1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3722 OF 2009 Shekhar Narayan Shetty .. Petitioner versus Madhavlal Narayanlal Pittie & Ors. .. Respondents Mr.Vivek Kantawalal i/by Mr.Vivek Kantawala for the petitioner. Mr.Mustafa Doctor with Ms.D.A.Chapgar i/by Mr.D.J.Kamdin & Co for respondent No.1. CORAM : A.S.OKA, J. DATE : 8th September 2009. P.C: . By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged the impugned judgment and order dated 7th February 2009. The premises subject matter of dispute is a room in flat No.E-22 situated on the 3rd floor of the building Shivlal Motilal Mansion at Belasis road, Mumbai 400 008. The 1st respondent filed a suit for eviction against the petitioner and the 2nd respondent. The petitioner was impleaded as the 2nd defendant. It is alleged that the original tenant (defendant Nos.1 and 1A) have inducted the petitioner as unlawful occupant. The trial Court passed a decree for possession against the petitioner and the original tenants. The decree was passed on the ground that the original tenants have unlawfully sublet the suit premises to the petitioner. An appeal was 2 preferred by the petitioner before the Appellate Bench of the Court of Small Causes for challenging the decree of eviction. In the said appeal an application for stay of execution of the decree for possession was taken out by the petitioner. By the impugned judgment and order, the said application for stay was allowed subject to condition of the petitioner depositing the arrears of compensation at the rate of Rs.5,000/- per month from the date of the decree till the date of the said order. The stay was granted subject to further condition that the petitioner will continue to deposit the sum of Rs. 5,000/- per month from February 2009 till the final disposal of the appeal. 2. The learned counsel appearing for the petitioner submitted that as a condition for grant of stay, the petitioner could have been ordered to deposit only a reasonable amount by way of compensation. He submitted that the carpet area of the suit premises is only 162 sq.ft. He stated that the suit premises forms part of a flat. He pointed out that suit premises has a common toilet block. He submitted that the suit premises are residential premises. He pointed out that the suit premises are situated in a building which is very old. He invited my attention to the report of M/s.K.C.Gandhi and Company, architects and valuers relied upon by the 1st respondent. He submitted that the instances relied upon by the valuer for arriving at the market rate of rent are not at all in respect comparable premises. He submitted that the amount of Rs.5,000/- per month fixed by the Appellate Court is punutive in nature. He submitted that the Appellate Bench of the 3 Court of Small Causes has not taken into consideration various factors which are required to be considered as per the judgment and order dated 16th June 2008 passed in Writ Petition No.3332 of 2008. He, therefore, submitted that the impugned order be quashed and set aside on the ground that the same is perverse. 3. The learned counsel appearing for the 1st respondent submitted that the petitioner has been held to be a sub-tenant. The learned counsel submitted that the petitioner is not using the suit premises strictly for residential use in the sense that the room is being allowed to be occupied by employees of the petitioner who are working in the restaurant and bar of the petitioner. The learned counsel pointed out that the amount of Rs.5,000/- per month fixed by the Appellate Court is less than the market rate suggested by the valuer. It is submitted that no interference is called for in the discretionary order passed by the Appellate Court. 4. I have carefully considered the submissions. In view of the decision of the Apex Court in the case of Atmaram Properties Pvt Ltd Vs. Federal Matters Pvt Ltd [(2005) 1 Supreme Court Cases 705], while granting stay to the execution of a decree for eviction, the Appellate Court can impose a condition of deposit of reasonable amount by way of compensation from the date of the passing of decree for eviction. Therefore, the question to be considered is whether the amount fixed by the Appellate Court can be said 4 to be reasonable. It must be borne in mind that the finding of the trial Court is that the petitioner is an unauthorised sub-tenant in respect of suit premises. The trial Court while passing the decree has relied upon admission of the petitioner in the evidence that the petitioner has taken suit premises for accommodating his hotel staff. It will be necessary to refer to the valuation report of M/s.K.C.Gandhi and Company, registered valuers and architects. In the report it is stated that the building in which suit premises are situated is at a distance of two minutes walk from Mumbai Central Railway Station. He has observed that looking to the location of the building, the same is a prime and prominent property in the locality. All facilities are available in the vicinity. He has observed that the building is situated on plot having Belasis Road on north and Lamington Road on the west. He has stated that thought the building is an old load bearing structure, the same has been repaired from time to time by the repair board. The valuer has noted that the suit premises is one room in a flat consisting of four rooms. The said four rooms are connected by a common passage and there is a common toilet block which is accessible from the passage. He has noted that the area of the suit premises is 162 sq.ft (carpet area). In paragraph 6 of the report, he has considered large number of transactions relating to premises in the buildings in the vicinity of the suit premises. After considering the fact that the building is an old building and the suit premises are being used as residential premises, valuer opined that the rent at the market rate will be Rs.7,290/- per month. After considering the said report, 5 the compensation at the rate of Rs.5,000/- has been fixed from the date of the decree. 5. As stated earlier, the petitioner is held to be unlawful sub-tenant in the suit premises. Moreover, the petitioner is the owner of a restaurant and bar and is using the suit premises for accommodating his staff members in the restaurant and bar. Considering the aforesaid aspects, the compensation amount fixed by the Appellate Court is certainly reasonable. No interference can be made in extra-ordinary jurisdiction of this Court under Article 227 of the Constitution of India. The petition is, therefore, rejected. 6. On the prayer made by the learned counsel appearing for the petitioner, ad-interim relief granted earlier will continue to operate for a period of 12 weeks from today. (A.S.OKA,J)