1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 7341 OF 2011 Naval Pagadiwala ...Petitioner Versus Ajij Ul Haq Arif Ul Haq ...Respondent Mr.A.A.Kumbhakoni i/b. Sathyam Acharya for the Petitioner Mr.A.Y.Sakhare Sr.Counsel i/b.S.S.Kanetkar for the Respondent CORAM:- R.Y.GANOO, J. DATED:- 19th SEPTEMBER, 2011. P.C. 1. The respondent had filed Civil Suit No.217 of 2008 in the Small Causes Court at Pune for eviction of the petitioner under the provisions of the Bombay Rent Act. The said suit was decreed by judgment and decree dated 20.4.2011. Being aggrieved by the said decree, the petitioner filed appeal in the District Court being Civil Appeal No.375 of 2011. In the said appeal application at Exhibit 5 was filed so as to seek stay of execution of decree dated 20.4.2011. 2 2. Learned Advocate Mr. Kumbhakoni appearing on behalf of the petitioner submitted that since a substantive challenge is put up to the decree dated 20.4.2011, the execution of the decree should have been stayed. He submitted that the suit is filed for a part of the tenanted premises and as such the suit itself was not maintainable, and according to him this is a good ground which the petitioner has raised in appeal and therefore the petitioner is entitled to protection. 3. He further submitted that the view taken by the learned District Judge 5, Pune while rejecting the impugned order dated 10.8.2011 is erroneous and requires reconsideration at the hands of this court. 4. So far as the question of seeking decree in respect of part of the premises it is noted that the petitioner respondent claims that the premises on the rare side have already been put up in possession of the respondent and therefore the respondent was required to file suit for premises which are on the front side and which are more particularly described in the plaint. In any case, whether the decree sought is defective or not, on account of seeking possession in respect of the part of the premises will have to be considered by the 3 learned District Judge in the appeal. 5. The learned District Judge has rejected the application for stay of the execution of the decree primarily on the ground that the petitioner who is the original tenant is not residing in the suit premises and that the petitioner has let out the suit premises. The learned District Judge has considered the fact that the petitioner has not really contested the suit and that the written statement also is filed by the person who is said to be in possession of the premises, by name Mr.Tingre, who was appointed as Power of Attorney. The learned District Judge was also impressed by the fact that the petitioner has not stepped into the witness box and that the entire suit has been contested by Mr. Tingre. The learned District Judge has rejected the application for injunction by observing that if the decree is allowed to be executed, the petitioner is not going to loose the possession and that Mr.Tingre, to whom the premises are supposed to have been let out will loose the possession. 6. I have considered the submissions of learned Advocate Mr.Kumbhakoni. It may be proper for the petitioners to contest the 4 decree on the ground that the suit is filed for part of the premises. It may be mentioned that the said point will have to be decided by the Appellate Court, if properly raised. 7. So far as the stay of the execution of the decree , it is required to be noted that the petitioner is not enjoying the possession of the suit premises. The said premises are being enjoyed by the person who has been illegally inducted by the tenant and decree in that behalf is passed. Today, if the decree is executed, the petitioner is not going to be evicted from the suit premises, but Mr.Tingre, who has been inducted in an unauthorized manner is likely to be evicted. On this ground I hold that the view taken by the learned District Judge is correct. I see no reason to interfere with the impugned order dated 20.4.2011. The learned District Judge has considered the provisions of Order 41 Rule 5 in its proper perspective and has rightly decided the matter. Needless to mention that if the petitioner succeeds in the appeal, he would be entitled for restoration of premises. The petitioner would be able to make application before the District Court so as to protect the interest of the petitioner and to prevent the present respondent from creating third party rights etc till appeal is 5 disposed of as and when the decree is about to be executed. If at all such an application is filed by the petitioner, as mentioned aforesaid, same will be attended to in accordance with the provisions of law. 8. With the aforesaid observation the Petition is dismissed at the stage of admission. There shall be no order as to costs. (R.Y.GANOO, J.)