1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6080 OF 2008 Mr.Kishanlal Malhotra. ..Petitioner. V/s. Smt.Bakula Suresh Gandhi & Ors. ..Respondents. Mr.Piyush Shah for petitioner. Mr.P.K.Dhakephalkar i/b Shri Ajay S. Patil for Respondent No.1. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : AUGUST 30, 2008. DATE : AUGUST 30, 2008. DATE : AUGUST 30, 2008. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. 3. Mr.Dhakephalkar waives notice for Respondent No.1. 4. As short question is involved, Petition is taken up for hearing forthwith by consent. 5. This Writ Petition under Article 227 of the Constitution takes exception to the Judgment and 2 Order passed by the Small Causes Court at Bombay dated July 11, 2008 below Exh. 5 in Appeal No.622 of 2007. 6. By the impugned Judgment, the Appellate Court while admitting the Appeal granted interim relief to the Petitioner on condition that the Petitioner shall deposit the amount of Rs.2 Lakhs per months from the date of the Decree and continue to pay future compensation in respect of the suit premises at the rate of Rs.2 Lakhs per month on or before 10th of every English calender month. That direction is issued keeping in mind decision of the Apex Court amongst others Atmaram Properties Pvt.Ltd. Vs. Atmaram Properties Pvt.Ltd. Vs. Atmaram Properties Pvt.Ltd. Vs. Federal Motors Pvt.Ltd.(2001(1)RCR 1). Federal Motors Pvt.Ltd.(2001(1)RCR 1). Federal Motors Pvt.Ltd.(2001(1)RCR 1). 7. Indeed, no fault can be found with the view taken by the Appellate Court in the impugned Judgment that while admitting the Appeal the Court can put the Appellant/tenant against whom the decree of eviction to certain conditions. Besides, the Court is also entitled to decide on the quantum of compensation to be paid by the tenant to avail of the interim protection during the pendency of the appeal. No fault can be found with the Court for having relied on comparable instances of letting out of similar 3 premises in the neighbourhood for market rate of Rs.2,75,000/- per month and Rs.Three Lakhs per month respectively. Those comparable instances only provided guide-line to the Appellate Court to fix the compensation amount in that behalf. 8. However, the crucial question still required to be examined by the Appellate Court was whether the tenant had the capacity to pay such huge compensation amount especially when the tenant has asserted on affidavit that he is merely receiving pension in the sum of Rs.3000/- per month and has no other source of income. 9. Counsel for the Respondents requests that the Court may not record any reason in that behalf. As requested by the Counsel for the Respondents no reasons are recorded in support of the final order that I propose to pass in this Petition. 10. Accordingly, the Petition is disposed of on the following terms. (i) The impugned Judgment and Order dated 11th July, 2008 passed below Exh.5 in Appeal No.622 of 2007 is partly set aside to the 4 extent of imposing condition on the Petitioner to pay compensation amount specified therein. Instead, the Petitioner would continue to pay the monthly outgoings/compenstion in respect of suit premises and deposit in Court as per agreed monthly outgoings/compensation as was paid in the past. (ii) The Appellate Court is directed to expedite the hearing of the Appeal No.622 of 2007 as expeditiously as possible preferably by end of June, 2009, as High Court expedited case, to be listed as per its turn under that category. This arrangement is without prejudice to the rights and contention of the parties. All questions in the main matter are left open to be decided at the appropriate stage. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)