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.2065 OF 2009 Hindustan Construction Co.Ltd. ..Petitioner. V/s. Ajanta Warehousing Co.. ..Respondent. Mr.V.A.Thorat, Sr.Counsel with Mr. V. Sughdare, Mr.L.A.Rubens, Ms.Manisha Virkhare & Mr.Sujit S. Suryavanshi i/b. Vigil Juris for petitioner. Mr.M.L.Palan i/b. S.M.Kazi for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 3, 2009. DATE : MARCH 3, 2009. DATE : MARCH 3, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Palan waives notice for Respondent. 3. As short question is involved, Petition is taken up for hearing forthwith by consent. 4. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Small Causes Court dated 19th September, 2008 in Appeal No.666 of 2006. For the nature of order that I propose to pass, it is not 2 necessary to elaborate on the relevant facts which led to filing of the claim for mesne profit. 5. In support of the claim for the mesne profit, the decree holder relied on the Architect Certificate. However, that evidence has not been taken into account by the Courts below on the finding that it does not mention the fair market rent prevailing in the area in respect of the premises, which are similar to the suit premises. The Judgment Debtor relied on his Architect’s Certificate which stated the prevailing fair market rent in respect of the premises similar to suit premises, to be around Rs.4.80 per sq. ft. Keeping that rate in mind, according to the Petitioner/the Judgment Debtor, the market rent of the suit premises could not exceed Rs.15,368/- per month having regard to the fact that the suit premises were admeasuring about 4,520 sq.ft. However, the Courts below have rejected that version of the Judgment Debtor. At the same time, the Trial Court proceeded to assume that the fair market rent in respect of the suit premises would be some where in between Rs.21 to 23 per sq.ft. That assumption is arrived at by the Trial Court inspite of the fact noted that the prevailing market rent at the rate of Rs.21/- to Rs. 23/- was in respect of new buildings 3 in the locality, which are self-contained tenements unlike suit premises which is a chawl and without attached bathroom facility. Nevertheless, the Trial Court as well as the Appellate Court have proceeded to assume fair market rent in respect of the suit premises ought to be at the rate of Rs.23/- per sq. ft.. That conclusion is obviously based on conjecture and surmises, unsubstantiated by any legal evidence. The appropriate course to my mind is to set aside the impugned Judgment and Decree passed by the Appellate Court and relegate the parties before the Appellate Court with liberty to both the parties to file further documents and evidence, as also to amend their pleadings if required, so as to assist the Court in arriving at correct fair market rent in respect of the suit premises. All questions in that behalf are left open, which will have to be decided afresh in accordance with the law. 6. Accordingly, the impugned Judgment and Decree is set side. The Appeal is restored to the file of the Small Causes Appellate Bench, to be proceeded afresh in accordance with the law. The Appellate Court may give opportunity to both sides to amend their pleadings as well as to produce further evidence, if required. All questions are left open, 4 to be decided by the Appellate Court on its own merit. 7. The parties shall appear before the Appellate Court on 16th March, 2009 when the Appellate Court shall assign suitable date for hearing of the appeal. The restored Appeal shall be disposed of expeditiously preferably on or before 30th September, 2009. 8. Petition disposed of accordingly. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)