1 WP 9527/2010 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9527 OF 2010 Esmail Abdul Husain Kathawala .. Petitioner V/s Shehab Sultan Bohra & Anr. .. Respondents Ms. Sonal i/b Zohair & Co. for the petitioner. Mr. Khan Javed Akhtar for the respondents. CORAM : D.G. KARNIK, J. DATE : 14TH FEBRUARY 2011 P.C. : 1. Heard both sides. 2. This petition is directed against an order dated 26th August 2010 passed by the appellate Bench of the Small Causes Court at Mumbai allowing the application filed by the respondents landlords and thereby directing the petitioner to pay compensation at the rate of Rs.15,000/- per month as a condition for stay of execution of the decree for eviction passed by the trial Court against the petitioner. 3. The respondents are the owners and landlords of a flat 2 WP 9527/2010 consisting of 2 bedrooms, a hall and a kitchen situated at Nagpada, Mumbai. According to the petitioner, the area of the flat is about 1000 sq. ft. while according to the respondents, it is 1250 sq.ft. That dispute however need not detain me in deciding this application. 4. A decree for eviction was passed by the trial Court on the ground of unlawful subletting. The petitioner filed an appeal bearing Appeal No. 52 of 2005 before the appellate Bench of the Small Causes Court. Ad-interim stay for execution of the decree was granted. The respondents thereafter made an application before the appellate Bench for directing the petitioner to pay compensation at the market rate on the basis of the decision of the Supreme Court in the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705. By the impugned order, the application has been allowed and the petitioner has been directed to pay Rs.15,000/- per month as compensation in addition to the contractual rent. That order is impugned in the present petition. 5. Learned counsel for the petitioner submitted that the order for stay of execution of the decree was passed after hearing the parties. As such, there was no occasion for the appellate Bench 3 WP 9527/2010 to vary the order of stay and direct the petitioner to pay compensation at the market rate. Copy of the roznama in Appeal No. 52 of 2005 produced before me discloses that on 3rd February 2005, when the appeal came up before the appellate Bench for the first time, it passed an order granting exparte stay for execution of the decree upto 7th February 2005 and further directed issuance of notice to the respondents. Stay was extended from time to time till the matter was posted on board on 24th March 2009. The roznama of 24th March 2009 reads as under: “Resumed. Both advocates present. Court busy in other matter. Adjourned for hearing. Stay granted earlier is extended till further order.” It is thus clear that the stay which was granted exparte on 3rd February 2005 was extended from time to time without hearing the parties and finally it was extended till further orders by order dated 24th September 2009. The roznama clearly discloses that the parties were not heard as the Court was busy in other matter. Thus, it cannot be said that the stay for 4 WP 9527/2010 execution of the decree for possession was granted by the appellate Bench after hearing the parties. 6. In the case of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (supra), the Supreme Court has laid down that while granting a stay for execution of the decree for possession, the Court is entitled to direct the tenant to pay compensation at the market rate which may be higher than the contractual rent. In my view, the present case is squarely covered by the decision of the Supreme Court in Atma Ram’s case. In the present case, the allegation of the respondents is that the petitioner has sublet the premises and the decree has been passed on that count. In such circumstances, the appellate Bench was justified in imposing a condition of depositing the compensation at the market rate as a condition for stay of the execution of the decree. I therefore see no error in the order of the appellate Bench. In any case, this is not a fit case to interfere in exercise of extraordinary jurisdiction under Article 227 of the Constitution of India. The writ petition is accordingly dismissed. However, time for payment of compensation fixed by the appellate Bench is extended by 4 weeks from today. In the event the amount of arrears of compensation is not deposited within 4 weeks hereof, the stay granted by the appellate Bench shall 5 WP 9527/2010 stand vacated and the decree can be executed forthwith. (D.G. KARNIK, J.)