1 WP 5810/10 & WP 6423/10 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5810 of 2010 Hamir Jaisingh Mulani ... Petitioner versus Rakesh Vipin Khakhar & Anr ... Respondents ... Mr.Uday Warunjikar i/b M/s.Mayur Narendra & Co. for the petitioner. Mr. Rakesh S. Dave i/b N.N. Vaishnawa & Co. for respondent no.1. WITH WRIT PETITION NO.6423 of 2010 Rakesh Vipin Khakhar & Anr ... Petitioners versus Hamir Jaisingh Mulani ... Respondent ... Mr. Rakesh S. Dave i/b N.N. Vaishnawa & Co. for the petitioner no. 1. Mr.Uday Warunjikar i/b M/s.Mayur Narendra & Co. for the respondent CORAM : D.G. KARNIK, J. DATED : 16th August 2010 P.C. 1. These two writ petitions are directed against the same order i.e. the order dated 6 May 2010 passed by the appellate bench of 2 WP 5810/10 & WP 6423/10 the Small Causes Court granting stay of execution of a decree passed by the trial Court but subject to deposit of Rs.25,000/- p.m. By the tenant. Hence both the petitions are disposed of by this common order. 2. The order being interlocutory, I am not inclined to entertain the writ petitions in exercise of Article 227 of the Constitution of India. Even otherwise, I am of the view that the order requires no interference. 3. Since there are two cross petitions, parties are referred to by their status in the original suit. Plaintiff is the owner of the suit property. The defendant is a gratuitous licencee who was allowed to stay in the suit premises along with the plaintiff. According to the plaintiff, the license was terminated. Since defendant was not in exclusive possession but was living jointly with the plaintiff, plaintiff filed a suit simplicitor for injunction restraining the defendant from entering the suit premises on termination of the license. The suit was decreed by the trial Court. On appeal, the defendant applied for stay of execution of the order. The appellate Court granted stay subject to the defendant paying Rs. 25,000/- per month to the plaintiff. That order is impugned in these petitions. 4. Learned counsel for the defendant submitted that since the suit was not for possession there was no question of directing any 3 WP 5810/10 & WP 6423/10 payment of compensation or mesne profits and therefore, the appellate Court erred in granting the payment of mesne profits. It may be noted that the appellate Court has not directed payment of mesne profits but it has directed payment of Rs.25,000/- as compensation as a condition for stay of execution of the decree. Under Order 41 Rule 5 of the Code of Civil Procedure, the Court is entitled to impose a condition while staying the operation of a decree. The only question that arises for my consideration is whether the discretion exercised by the appellate Court in putting the condition of payment of compensation of Rs.25,000/- is in any way erroneous. 5. Counsel for the plaintiff submitted that taking into consideration all the circumstances the compensation awarded is too low, while counsel for the defendant submitted that no compensation at all should have been directed to be paid to the plaintiff. The plaintiff has produced before the trial Court a report of a Chartered Architect who had valued the premises and on the basis of valuation, had come to the conclusion that the market rent of the suit property would be Rs.2,02,000/- per month. The suit property is about 1200 sq.ft in a posh and high profile locality in Mumbai. The locality has been described in paragraph no.8 and 9 of the judgment of the appellate Court. In my view, the appellate Court has taken into consideration the relevant facts for determination of amount of compensation. At the first blush, it may appear that the amount of compensation of Rs.25,000/- per 4 WP 5810/10 & WP 6423/10 month as against the estimated market rent of Rs.2,02,000/- is too low. However, it may be mentioned that the defendant is not in exclusive possession of any part of the property but is only in joint possession and therefore, obviously he cannot be required to pay the amount equivalent to the market rent of the property. Taking this into consideration, in my view, it would not be appropriate to interfere in exercise of a discretionary writ jurisdiction under Article 227 of the Constitution of India in the discretionary order of the appellate Court. Hence, both the writ petitions are rejected summarily. (D.G. KARNIK,J.)