1 38 caf.3645.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 3645 OF 2010 IN FIRST APPEAL NO. 1429 OF 2010 Chandrashekhar Moreshwar Mahashabde. ... Applicant Versus Ramesh Shridhar Joshi. ... Respondent ----- Mr. Jaydeep S. Deo for the Applicant. Mr. Arvind Purohit for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 11 th March, 2011. P.C. 1 Heard the learned counsel appearing for the parties. 2 The first appeal preferred for challenging the decree of possession of the suit flat passed against the Applicant has been admitted for final hearing. The order dated 4 th February, 2011 passed on the present civil application for stay reads thus: “1 Rule. 2 Advocate for the Respondent waives service. 2 38 caf.3645.10 3 Prima-facie, it appears to me that the Applicant has no right in respect of the suit flat. Appeal has been mainly admitted as issue of jurisdiction has been raised. It appears that the Applicant is occupying the suit flat without making any payment for considerably long time. There is a money decree in the sum of Rs.50,000/- and there is a direction for holding inquiry for determination of mesne profits. As a condition for grant of stay, the Applicant will have to deposit a sum of Rs.50,000/-, which is awarded towards the wrongful possession of the suit flat. Moreover, the decree directs that the inquiry to be held for determination of mesne profits. The Applicant will have to deposit a reasonable amount by way of compensation in respect of the suit flat as a condition for grant of stay. 4 It will be open for the parties to file valuation reports on record for determination of the compensation. 5 Stand over till 11 th March, 2011. By way of ad-interim relief, it is directed that decree for possession shall not be executed subject to condition of the Applicant depositing a sum of Rs.50,000/- with the trial Court within a period of four weeks from today. If compliance is not made, the stay will stand vacated without further reference to the Court. If compliance is made, it will be open for the Respondent to withdraw the said amount. Withdrawal will be obviously subject to final outcome of the appeal.” 3 The learned counsel appearing for the Respondent has tendered valuation report of M/s.Shilp Consultant, Project Consultant, Government Approved Valuer. He has also placed on record extract of the Ready Reckoner. The learned counsel appearing for the Applicant 3 38 caf.3645.10 has tendered on record an affidavit to which a copy of the Leave and Licence Agreement dated 5 th February, 2011 has been annexed. It is stated in the said affidavit that the leave and licence agreement is in respect of the flat in a nearby property, which shows that a flat admeasuring 800 square feet on the third floor of the building in the same locality has been given on leave and licence basis at the licence fee of Rs.9,000/- per month. 4 The submission of the learned counsel appearing for the Applicant is that a flat admeasuring 800 square feet is fetching monthly compensation at the rate of Rs.9,000/-. He pointed out that the area of the suit flat is only 310 square feet. He pointed out that the Applicant has shown willingness to pay Rs.3,500/- per month, but as there is no electricity connection to the flat, he submitted that the compensation will be less than Rs.3,500/- per month. Apart from the finding of the trial Court, this Court has recorded a prima-facie finding that the Applicant may not have any right, title or interest in the suit flat. However, issue of jurisdiction of the trial Court arises and that is why possession of the 4 38 caf.3645.10 Applicant will have to be protected. 5 Perusal of the valuation report of M/s.Shilp Consultant shows that all relevant aspects have been taken into consideration including the age of the building, nature of construction etc. The report also considers the locality in which the suit flat is situated. The valuer has taken into consideration several factors and has recorded an opinion that monthly rent in respect of the suit flat will be between Rs,10,800/- to Rs.12,500/- per month. The Applicant is relying upon the leave and licence agreement of another flat. The leave and licence agreement cannot be relied upon as nothing is placed on record to show that as to what is the nature and age of the building in which the flat subject matter of the agreement is situated. It must be noted here that in the cross- examination of the Applicant, a suggestion was given to the Applicant that if the suit flat is let out, it will fetch rent of Rs.10,000/- per month. The response of the Applicant was that he was unable to tell whether the suit flat will fetch Rs.10,000/- per month. The Applicant did not deny the correctness of the suggestion, but merely expressed inability to state 5 38 caf.3645.10 whether suit flat will fetch rent of Rs.10,000/- per month. The cause title of the application discloses that the Applicant is an advocate. 6 As observed in the earlier order, the Applicant will have to pay a reasonable compensation from the date of the decree. Considering the valuation report tendered on record, reasonable compensation will have to be determined at the rate of Rs.10,000/- per month, which will be payable from the date of the decree. It must be noted here that the Applicant will have to be granted benefit of enjoying electricity supply to the suit flat. It will be open for the Applicant to apply for electricity supply. The Respondent shall give no objection in writing to the Applicant in prescribed/appropriate form to enable the Applicant to apply for electricity connection to the suit flat. It is obvious that no objection given by the Respondent will be without prejudice to his rights and contentions in the appeal. It is also obvious that even if the Applicant secures electricity supply, he will not be entitled to claim any equity on that ground. 6 38 caf.3645.10 7 Hence, civil application is disposed of by passing the following order: i. The execution of decree for possession is stayed subject to condition of the Applicant depositing with the trial Court compensation at the rate of Rs. 10,000/- per month from 1 st May, 2010 till the disposal of the Appeal. The arrears payable upto 31 st March, 2011 shall be deposited by the Applicant with the trial Court on or before 31 st May, 2011. The Applicant shall keep on depositing a sum of Rs.10,000/- per month from April 2011 on or before 10 th day of every calender month with the trial Court ; ii. Stay is granted subject to condition that the Applicant will file an undertaking in this Court within a period of four weeks from today stating that he will not create any third party rights in respect of the suit flat and will not part with possession thereof in favour of any third party till the disposal of the suit ; iii. It will be open for the Applicant to apply to the concerned authority for grant/restoration of the electricity supply to the suit flat ; iv. The Respondent shall give no objection in writing 7 38 caf.3645.10 in prescribed/appropriate form to the Applicant to enable the Applicant to obtain electricity supply or to obtain restoration of the electricity supply to the suit flat. It is obvious that electricity supply or restoration of electricity supply will have to be obtained by the Applicant at his own cost and he will have to pay electricity charges punctually to the concerned authority. The consent to be granted by the Respondent shall be without prejudice to his rights and contentions in the appeal; v. Permission granted to the Applicant to obtain electricity supply will not crate any equity in favour of the Applicant ; vi. If the arrears as ordered are not deposited by the Applicant on or before 31 st May, 2011, the interim relief of stay will stand vacated without further reference to the Court ; vii. As and when the amounts are deposited by the Applicant, it will be open for the Respondent to withdraw the said amounts subject to condition of the Respondent filing an undertaking with the trial Court that in the event the Applicant succeeds in the appeal, the Respondent will bring back the amounts with appropriate interest thereon ; 8 38 caf.3645.10 viii. It is made clear that deposit of the aforesaid amounts by the Applicant and withdrawal thereof by the Respondent will be subject to final outcome of the appeal and will be without prejudice to their rights and contentions. [ A.S.OKA, J ]