-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.7694 OF 200 WRIT PETITION NO.7694 OF 200 WRIT PETITION NO.7694 OF 2007 Mustanshir Kasam ali Vakharia, .. Petitioner Vs Ram veerbhadra Telkar & Anr .. Respondents Mr P.S.Dani, for the petitioner. Ms Vijaya K. Botlawar, for respondent nos 1 and 2. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. CORAM : D.B.Bhosale,J. DATE : 05.03.08. DATE : 05.03.08. DATE : 05.03.08. PC: PC: PC: 1. Heard learned counsel for the parties. 2. Rule. Ms.Botlawar, learned counsel, waives service for respondent nos 1 and 2. By consent, rule is made returnable forthwith and heard finally. 3. This petition is directed against an order dated 13.9.2007 passed by the trial Court on the application at Exhibit-19 of 2006 in R.A.E.& R.suit No.83/151 of 2005, making the said application filed by the respondents-defendants absolute. By that application, the respondents-defendants had sought permission to deposit arrears of rent from September,2001 at the rate of Rs.380/- per month with 15% interest without allowing the plaintiff to withdraw the same. The operative part -2- of the order by which the application was allowed reads thus:- "Notice/application Exhibit-19 is made absolute. The defendants are hereby allowed to deposit the arrears of rent in the court from September, 2001 till September, 2007 at the rate of Rs.380/- per month along with 15% interest on or before 15-10-2007 and to deposit further rent from October 2007 till the disposal of suit on or before 10th day of every succeeding month. Without prejudice to the rights and contentions of the parties, the plaintiff is hereby permitted to withdraw the amount from the court as and when deposited by the defendants. Mr Dani, learned counsel for the petitioner, invited my attention to the affidavit in reply to the said application dated 16.1.2007 and further affidavit dated 8.6.2007 and more particularly paragraphs 5 and 4 thereof respectively. From perusal of the relevant paragraphs of the affidavits it is clear that there was enhancement of the rent on 1.1.2004 and thereafter in October, 2006. This enhancement of the rent is by the principal landlord. The impugned order, shows that the court below did not take the aforementioned enhancement of the rent into consideration while allowing Exhibit-19 application. In the circumstances, in my opinion, the appropriate course would be to set aside the impugned order and direct the court below to consider the -3- application at Exhibit-19 afresh. Hence, I pass the following order. i) The order impugned dated 13.9.2007 is set aside. The trial Court shall consider the application at Exhibit-19 filed by the respondents-defendants afresh keeping in view the averments made in the aforesaid affidavits filed by the petitioner bringing on record further enhancement in the rent during pendency of the suit, as expeditiously as possible and preferably within a period of three months from the date of receipt of this order. All contentions of the parties are kept open. With these observations, the writ petition is disposed of. (D.B.Bhosale,J.) (D.B.Bhosale,J.) (D.B.Bhosale,J.)