1 abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1616 OF 2010 Miss Linda Flanagan & Anr. .. Petitioners V/s Desmond Sequeira .. Respondent Mr. G.S. Godbole i/b Legal Liaisons for the petitioners. Mr. V.R. Walavalkar i/b Mr. S.R. Bhalekar for the respondent. WITH WRIT PETITION NO. 1359 OF 2010 Desmond Sequeira .. Petitioner V/s Miss Linda Flanagan & Anr. .. Respondents Mr. V.R. Walavalkar i/b Mr. S.R. Bhalekar for the petitioners. Mr. G.S. Godbole for the respondent. CORAM : D.G. KARNIK, J. DATE : 24TH JUNE 2010 P.C. : 1. In Writ Petition No.1616 of 2010, issue Rule returnable forthwith. Learned counsel for the respondent waives service. Heard learned counsel for the appearing for the parties. 2 2. In Writ Petition No.1359 of 2010, Rule has already been issued. By consent, that petition is also taken up for hearing forthwith. 3. Writ Petition No. 1616 of 2010 has been filed by the tenants and the Writ Petition No. 1359 of 2010 has been filed by the landlord. Both the petitions are directed against the same order of the learned Appellate Bench of the Small Causes Court, Pune directing the tenants to pay compensation at the rate of Rs.10,000/- per month as a condition for stay of execution of the decree for possession. Being aggrieved, both landlord and tenant have filed these cross petitions. 4. In a suit for possession filed by the landlord, a decree of possession has been passed against the tenant. The tenant filed an appeal and made an application for for stay of execution of the decree pending decision of the appeal. The Appellate Court has stayed the execution of the decree subject to the tenant depositing compensation at the rate of 10,000/- per month. By Writ Petition No. 1359 of 2010, the landlord has prayed for enhancement of the amount of interim 3 compensation and by Writ Petition No. 1616 of 2010 the tenant has prayed for reduction of the interim compensation. 5. The suit premises are situated at Bandra, Mumbai. Initially about 941 sq. ft. premises were in possession of the tenant. During the pendency of the petition and after the decision of the Appellate Court fixing the compensation, the tenant has surrendered possession of a part of the premises to the landlord. The premises now in possession of the tenant admeasure about 575 sq.ft. 6. Interim compensation to be paid by the tenant during the pendency of an appeal must be reasonable. The nature of the premises, the area of the premises and the locality in which the premises are situated are required to be taken into consideration while fixing the interim compensation. Taking into consideration that the premises are situated in a distant suburb and also taking into consideration the fact that the tenant has surrendered possession of nearly half of the suit premises, it would be appropriate to fix the interim compensation at the rate of Rs.5,000/- per month which is about 50% of the compensation fixed by the lower Appellate Court. Hence, I pass the following order: 4 ORDER (i) The impugned order is set aside. The execution of the decree passed by the Trial Court is stayed till the decision of the appeal subject to the condition that the tenant pays to the landlord the interim compensation at the rate of Rs.10,000/- per month from the date of the decree till April 2010, i.e. till the tenant surrendered possession of 50% of the suit premises to the landlord. With effect from May 2010, the tenant shall pay to the landlord interim compensation at the rate of Rs. 5,000/- per month. In case the amount is deposited in the Court, the landlord is permitted to withdraw the same. The tenant is granted the time of 8 weeks to deposit. (ii) In the event of cumulative default of 3 months, the stay shall stand vacated and the landlord is free to execute the decree. (iii) Rule is made absolute to the extent indicated above. (D.G. KARNIK, J.)