1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1281 OF 2008 Smt.Usha Malhotra .. Petitioner Versus Ramprakash Khanna deceased through Lrs.Satyapal Khanna & Ors..Respondents Mr.V.A.Thorat, Senior Counsel i/b. R.A.Thorat and K.P.Mali for petitioner Mr.R.S.Tripathi i/b. P.P.Prabhu for respondent No.1(b) CORAM : S.C.DHARMADHIKARI, J. DATE : 26th February 2008 P.C. . Petitioner is appellant in Appeal No.388 of 2007. The petitioner is aggrieved by an order dated 14th June 2008 delivered by the Appellate Bench of the Court of Small Cause At Mumbai below Exh.7 and 22 in the above appeal. 2 2. Petitioner is a tenant in R.A.E. Suit No.179/334 of 1997 which is a suit for possession and has been decreed against her. The possession decree has been challenged by filing an Appeal before the Court of Small Causes (Appellate Bench). The appeal is pending. Exh.7 was an application for stay of the execution of decree of possession. That is an application filed by the petitioner whereas, Exh.22 is an application by the original decree holder - plaintiff, praying that the compensation be fixed at Rs.1,52,000/- per month and the petitioner be directed to pay the same as pre-condition for stay of execution of the subject decree. 3. Upon hearing parties, lower appellate court has directed petitioner to pay a sum quantified at Rs.15/- per sft. per month in respect of the suit premises which is admeasuring about 3810 sq.feet. The lower appellate court has directed the petitioner to pay the said sum 3 on or before 10th March 2008 and continue to deposit the same on or before 10th of each succeeding month, till the hearing of the appeal. 4. Mr.Thorat, learned Senior Counsel appearing for petitioner has contended that the lower appellate court has misconstrued and misapplied the ruling in the case of Atma Ram Properties Pvtr.Ltd. Vs. Federal Motors (P) Ltd. reported in (2005) 1 S.C.C. 705. The Supreme Court has, according to learned Senior Counsel, not permitted the landlord to charge market rate. He submits that the said ruling has been referred to and the learned Judges constituting the appellate bench have overlooked that the landlord is entitled to be compensated by reasonable amount being paid. Reasonable sum need not be the contractual sum but by no means the same should be the market rate prevailing, as well. 4 5. On the other hand, Mr.Tripathi learned Counsel appearing for landlord has justified the impugned order and contended that the petitioner himself has brought instances where the prevailing rate is Rs.12/- per sft.per month. In such circumstances, the discretion exercised by the lower appellate court cannot be said to be improper, erroneous or arbitrary soas to call for interference by this Court in its jurisdiction under Article 227 of the Constitution. 6. The trial court has decreed the suit. Plaintiff - respondent before me has in the plaint itself contended that the monthly rent was Rs.1,626/- per month and the premises were let out for the purpose of running Silk Mills. The tenancy commenced in 1969-70. It has been placed on record that the building in question is constructed much prior to the commencement of tenancy. A serious grievance is made that there are no amenities and it lacks even basic 5 facilities such as toilet. In such circumstances, to compare it with the newly constructed building in the area and apply prevalent market rate is improper, is the submission. Mr.Tripathi has justified the compensation and has urged that Rs.12/- per sft. would be reasonable and proper. 7. After giving my anxious consideration to the rival contentions, in my view, the larger controversy as to whether the judgement of Supreme Court permits imposition of condition of payment of compensation at the prevailing market rate for grant of stay of execution of decree for possession, need not be gone into in this case. Suffice it to observe that the conditions which are to be imposed should not be onerous, excessive and incapable of being complied with so also they should not non suit the Defendants and deprive them of the remedy or make it illusory when it is provided by the Statute. A balance 6 will have to be struck and what could be the reasonable compensation depends on facts of each case. In this context, the Hon’ble Supreme Court in the case reported in A.I.R. 2002 S.C. 1151 (V.K.Industries & Ors. Vs. MPEB Rampuri Jabalpur) has observed thus:- "5. Ordinarily, a money decree is not stayed unconditionally and the judgement - debtor would be put on terms. Even so, such conditions must be reasonable having regard to all relevant factors. Although ex parte decree was passed against the appellants, once it is set aside on the ground of non-service of suit summons the money decree did not exist for execution. It is no doubt true that in restoring a case the Court may impose conditions to deposit costs or the decretal amount or some portion thereof or to ask the defendant to give security but such 7 conditions should be reasonable and not harshly excessive. In the impugned order the appellants are put on terms to deposit a sum of Rs.2,00,000/- and to furnish a bank guarantee for the remaining suit claim within a period of two months. In our view, these terms are onerous, harsh and unreasonable in the facts and circumstances of the case and that too even before the trial of the suit on merits." 8. In the instant case, considering the nature of the user, year of construction, date of commencement of tenancy and the fact that the premises are more than four decades old, it would not be proper and fair to compare the same with the premises which have been constructed subsequently and let out on tenancy or licence basis. The security deposit and the prevalent licence fees/ compensation should not be straight 8 away applied to the subject premises. Taking an over all view of the matter and considering that the petitioner has faced a decree for possession so also the premises being used for commercial purpose, interest of justice would be sub-served if the petitioner is directed to pay a sum of Rs.15,000/- per month in addition to the existing Rent as a condition for stay of execution and implementation of the subject decree. The said payment to be made in the manner directed by the lower appellate court. In default, all consequences in law shall follow. The order of the lower appellate court stands substituted and instead of Rs.15/- per sft. per month, the petitioner would be required to pay Rs.15,000/- per month, in addition to the contractual rent and the liability of tax. Considering that the appeal is ripe for hearing and the suit is of 1997, the lower appellate court to endeavour and dispose of the same as expeditiously as possible and in any event by 9 31st January 2009. Order of the lower appellate court stands substituted accordingly. Petition disposed of in these terms. No costs. (S.C.Dharmadhikari, J)