1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.2683 OF 2006 Abdul Gafoor Mistry Sharif (since deceased) Mrs.Fatimabi wd/o Abdul Gafoor Mistry & Ors ...Petitioners vs. Miss Hajrabi Shaikh Ahmed ...Respondent Mr.V.K.Gupta i/b Gupta & Gupta for the petitioners Ms Neeta Jain h/f Mr.S.S.Rai for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 9, 2009 P.C. 1 The petitioners are the defendants and the respondent is the plaintiff. The respondent filed a suit for eviction against the petitioners under the provisions of Rent Act. In the said suit, the respondent filed an application seeking direction against the petitioners to deposit the rent during the pendency of the suit. The said application was opposed by the petitioners by contending that there is no landlord- tenant relationship between the respondent and them. On the basis of the material on record, the trial court allowed the said application and directed the petitioners to deposit arrears of rent at the rate of Rs.120/- per month from the date of filing of the suit and they were directed to pay monthly rent at rate of Rs.120/- per 2 month during the pendency of the suit. Against the order of the trial court, an Appeal was preferred by the petitioners. In the appeal, an application for interim stay was made. The Appellate Court by order dated 1 st February 2006 rejected the prayer for grant of stay. The Appellate Court observed that in case the petitioners succeed in appeal, the respondent shall return the entire amount paid by the petitioners. In fact, an undertaking to that effect was directed to be filed by the respondent. 2 The grievance of the learned counsel for the petitioners is that a preliminary issue of jurisdiction ought to have been framed and without deciding the preliminary issue, the interim direction to deposit the rent could not have been issued. 3 I have considered the submissions. It must be stated here that the appeal preferred by the petitioners has not been decided and the order impugned is an interim order pending the appeal. The said order sufficiently protects the petitioners by directing that in the event respondent fails in appeal, he will have to bring back the entire amount paid by the petitioners. 4 As far as the issue of jurisdiction is concerned, the suit is under the Rent Act. In the suit, the 3 respondent has alleged that the predecessor of the petitioners was the tenant. The jurisdiction of the court will be determined on the basis of the averments made in the plaint and defence of the petitioners cannot be considered. Going by the averments made in the plaint the Rent Court had jurisdiction to decide the suit. However, at the time of final hearing of the suit, an issue will have to be framed as to whether the respondent has established the landlord-tenant relationship. 5 Subject to what is observed above, writ petition is rejected. It is, however, clarified that the observations made by the trial court and the Appellate Court are only tentative observations and all contentions of the petitioners in pending suit and appeal are expressly kept open. JUDGE