1 wp3597.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3597 OF 2010 Mr.Sandeep Sampatraj Kothari & Anr. ...Petitioners vs. Pramod B. Kejriwal 7 Anr. ...Respondents Mr.G.M.Joshi for the petitioners Mr.M.P.Vashi for the respondent no.1 CORAM :A.S.OKA,J. DATE : OCTOBER 7, 2010 P.C. 1 Heard the learned counsel for the petitioners. The challenge in this writ petition under Article 227 of the Constitution of India is to the order dated 11 th September 2008 passed by the learned Judge of the Court of Small Causes which has been confirmed in revision application by the Appeal Bench of the court of Small Causes. The said order has been passed in a suit filed by the first respondent in the Court of Small Causes. The suit has been filed under section 41 of the Presidency Small Causes Court Act,1882 for eviction of the petitioners. The suit proceeds on the ground that there was a leave and licence agreement dated 1 st February 2002 by which the petitioners were permitted to occupy the suit premises for a period of eleven months against payment of Rs.15,000/- per month. It is contended in the suit that the agreement was valid only till 31 st December 2002. The prayer in the suit is for eviction of the petitioners and for payment of arrears of compensation of Rs.5,40,000/- for the period from 1 st November 2004 to 31 st October 2007. There is a direction 2 wp3597.sxw sought against the petitioners-defendants to keep on paying a sum of Rs.15,000/- per month. 2 On an application made by the respondent-plaintiff at Exhibit-7, the following order has been passed on 11 th September 2008: 03 Without prejudice to the rights and contentions of parties, defendants do pay arrears of compensation amounting to Rs. 5,40,000/- from 1 st November 2004 to 31 st October 2007 @ Rs.15,000/- per month. 04 They do further deposit compensation amount @ Rs.15,000/- per month from 1 st November 2007 to 31 st August 2008. 05 Defendants do deposit those amounts within four weeks from the date of this order. 06 The amount of Rs.3,95,000/- be deducted from the aforesaid amounts which is already paid by defendants to plaintiff. 07 Costs in cause. This impugned order has been confirmed in the revision. 3 The learned counsel for the petitioners submitted that the 1 st petitioner has filed a substantive suit for declaration and injunction in the City Civil Court in which it is contended that the agreement on which reliance is placed by the respondent is not binding on the first petitioner. He submitted that when there was a substantive challenge in the form of a suit in the City 3 wp3597.sxw Civil Court, on the basis of the so called agreement of leave and licence, an order of deposit could not have been passed. He submitted that in any case, order directing payment of compensation amount to the first respondent ought not to have been passed. He submitted that considering the pendency of the suit in the City Civil Court, a drastic order of deposit ought not to have been made. 4 I have considered the submissions. The suit filed by the first respondent proceeds on the ground that leave and licence agreement dated 1 st February 2002 executed in favour of the 1 st petitioner has expired by efflux of time. As of today, there is no interim relief granted by the City Civil Court in respect of the said agreement. In fact, the suit has been dismissed on the ground of lack of pecuniary jurisdiction. 5 Under the impugned order, the petitioners have been directed to pay a sum of Rs.5,40,000/- being the arrears of compensation at the rate of Rs.15,000/- per month from 1 st November 2004 to 31 st October 2007. Adjustment of a sum of Rs.3,95,000/- has been allowed against the said amount. Thus for the said period, only a sum of Rs. 1,45,000/- is made payable. The other part of the impugned order directs the petitioners to deposit compensation in the Court at the rate of Rs.15,000/- per month only for a period of ten months i.e. From 1 st November 2007 to 31 st August 2008. This amount has been directed to be deposited in the Court. It is not in dispute that the petitioners are in possession of the suit premises. On the basis of leave and licence agreement admittedly executed by the first petitioner, order of deposit of the amount in terms of the Agreement has been passed. As of today there is no interim relief 4 wp3597.sxw obtained by the petitioners in respect of the said Agreement. w 6 Therefore, there is no reason to interfere with the discretionary order passed by the Court of Small Causes. 7 It is obvious that the deposit of the amounts is without prejudice to the rights and contentions of the parties and subject to final outcome of the pending suits. 8 Subject to what is observed above, writ petition is rejected. JUDGE