1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2147 OF 2008 IN L.C.SUIT NO.717 OF 2005 Morarji Hariram : Plaintiff versus Neera Handa & ors. : Defendants. Mr.Sanjay Jain i/by L.J Law for the Plaintiff. Mr.Prashant Karande for Defendant Nos.1 to 3. CORAM : R.M.SAVANT, J DATED : DECEMBER 08, 2008 P.C. 1. The Plaintiff has filed the above Notice of Motion for the following relief :- a] that pending the hearing and final disposal of the above Suit, this Hon'ble Court be pleased to direct the Defendants to deposit an amount of Rs.3,70,000/- being the 50% of the arrears of compensation at the rate of Rs.2,500/- per month from 1st April 1994 till 31st May 2008 and further amount of Rs.2,500/- per month from 1st 2 June 2008 till the Defendants continue to occupy the suit room; 2. The Plaintiff has filed the above Suit for a declaration that the Defendant Nos.1 to 3 jointly or severally or individually have no right, title and/or interest in the suit room being Room No.22 in the building Kutchi House, 17, Brahmanwada Road, Matunga, Mumbai 400 019 and that the Defendant Nos.1 to 3 are the trespassers and use, occupation and possession of the suit room by the Defendant Nos.1 to 3 jointly or individually, is illegal, unlawful and without any authority title or otherwise of whatsoever nature and the Defendant Nos.1 to 3 are liable to be evicted from the suit room. The Plaintiff also sought a decree of possession against the Defendant Nos.1 to 3. The Plaintiff also sought a decree to the effect that the Defendant Nos.1 to 3 be ordered and decreed to pay to the Plaintiff an amount of Rs.2,500/- per month being the half share compensation at the market rate of the suit room or such sum as this Court deems fit and proper in the facts and circumstances of the case after holding an inquiry under Order XX Rule 12 of the Code of Civil Procedure from the date of filing of the suit till the date of handing over of the 3 possession of the suit room by the Defendant Nos.1 to 3 to the Plaintiff. The Plaintiff has also sought a decree against the Defendants to the effect that the Defendant Nos.1 to 3 to make a deposit of Rs.3,22,500/- towards arrears of compensation from 1st April 1994 till 31st December 2004 in respect of occupation of suit room being Room No.22. 3. By the order of the Division Bench of this Court in Appeal No.496 of 2006, the hearing of the above Suit has been expedited and the commissioner for recording of evidence has been appointed. 4. The Plaintiff has filed the above Notice of Motion on the basis that the Defendants are in wrongful occupation of the said Room No.22 and has claimed the reliefs sought in the Motion. 5. On behalf of the Defendants, an Affidavit in Reply has been filed by Neera Handa – the Defendant No.1 above named. The manner in which the Defendant No.1 has come in possession of the said Room No.22 has been stated in the said Affidavit in Reply. It is 4 denied by the Defendant No.1 that she has trespassed in the said Room No.22. The prayer sought for in the Motion is opposed on the ground that if the said prayer is granted, it will amount to awarding mesne profits even before passing of a decree. 6. I have heard the learned counsel for the Plaintiff and the Defendants. In my view, the Plaintiff's case is as yet to be adjudicated and upon the same would hinge the Plaintiff's claim for arrears of compensation and the mesne profits. Granting the relief sought for in the Motion at this stage would militate against the provisions of Order XX Rule 12 of the Code of Civil Procedure. The relief sought in the Motion cannot be granted, merely because, it is the Plaintiff's case that ultimately if he succeeds in the suit, if deposit sought for by the Plaintiff is not granted, it would amount to a paper decree. Hence the above Notice of Motion is dismissed. [R.M.SAVANT, J]