dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.8045 OF 2008 PETITION NO.8045 OF 2008 PETITION NO.8045 OF 2008 Smt.Usha Malhotra Petitioner Vs. Shri Ramprakash R.Khanna, since deceased & ors. Respondents Mr.V.A.Thorat, Sr.Advocate i/by Mr.R.A.Thorat and Mr.K.P.Mali for the Petitioner. Mr.Owen Menezes with Mr.R.S.Tripathi i/by Mr.P.P.Prabhu for respondent no.1(b). CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 6th January, 2009. : 6th January, 2009. : 6th January, 2009. P.C. P.C. P.C. The petitioner has challenged the impugned interlocutory order dated 17.11.2008 passed by the Appellate Bench of Small Causes Court at Bombay, whereby, while admitting the Appeal against the decree of eviction from the non-residential premises admeasuring 3810 sq.ft., directed, pending the Appeal, to deposit Rs.20/- per sq.ft. per month towards compensation. The respondents/decree holders are permitted to withdraw the said amount on furnishing written undertaking to adjust the amount towards mesne profits in case it is determined. 2. The Appellate Court, after considering the decision of Apex Court in Atma Ram Properties (P) Ltd. Atma Ram Properties (P) Ltd. Atma Ram Properties (P) Ltd. ( 2 ) vs. vs. vs. Federal Motors (P) Ltd., (2005)1 SCC 705 and Federal Motors (P) Ltd., (2005)1 SCC 705 and Federal Motors (P) Ltd., (2005)1 SCC 705 and Anderson Anderson Anderson Wright Wright Wright and Co. v. Amar Nath Roy & ors., AIR and Co. v. Amar Nath Roy & ors., AIR and Co. v. Amar Nath Roy & ors., AIR 2005 2005 2005 SC 2457 SC 2457 SC 2457 and the scope and purpose of Order 41, Rule 5 of Civil Procedure Code (CPC) has exercised the discretion based upon the material placed on record including the order passed by the High Court in Writ Petition No.1281/2008 by Order dated 26th February, 2008 and rival material/insances placed on record expressed circumstances in the following words: "9. ........ In common Order in this Appeal dated 14th January, 2008, position reflects that the Decree Holder has claimed compensation at the rate of Rs.1,52,000/- for the suit premises. Whereas, the Defendant/Appellant brought to the notice that in the vicinity of the suit premises, license fee is of Rs.9,000/- for the area 1250 sq. and further licence fee is of Rs.30,400/- for the area of 3,400 sq. and in the third agreement license fee is of Rs.6,000/-. However, along with the present application decree holder has placed on record two leave and license agreements dated 26th December, 2007 executed by Messrs. Sumesh Fabrics in favour of Sivvaana and Style Melange Creations respectively. According to the Decree holder the said premises referred in these agreements are back side portion of the first floor of the suit building admeasuring 3283.19 sq.ft. and wherein license fees are fixed at the rate of Rs.26,000/- per month and at the rate of Rs.80,000/- per month respectively. On the contrary argued for the Appellant that the suit premises are in dilapidated condition and without proper amenities and tenanted in 1969, whereas the premises referred in these agreements are totally renovated where license fee referred in these agreements not considered for fixation of market rate for the suit premises. On the ( 3 ) other hand argued for the Decree holder that the suit premises are in the front portion of the suit building and hence the suit premises must face more market rate than that of the premises referred above in the said agreements. Of course, it is contended by the Appellant that the suit premises are in the middle portion of the suit building as described in reply affidavit (Exhibit No.31). Thus, taking into consideration the nature of the suit premises, the location of the suit premises, amenities provided to the suit premises and license fees fixed to the adjoining premises referred in the said two agreements and other material on record, and changed circumstances as said just and proper to determine compensation at the market rate of Rs.20/- per sq.ft. instead of Rs.15/- per sq.ft. or Rs.40/- per sq.ft. per month or Rs.15,000/- per month which will be equitable order and will meet ends of justice considering the rival contentions of both the parties." 3. In my view, as the reasoning given is well within the frame work of law and the record and as the Appellate Court considered the material placed by both the parties, the location and the prevailing licence fees in the locality of similarly placed premises. In the present case, the same building and as there is clear decree of possession of already passed against the petitioner and considering the area of 3810 sq.ft. of premises in possession situated at Khanna Estate, Near Saki Naka, Kurla-Andheri Road, Mumbai and as the Court has reconsidered the matter after the order passed by the High Court, I see the stay as granted on the condition to pay the compensation at the rate of ( 4 ) Rs.20/- per sq.ft. need no interference. 4. Resultantly, the writ petition is dismissed. The interim order as passed earlier stands vacated. No costs. 5. Time to deposit the amount as directed is extended for further four weeks from today. In the meanwhile no coercive steps for four weeks from today. [ANOOP [ANOOP [ANOOP V. MOHTA, J.) V. MOHTA, J.) V. MOHTA, J.)