:1: :1: :1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 3786 OF 2008 PETITION NO. 3786 OF 2008 PETITION NO. 3786 OF 2008 Shrikant V. Deshmukh and Ors. (since deceased) ..Petitioner V/s. Asmita Mogra Co-op Hsg.Soc Ltd ..Respondent ====== Mr.A.R.Mishra, Advocate for the petitioner. Mr.A.S.Khatri i/by.M/s.A.L.N.Khatri and Co. Advocate for the Respondents. CORAM: CORAM: CORAM: SMT.R.P.SONDURBALDOTA, J. SMT.R.P.SONDURBALDOTA, J. SMT.R.P.SONDURBALDOTA, J. DATED: DATED: DATED: 03rd July, 2008. 03rd July, 2008. 03rd July, 2008. P.C. P.C. P.C. : : : 1. Heard learned counsel for the parties. 2. Rule made returnable forthwith. Service waived. By consent taken up for hearing immediately. 3. This petition arises out of the order dated 2nd February, 2008 passed by the court of Small Causes at Bandra in Interim Notice No.579 of 2007 in R.A.E. Suit No.449 of 2001. By the impugned order, the :2: :2: :2: interim notice taken out by the petitioners, who is the original defendant no.1 seeking permission to deposit an amount of Rs.5,170.03/- alongwith interest thereon in the court together with the rent at the rate of Rs.11.25 per month from time to time. 4. Respondent no.1 is a Co-operative Housing Society. It has filed a suit being R.A.E.Suit No.449 of 2001 for recovery of possession of the premises in occupation of the petitioner i.e Room No.19, Chawl No.3, Sub-plot-7, Asmita Mogra Co-operative Housing Society, Mogra Village, Andheri (E), Mumbai-400 093. It is the case of respondent no.1 that the suit premises were let out to respondent no.2 who unlawfully let out the same to Shrikant Deshmukh (since deceased). The petitioners are the legal heirs of Shrikant Deshmukh. 5. At paragraph 16 of the plaint, respondent no.1 has contended that the tenant is in arrears of rent, municipal property taxes and permitted increases from 1st August, 1978 and total amount payable is of :3: :3: :3: Rs.5170.03/- calculated upto 31st December, 2000. In the same paragraph respondent no.1 seeks direction for deposit the said arrears of rent together with the future rent, municipal taxes and permitted increases every month. It further seeks leave to withdraw the amount as and when deposited, without prejudice to its rights and contentions in the proceedings. 6. Though respondent no.1 seeks such directions, when the petitioners offered to deposit the amount in the court, it objected to the same contending that the petitioner is not the tenant in respect of the suit premises. Mr.Khatri, learned counsel for respondent no.1 submits that there is further arrears of rent due and payable in respect of the premises from the original tenant. 6. Since a direction is sought by respondent no.1 itself for deposit of the amount and payment of rent, there is no reason for it to oppose the application. In view of the fact that the offer of deposit is as per the demand made in the plaint, the petitioners can be allowed to deposit the amount without prejudice to :4: :4: :4: rights and contentions raised in the proceedings by respondent no.1 and also without prejudice to the rights and contentions as regards the claim against respondent no.2, the original tenant. 7. In the circumstances, the petition is allowed. The impugned order dated 2.2.2008 is set aside. Interim Notice No.574 of 2007 is allowed. It is clarified that this order is without prejudice to the rights and contentions of respondent no.1 raised in the proceedings including the mesne profits and also to claim and recover any amount, payable to it from the original tenant. On the application of Mr.Khatri, liberty is granted to respondent no.1 to withdraw the amount as and when deposited. sd/- (JUDGE)