1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.8212 OF 2009 Salim Illahi and others ...Petitioners vs. Aziz Daud Sajan ...Respondent Mr.Madhav Jamdar for the petitioners None for the respondent CORAM :A.S.OKA,J. DATE : SEPTEMBER 29, 2009 P.C. 1 Heard learned counsel for the petitioners. The petitioners are the original plaintiffs-landlords and the respondent is the tenant. A decree for possession has been passed in favour of the petitioners against the respondent. The decree for possession relates to residential premises in respect of which agreed rent is Rs.82/- per month. An appeal was preferred by the respondent-tenant for challenging the decree of eviction. An application for stay was made by the respondent. The said application for stay was opposed by the petitioners by relying upon the decision of the Apex Court in case of Atma Ram Properties Pvt.Ltd. Vs.Federal Motors Pvt. Ltd. (2005 3 Bombay Cases Reporter 274). It was contended by the petitioners that the market rent in respect of the suit premises is Rs.10,000/- per month. By the impugned order, the Appellate Court granted stay to the execution 2 of decree of possession subject to the respondent depositing the compensation of Rs.1000/- per month from the date of filing the appeal till the final disposal of the appeal. As stated earlier, the agreed rent was Rs. 82/- per month. 2 The learned counsel for the petitioners submitted that the averment made in the reply filed to the stay application that the market rate of rent was around Rs. 10,000/- per month has not been denied by the respondent. He submitted that the petitioners had produced before the Appellate Court copies of leave and licence agreements relating to the similarly situated premises and the said documents have not been considered by the Appellate Court and in fact, the Appellate Court has erroneously proceeded on the footing that the petitioners were claiming compensation only at the rate of Rs.6,500/- per month. He pointed out that the compensation has been ordered to be paid only from the date of filing the appeal and not from the date of decree. He pointed out that the decision of the Apex Court in the case of Atma Ram Properties Pvt.Ltd (Supra) has been upheld later on by another decision of the Apex Court in case of State of Maharashtra and another vs. Supermax International Pvt.Ltd. And others (Civil Appeal No.5835 of 2009 decided on 27 th April 2009). 3 3 I have carefully considered the submissions. As observed by the Apex Court in the case of State of Maharashtra Vs. Supermax International Pvt.Ltd.(supra), while staying the execution of the decree for eviction, it is open for the Appellate Court to impose a condition of deposit of monthly amount at the rate higher than the contractual rent. The Apex Court has observed in paragraph 46 of its decision that while doing so, the court will have to exercise restraint and the court would not fix any excessive, fanciful or punitive amount. 4 Reliance placed on the leave and licence agreements relating to similarly situated premises will not help the petitioners. A leave and licence agreement cannot be the sole basis for determining market rent in respect of the suit premises as the considerations for execution of leave and licence agreement are different. Apart from the aforesaid facts, against the agreed rent of Rs.82/- per month, the compensation amount has been fixed at the rate of Rs.1,000/- per month by the Appellate Court. The amount fixed by the Appellate Court appears to be reasonable. Merely because the bald assertion in the reply filed to the stay application that the market rate of rent is Rs.10,000/- has not been denied by the respondent, the said assertion cannot be accepted as a gospel truth. 4 5 It is true that in terms of the decision of the Apex Court, the amount of compensation should have been made payable from the date of decree of the trial court. It will be open for the petitioner to apply to the Appellate Court for modification of the impugned order to the aforesaid extent of directing the tenant to deposit the amount of Rs.1000/- p.m from the date of decree and not from the date of presentation of the appeal. 6 Subject to what is observed above, no case is made out. Writ Petition is rejected. 7 Hearing of the appeal is expedited. The appeal shall be decided expeditiously and preferably within a period of six months from today. JUDGE