation of the suit property would be much less than the amount mentioned in the Ready Reckoner as aforesaid. As observed by this Court in the recent decision dated 3rd March 2009 in the case of Super Super Super Max International Pvt.Ltd. & Ors. vs. Max International Pvt.Ltd. & Ors. vs. Max International Pvt.Ltd. & Ors. vs. M/s.R.M.Choksey & Co., M/s.R.M.Choksey & Co., M/s.R.M.Choksey & Co., it will be safe to assume that the Petitioner/landlord would be entitled to at least 8% returns on the value of the property in lieu of fair market rent and/or interim compensation. This aspect has been glossed over by the Appellate Bench of the Small Causes Court. 7. Indeed, the valuation of the property cannot be the sole basis to fix the interim compensation/mesne profits payable in respect of : 4 : the suit premises. The Court has to also consider whether the tenant would be able to pay such amount. In the present case, the Respondent is the tenant who is residing in the suit premises along with her husband. In such a situation, besides the income of the Respondent, the Court will also have to consider the income of the Respondent’s husband and/or any other adult family member staying along with the Respondent in the suit premises having independent source of income. Income of all these persons will have to be reckoned for considering the question of ability to pay the amount towards interim compensation/mesne profits to be determined by the Court. Admittedly, the Respondent had not produced any material to indicate or disclose the income of Respondent’s husband or any other adult family member staying in the suit premises. That is a matter which ought to have been disclosed before the Appellate Court which considered the Application for determination of interim compensation. 8. The appropriate course, to my mind, therefore, is to set-aside the impugned Judgment : 5 : and Order in its entirety although the Petitioner has succeeded before the lower Court to the extent of fixation of interim compensation in the sum of Rs.2,000/- (Rupees Two Thousand) per month. Instead, the appropriate course is to consider the Application afresh on its own merits in accordance with law keeping in mind the observations made in the earlier part of this decision. All questions in respect of fixation of interim compensation and/or interim mesne profits are left open to be decided in accordance with law. 9. The parties shall appear before the Appellate Bench of the Small Causes Court on 6th April 2009, on which date, the Appellate Court may give time to both sides to exchange their respective affidavits and such other material as they would like to rely in support of their respective stand. The lower Court shall, however, endeavour to dispose of the restored Application not later than 8th May 2009. In the event, the Appellate Bench is of the view that instead of proceeding to decide the restored Application, the Appeal itself can be disposed of before 8th May : 6 : 2009, will be free to do so. 10. Petition disposed of on the above terms. A.M.KHANWILKAR, J.