1 1 caw.932.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 932 OF 2010 IN WRIT PETITION NO. 1642 OF 2004 M.K. Jagasia. ... Applicant Vs. Jagdeep Singh Paul and ors. ... Respondents ----- Mr. G.S. Godbole i/b S.S. Kanetkar for the Applicant. Mr. Brijesh K. Upadhaya for the Respondents. ----- CORAM : A.M. KHANWILKAR, J. DATE : 13 th August, 2010. P.C. 1 Heard the learned counsel for the parties. 2 The landlord has filed the present Application for enhancement of monthly compensation as condition for continuing stay in favour of the Respondents-tenants who have challenged the decree of eviction passed against them by the Court below. Writ Petition filed by the tenants is already admitted. Interim stay as prayed for was granted. However, by order dated 30 th July, 2008, the Court directed the tenants to 2 1 caw.932.10 pay monthly compensation at the rate of Rs.3,100/- with effect from August, 2007. It has been held that going by the Ready Reckoner price, the value of the flat in question would be around Rs. 37 lacs at the relevant time. On that finding, it was further held that the reasonable fair market rent of such property would fetch around Rs.3,70,000/- per annum being 10% returns on the value of the property. That means the tenants would be responsible to compensate the landlord by paying monthly compensation of atleast Rs. 31,000/-. However, inadvertently, the order as was transcribed in paragraph No.4 records that the amount payable by the tenants towards monthly compensation is at the rate of Rs.3,100/- only. It is relevant to notice that the finding recorded by this court on the earlier occasion about the fair market price of the flat being around Rs.37 lacs and the reasonable returns thereon equivalent to the market rent would be atleast 10% of the value of the flat, which would come to Rs.3,70,000/- per annum has been allowed to become final. That finding has not been challenged by the tenants. However, it is the landlord who moved another application being Civil Application No. 2067 of 2008 bringing it to the notice of the Court that there has been obvious error in recording the monthly compensation amount of Rs.3,100/- only in the order dated 30 th July, 2008. That grievance of the landlord was considered and after hearing both sides, the said application was disposed of by giving relief to the landlord only to the extent of the amount mentioned in the prayer clause of the original application filed by the landlord, which was only Rs.7,000/- per month. The Court expressed 3 1 caw.932.10 its inability to provide any further monthly compensation amount as the landlord themselves had asked for amount of Rs.7,000/- as monthly compensation. Realizing the mistake, the landlord sought liberty of the Court for enhancement of the monthly compensation amount. That liberty has been granted as recorded in the order dated 09 th January, 2009 as can be discerned from paragraph No. 3 of the order. 3 Pursuant to the said liberty, present application has been filed by the landlord. The landlord has reiterated the position stated in the two orders passed on the earlier occasion between the parties by this Court. It is not in dispute that the order passed by this Court on 30 th July, 2008 as well as 09 th January, 2009 have been allowed to attain finality by the Respondents-tenants. Going by the said findings, which are binding on the parties as well as this Court, the landlord prays that the correct and appropriate compensation amount, which would be equivalent to fair market rent in respect of the premises in question would not be less than Rs.31,000/- per month and are praying for such compensation. This application is resisted essentially on two arguments. The first argument is that the application is misconceived. It is in the nature of the review. Secondly, it is submitted that amount determined by this Court on the earlier occasion on 09 th January, 2009 in a sum of Rs.7,000/- per month as compensation amount in respect of the suit flat is appropriate and reasonable one, which needs no enhancement. To buttress this submission, the learned counsel for the Respondents-tenants has relied 4 1 caw.932.10 on the dictum of the Apex Court in paragraph No.18 of the case between Atma Ram Properties (P) Ltd Vs. Fedral Motors (P) Ltd reported in (2005) 1 SCC 705. 4 The first objection taken by the tenants that this Application is not tenable is ill-advised. That does not commend to me for the simple reason that the application is not seeking review of the earlier order, but seeking enhanced monthly compensation in furtherance of the finding recorded in the two earlier orders passed by this Court. Moreso, it has been filed in view of the liberty given by this court in terms of order dated 09 th January, 2009. 5 Insofar as the second argument of the Respondents-tenants that the amount of Rs.7,000/- per month towards monthly compensation is reasonable one is concerned, even the same cannot be countenanced for more than one reason. Firstly, the order passed on 30 th July, 2008 after hearing both the sides, it has been clearly found that the fair market value of the suit property was around Rs.37 lacs at the relevant time. It is on that basis, it was held that 10% returns on such value would be fair and reasonable mense profits, which would be equivalent to market rent of the premises. That amount would work out to Rs.3,70,000/- per annum. Naturally therefore, the monthly compensation would be around Rs.31,000/- per month. Thus understood, that it is not possible to accept the argument that the amount as claimed by the Applicant in the present 5 1 caw.932.10 application is excessive. As aforesaid, the finding recorded by this Court in its order dated 30 th July, 2008 and reiterated in the order dated 09 th January, 2009 has been allowed to become final. It is not open for the Respondents-tenants to assail the said finding in the present application. Going by the said finding as aforesaid, the argument that the amount of Rs.7,000/- per month only towards monthly compensation in respect of the suit property is fair and reasonable cannot be accepted. Notably, it is not the case of the tenants that they will not be able to pay the monthly compensation of Rs.31,000/- in respect of the suit premises during the pending of the Petition. If that plea was to be raised it could have been considered on its own merits. 6 The reliance placed on the decision of the Apex Court is also inapposite. In that, the Apex Court in paragraph No. 18 has clearly held that the Court while protecting the tenants to enjoy the property during the pendency of the appeal proceedings questioning the correctness of the decree of eviction would be justified in passing appropriate orders so that reasonable mense profits, which may be equivalent to the market rent is paid by such person (tenant), who is holding over the suit property. The judgment more than assisting the Respondents-tenants would reinforce the position already recorded by this Court in the earlier two orders. In my opinion, therefore, the application deserves to be allowed in terms of prayer clause (a). However, the Applicant would succeed only from the date of application and would not be entitled for retrospective 6 1 caw.932.10 benefits. At the same time, it is made clear that the Applicant would be free to pursue the remedy for realizing mense profits for the loss suffered by the Applicant due to holding of the property by the Respondents- tenants during the relevant period, which proceedings will have to be decided on its own merits. 7 In the circumstances, application is allowed on the following terms: I. The Respondents-tenants shall be liable to pay monthly compensation at the rate of Rs.31,000/- with effect from March, 2010 i.e. the date of this application. The Respondents-tenants shall pay the arrears within eight weeks from today. II. The Respondents-tenants shall pay future monthly compensation at the rate of Rs.31,000/- on or before 10 th of every English calender month directly to the Applicant-landlord, failing which the interim relief operating in favour of the Respondents- tenants in the pending Writ Petition 1642 of 2004 shall stand vacated forthwith without further reference to the Court. That shall be the consequence even in case of one default committed by the Respondents-tenants to comply with any of 7 1 caw.932.10 the above condition. III. Needless to observe that this arrangement will be without prejudice to the rights and contentions of the parties including the rights of the Applicant- landlord to ask for suitable mense profits for the entire period after the date of the institution of the suit or otherwise. All questions in that behalf will have to be considered on its own merits and in accordance with law. IV. The arrangement directed in paragraph No.5 of the order dated 30 th July, 2008 shall remain as it is. 8 Application disposed of on the above terms. [ A.M. KHANWILKAR, J ]