1 (WP6252.11) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6252 OF 2011 Mr. Vitthal Ramanna Shetty .... Petitioner. v/s Mr. Ashish Khemraj Sharma .... Respondent. Mr. Tejesh Dande for the Petitioner. Mr. K.P. Mali for the Respondent. CORAM: V. M. KANADE, J. DATE : 9TH AUGUST, 2011 P.C.: 1. Heard the learned Counsel for the Petitioner and the learned Counsel for the Respondent. 2. Petitioner is the original Defendant and Respondent is the original Plaintiff. For the sake of convenience, parties shall be referred to as “Plaintiff” and “Defendant”. 3. Plaintiff filed a suit for recovery of the suit premises on various grounds. In the said suit, an application was filed initially under Order VII Rule 11 by the Defendant and it was contended that the Plaintiff is the son of the original landlord. There was no relationship 2 (WP6252.11) of landlord and tenant between the Plaintiff and the Defendant. This application was dismissed. Thereafter, another application was filed under section 9A of the Civil Procedure Code and it was alleged that the Court did not have jurisdiction to hear and decide the suit. This application was also dismissed by the Trial Court and the order was confirmed by the Revisional Court. This order is being challenged by the Petitioner in this Petition. Petitioner is also challenging one other order which has been passed by the Trial Court in the application filed by the Plaintiff for fixing the interim compensation which was to be paid during pendency of the suit. Trial Court directed the Petitioner to deposit an amount of Rs 20,000/- per month during pendency of the suit. 4. It is submitted by the learned Counsel appearing on behalf of the Petitioner that so far as the first order is concerned, both the Courts had erred in dismissing the application under section 9A only on the ground that his earlier application under Order VII Rule 11 had been rejected and the application under section 9A was filed on the same grounds. Secondly, it is submitted that the Plaintiff in his plaint had stated that his father was missing since three years. It is submitted that, therefore, the Plaintiff was entitled to get benefit of presumption under section 107 and 108 of the Evidence Act. He, however, submitted that the Revisional Court observed that since 7 years had elapsed by the time application came up for hearing, the Plaintiff was not entitled to claim that presumption. It is submitted that since the son had filed suit and he was not the landlord, the Court 3 (WP6252.11) did not have jurisdiction to hear and decide the said suit. 5. So far as the submission of the Petitioner in respect of the first impugned order is concerned, the said submission cannot be accepted. Apart from the fact that application under Order VII Rule 11 has been dismissed by the Trial Court, the real grievance of the Petitioner is that the Plaintiff does not have right to sue since he is not the landlord. Both the courts below have held that this issue could be decided along with other issues in view of provisions of Order XIV Rule 2. In my view, there is no infirmity in the said order and, therefore, it is not necessary to interfere with the said order while exercising writ jurisdiction under Article 227 of the Constitution of India. 6. So far as the second impugned order directing the Petitioner to deposit an amount of Rs 20,000/- is concerned, it is submitted that part of the premises was sold by father of the Plaintiff and the hotel had to be closed by the Petitioner since tenantable repairs were not carried out by the landlord. It is submitted that the amount of Rs 20,000/- which is directed to be paid is, therefore, exorbitant. He submitted that the said amount may be reduced and that the Petitioner is willing to deposit the reasonable amount in the court. 7. On the other hand, the learned Counsel appearing on behalf of the Plaintiff submitted that the license fee which was agreed to be paid by the Petitioner was Rs 50,000/- per month. However, the Trial Court, after taking into consideration various facts of the case directed 4 (WP6252.11) that only Rs 20,000/- be paid. The area of the premises which is in possession is about 1600 sq.ft on the ground floor and 3000 sq. ft on the first floor which, according to the Petitioner, has been sold by the father of the Plaintiff and third party rights are created. 8. In my view, it is not necessary to interfere with the impugned order directing the Petitioner to pay Rs 20,000/- per month towards the compensation during pendency of the suit. It is an admitted position that the license fee which was agreed to be paid was Rs 50,000/- per month. In any case, Trial Court has made it clear that the Plaintiff would not be permitted to withdraw the said amount. There is, therefore, no infirmity in the said order. The submissions made by the Counsel for the Petitioner on this aspect cannot be accepted. 9. It is made clear that so far as the first impugned order is concerned, all contentions raised by the Petitioner and by the Respondent are kept open and the Trial Court may decide the said issue on merits while deciding other issues at the hearing of the suit. Trial Court shall not be influenced by any observations made by the Revisional Court while rejecting the Petitioner’s application so far as the first order is concerned. 10. Writ Petition is disposed of in the aforesaid terms. Hearing of the suit is expedited. [ V. M. KANADE, J.]