MP - -1- WP9123_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 9123 OF 2010 Hamir Jaisingh Mulani .. Petitioner Versus Rekha Vipin Khakhar .. Respondent Mr. Uday Warunjikar with Ms. Usha Rahi for Petitioner. Mr. Satyan Vaishnava with Mr. R. D. Dave for Respondent. CORAM : B.R. GAVAI, J. MARCH 04, 2011 P. C. : Rule. Rule is made returnable forthwith by consent of the parties. 2. Heard by consent. The limited grievance raised in the present petition is that while passing the impugned order dated 30th October 2010, the learned Appellate Bench of Small Causes Court has not adjudicated the issue which was sought to be raised by the present petitioner in the application filed by him in the appeal which is pending. 3. In a suit filed by the respondent-plaintiff, a decree for eviction has been passed. Being aggrieved thereby, an appeal was filed by the present petitioner along with an application for stay to the effect and operation of the decree that was passed. Vide order dated 6th May 2010, the said application has been allowed and the decree passed in L. E. Suit No. 258 of 2007 is stayed subject to the condition that the MP - -2- WP9123_10 petitioner shall pay compensation of Rs. 25,000/- per month from filing of the suit till disposal of appeal. Vide the said order, the petitioner was directed to pay arrears within a period of three months from the date of this order and to deposit monthly compensation of Rs. 25,000/- on or before 10th of every month commencing from June 2010. Being aggrieved thereby, the writ petitions were filed by both the parties bearing writ petition No. 5810 of 2010 and writ petition No. 6423 of 2010. Both the petitions are dismissed by order dated 16th August 2010. 4. Thereafter, an application came to be filed by the present petitioner in the pending appeal seeking a clarification that the date of filing of the suit is 18th October 2007 and for some other reliefs. The said application is disposed of vide order dated 30th October 2010. 5. Shri Warunjikar, the learned Counsel for petitioner submits that the learned Judge has not decided the issue as prayed in the application and has, therefore, failed to exercise the jurisdiction vested in it. 6. There is a dispute between the parties as to what is the date of institution of suit. According to the petitioner-defendant, it is the date on which it was lodged in the Small Causes Court. Whereas, according to the respondent-plaintiff, it is the date on which it was initially filed in the City Civil Court, which in view of the judgment of the Full Bench of this Court was required to be transferred to Small Causes Court. 7. In that view of the matter, I find that the interests of justice would be subserved by directing the petitioner to deposit the arrears calculated on the basis that the date of institution of suit would be the MP - -3- WP9123_10 lodging of the same in the City Civil Court and further directing that the issue as to which is the date of the institution of the suit be an issue in the appeal. On depositing the said amount, the respondent-plaintiff would be at liberty to withdraw the same. The period for depositing the amount is extended by four weeks from today. It is made clear that in the event the learned Appellate Court finds that the date of institution of suits is the date of the institution of the same in the Small Causes Court and not in the City Civil Court, the learned Appellate Court would pass appropriate orders regarding the payment made for that period in its judgment and order. 8. The respondent - plaintiff would file an undertaking before the learned Trial Court that in the event the Appellate Court comes to the conclusion that any excess amount has been paid to the plaintiff, the same shall be refunded by the plaintiff to the petitioner-defendant, in the period prescribed by the Appellate Court. 9. Rule made absolute in the aforesaid terms with no order as to costs. (B.R. GAVAI, J)