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.2500 OF 2009 WITH WRIT PETITION NO.2501 OF 2009 Madhavlal Narayanlal Pittie. ..Petitioner. V/s. Mr.Shekhar Narayan Shetty & Ors. ..Respondents. Mr.Mustafa Doctor with Mrs. D.A.Chhapgar i/b. M/s.D.J.Kamdin & Co. for Petitioner. Mr.Vivek Kantawala a/w. Mrs.Martha Butala for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Kantawala waives notice for Respondent No.1. 4. As short question is involved, Petition is taken up for final hearing forthwith, by consent. 5. Both these Petitions take exception to the 2 Order passed by the Appellate Bench of the Small Causes Court, at Mumbai rejecting the landlord’s application for fixation of interim compensation /mesne profit, to be paid by the tenants to avail of interim protection granted by the Appellate Bench at the time of admitting the Appeal. The sole reason recorded by the Court to non-suit the landlord is that no condition was imposed on the Respondent No.1 when the Appeal was admitted and interim relief granted. Counsel for the Petitioner has rightly pressed into service observations made by this Court in the case of Super Max International Pvt.Ltd. & Super Max International Pvt.Ltd. & Super Max International Pvt.Ltd. & Ors. v/s. M/s. R.M.Choksey & Co. (Civil Ors. v/s. M/s. R.M.Choksey & Co. (Civil Ors. v/s. M/s. R.M.Choksey & Co. (Civil Application no.37 of 2009 in Writ Petition No.8702 of Application no.37 of 2009 in Writ Petition No.8702 of Application no.37 of 2009 in Writ Petition No.8702 of 2005) dated 3rd March, 2009 2005) dated 3rd March, 2009 2005) dated 3rd March, 2009, which squarely answers the point in issue. This Court has taken the view that the landlord is not precluded from applying for fixation of interim compensation/mesne profit at a later stage, when the proceedings are still pending and it is unlikely that the same would be decided in the near future. Accordingly, the sole reason recorded by the Court below cannot be sustained. 6. Counsel for the Respondent No.1 however, relies on the observations of the Apex Court in the case of Niyas Ahmad Khan V/s. Mahmood Rahmat Ullah Niyas Ahmad Khan V/s. Mahmood Rahmat Ullah Niyas Ahmad Khan V/s. Mahmood Rahmat Ullah 3 Khan & Anr.dated 5th May, 2008 in CIVIL APPEAL NO.372 Khan & Anr.dated 5th May, 2008 in CIVIL APPEAL NO.372 Khan & Anr.dated 5th May, 2008 in CIVIL APPEAL NO.372 OF 2008. OF 2008. OF 2008. The observations in the said decision have no application to the fact situation of the present case. In that case, the claim for fixation of interim compensation/mesne profit was made by the landlord in the Writ Petition filed by the landlord before the High Court questioning the correctness of the Judgment and Decree passed by the Court below dismissing his suit, which was a converse case, unlike the decree of eviction, which is challenged by the tenant by way of Appeal or Writ Petition. The Apex Court in paragraph-8 has made it more than clear that the observations in the said order are in relation to the matters with reference to writ petition filed by the landlords. 7. Counsel for the Respondent No.1 would then contend that the Petitioner is a senior citizen, for which reason the appeal pending before the Appellate bench be ordered to proceed for hearing expeditiously. That is a matter which will have to be addressed by the Appellate Bench, when the restored application is to be considered by it. If the Appellate Bench is of the view that the Appeal can proceed instantly or in near future, it will be open to the Court to take a pragmatic view of the 4 matter and decide the Appeal itself instead of fixing the matter for hearing the restored application. However, if the Appeal cannot be decided within a period of three months from today, the Appellate Bench shall instead decide the restored application forthwith. 8. Accordingly, these Writ Petitions succeed. Impugned Judgment and orders are set aside instead the respective applications Exh. 9 and Exh.11 are restored to the file of the Appellate Bench to its original number, to be heard and decided on its own merit, keeping in mind the above observations. Parties to appear before the Appellate Bench on 30th March, 2009 when the restored application may proceed for hearing. 9. Both the Writ Petitions disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)