-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9422 of 2007 Mr.Mohd.Hanif ..Petitioner vs. 1. Smt.Sugarabai d/o late Mr.Abdul TRehman and anr. ..Respondents Shri Harinder Toor with Shri Vinod Prajapati i/b M/s Navdeep Vora and Associates for petitioner. Shri Lalit V.Jain for respondent no.1. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 29th February, 2008 29th February, 2008 29th February, 2008 P.C. P.C. P.C. 1. The petitioner is the original appellant before the Court of Small Causes at Mumbai. R.A.Decl.suit no.1456 of 2005 was filed by respondent no.1 against the petitioner and respondent no.2. That suit was decreed by the Trial Court. Therefore, an appeal was preferred by the petitioner/original defendant no.1 in which he applied for stay of the judgment and order dated 6th October, 2007 in the subject suit. 2. The Trial Court while decreeing the suit directed as under: "R.A.D.Suit No.1456 of 2005 is partly -2- decreed. The plaintiff Sugrabai d/i late Shri Abdul Rehman is hereby declared as tenant in respect of suit premises, Room No.15, First Floor, 44, Chandiwalla Building, Kazi Street, Null Bazar, Mumbai 3 She shall pay the rent of the suit premises and defendant no.2 who is landlord, shall issue rent receipt in her name. The plaintiff is reinstated in the suit premises within the month of this order. It is made clear that the defendant no.1 along with his family members is entitled to reside in the suit premises being heirs of original tenant Ismasil Giga and Abdul Rehman. The suit is hereby dismissed in respect of claim of permanent injunction. The parties to bear their own costs. -3- Decree be drawn accordingly. Pronounced in open court." Shri Toor appearing for the original appellant submits that in sofar as the declaration is concerned that is always subject to appeal and no question of staying the same arises. However, protection in so far as reinduction of respondent no.1/original plaintiff in the suit premises so also issuance of the rent receipt in her favour by the landlord should have been granted. The appeal is preferred against all such directions and the subject judgment. The appeal is pending. Once the appeal was admitted and is kept pending, then, merely because the lower Appellate Court felt that the Advocate misled it with regard to some stay granted in Writ Petition No.8015 of 2007 should not have influenced it to such an extent as to reject the said application. 3. Perusal of the order under challenge demonstrates that the only reason why the lower Appellate Court rejected the request of the present appellant is because it was misled by -4- the Advocate. The Advocate pointed out that this Court has granted some protection but there was no such direction of this Court. In such circumstances, on account of the conduct of the Advocate the application was dismissed. 4. In my view, considering that the premises consists of one room and that the relations between the petitioner and respondent no. 1 are strained, it would be fair, just and proper to direct that pending hearing and final disposal of the appeal, direction of the Trial Court to reinduct the first respondent in the suit premises shall remain stayed. Similarly, if any action is taken by the landlord pursuant to the decree of the Trial Court, then, the same would be subject to the outcome of the appeal. Thus, the direction to reinduct the first respondent in the suit premises is stayed subject to the condition that the petitioner does not alienate, encumber, part with possession, or create any third party rights in the suit premises. Considering that the litigation is between sister and brother, it would be just and proper if the lower Appellate Court takes up the appeal for hearing and final disposal of and dispose of the same by 31st July, 2008. Petition is -5- allowed in the above terms with no order as to costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)