1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1363 OF 2009 WITH CIVIL APPLICATION NO.834 OF 2009 1.Unknown heirs and LRs of Taba Bhiva. 2.Mr.Suresh Sakharam Bhor & Ors. ..Petitioners. V/s. M/s. Shah Transport Co. ..Respondent. Mr.Rajendra Bhandari for petitioners. Mr.R.M.Hardas for Respondent. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. DATE : MARCH 30, 2009. P.C. : P.C. : P.C. : 1. This is yet another matter, which ought to have been listed under caption "admission" in terms of the order dated 12th February, 2009, especially when the Respondent has entered appearance before this Court through Counsel. Civil Application could have been listed alongwith Writ Petition which could have proceeded for admission. Since it is placed under caption "order", the Advocates appearing for the parties are likely to be misled and would not be prepared to address the Court for admission. However, in the present case, the parties are willing to address for admission of the Petition even today. Accordingly, hearing on admission of Petition 2 proceeds on clear understanding that the Petitioners shall deposit the amount in terms of the Order dated 12th February, 2009 before the Appellate Court by tomorrow. 2. After hearing Counsel for the parties in deference to the observations made by the Court, the Counsel appearing for both the parties on instructions stated that the present Writ Petition as well as Civil Application be disposed of on the following terms without recording any reason. In other words, the parties are inviting the order in the present proceedings by consent as follows: (i) The interim monthly compensation/- mesne profit in respect of the suit premises is fixed at Rs.2,000/- per month. (ii) The Petitioners shall pay interim monthly compensation/mesne profit at the above rate with effect from 9th April, 2008 i.e. the date of the decree. (iii) The Petitioners shall regularly deposit interim monthly compensation in the Appellate Court on or before 5th of every 3 English calender month. First interim monthly compensation shall be paid on or before 5th April, 2009 towards interim monthly compensation for the month of March, 2009. Arrears for the earlier period with effect from 9th April, 2008 shall be deposited in the Appellate Court within six weeks from today. (iv) Failure to comply with any of the above conditions or even in case of one default towards payment of monthly interim compensation, the interim protection available to the Petitioners during the pendency of the Appeal shall stand vacated forthwith. (v) The Respondent shall file undertaking before the Appellate Court to the effect that in the event the Petitioners succeed in the appeal and the decree is set aside, he would reimburse the entire amount in excess of agreed rent to the Petitioners within such time as the Court may direct alongwith interest thereon as would be fixed by the Appellate Court while finally disposing of 4 the Appeal. That undertaking shall be filed within two weeks from today. (vi) In addition, the Respondent shall furnish solvent surety to the satisfaction of the Registrar, Small Causes Court in the sum of Rs.One Lakh which would be subject to the outcome of the Appeal. (vii) If the Petitioners comply with the above condition, stay of operation of the decree of eviction passed in RAE & R Suit No.1055/1609 of 2006 dated 9th April, 2006 shall continue till disposal of the appeal pending before the Appellate Court. 3. It is once against made clear that if the Respondent fails to furnish solvent surety and undertaking as aforesaid, shall not be entitled for withdrawal of the amount deposited by the Petitioners before the Appellate Court. However, on complying with the said requirements, the Appellate Court may permit the Respondent to withdraw the amount deposited by the Petitioners towards arrears as well as future monthly compensation. 5 4. Accordingly, Writ Petition and Civil Application disposed of on the above terms. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)