IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1266 OF 2009 Smt.Rukminibai Jagnath Jagdale & Anr...Petitioners V/s. Smt.Kanchan Hastimal Khivansara & Ors. ...Respondents ...... Mr.J.S.Kini i/b Mr.Suresh Dubey for Petitioners. Mr.Jaydeep Deo for Respondents. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. FEBRUARY 10, 2009. FEBRUARY 10, 2009. FEBRUARY 10, 2009. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Jaydeep Deo waives notice for Respondents. 3. As short question is involved, Petition is taken up for final disposal forthwith, by consent. : 2 : 4. This Petition takes exception to the Judgment and Order passed by the District Judge-14 and Assistant Sessions Judge, Pune below Exhibit 4 in Civil Appeal No.586 of 2008. The Appellate Court was impressed by the argument that the ratio of the Apex Court in the case of Atmaram Properties Atmaram Properties Atmaram Properties (Pvt.) Ltd. v. Federal Motors Pvt.Ltd. reported (Pvt.) Ltd. v. Federal Motors Pvt.Ltd. reported (Pvt.) Ltd. v. Federal Motors Pvt.Ltd. reported in 2005 (3) Bom.C.R. 274 in 2005 (3) Bom.C.R. 274 in 2005 (3) Bom.C.R. 274 and in the case of Anderson Wright & Co. v. Amar Nath Roy & Ors. Anderson Wright & Co. v. Amar Nath Roy & Ors. Anderson Wright & Co. v. Amar Nath Roy & Ors. reported in 2005 SAR (Civil) 518 reported in 2005 SAR (Civil) 518 reported in 2005 SAR (Civil) 518, applies only to commercial premises and not to residential premises. This opinion recorded by the lower Court is palpably incorrect. No such principle can be deduced from the two decisions referred to by the Appellate Court. On the other hand, it is a general statement of law which applies to all kinds of properties covered by the Rent Legislation in respect of which the landlord has succeeded in getting decree of eviction from the lower Court. 5. Accordingly, the impugned Judgement and order is set-aside. Instead, the Application preferred by the Petitioners (Exhibit 4) is restored to the file to its original number to be : 3 : heard afresh by the Appellate Court on its own merits in accordance with law. 6. The parties shall appear before the Appellate Court on 2nd March 2009. It will be open to the parties to file further affidavits and/or documents to substantiate their stand regarding fair market rent in respect of the suit premises, which can be considered by the Appellate Court on its own merits. The Appellate Court shall finally dispose of the Application as expeditiously as possible and not later than 15th April 2009. All questions in the said restored proceedings are left open. 7. It is made clear that this order is in no way doubting the correctness of the order granting stay to the execution of decree of possession, which is subject matter of pending appeal. However, the Appellate Court is free to impose condition of payment of interim compensation/mesne profit during the pendency of appeal as a condition precedent for grant of or continuation of interim relief. : 4 : 8. Petition disposed of accordingly. A.M.KHANWILKAR, J.