: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 PETITION NO. 8721 OF 2007 Mr.Jagdish Dwarkadas keswani ...Petitioners Versus Smt.Asha M.Gehi and anrs. ..Respondents WRIT PETITION NO. 395 OF 2008 Smt.Asha M.Gehi and anrs. ..Petitioenrs vs. Ashok Kotumal Gehi and ors. ..Respondents R.G.Ketkar i/by.Sucharita Patra Adv. for the petitioners. Mr.A.S.Khandeparkar, Adv. for the respondents. CORAM: S.C.DHARMADHIKARI, J. 24th January, 2008. P.C. P.C. P.C. : : : 1. The First petition is by the original appellant before the Small Causes Court and defendant in the Trail court suit for possession. 2. The trial court has decreed the suit of the landlord and directed the petitioner to handover :2: :2: :2: peaceful possession of the suit property. He is in appeal against the decree for possession. The appeal is admitted and pending. During the course of the appeal, Application for stay of the execution was preferred which has been granted on certain terms. The terms are questioned by the original defendant. 3. Mr.Ketkar, appearing for the petitioner contends that the terms imposed by the appellate court are harsh and excessive. The appellate court has with regard to the premises admeasuring 200 sq.ft in a dilapidated building constructed sometime in 1939-40 has directed the petitioner to pay Rs.15,000/- per month to the landlord only because there is a decree against the petitioner. The approach cannot be upheld, because even the Supreme Court’s decisions referred to, do not permit imposing such a condition. He submits that the Government registered valuer has valued the property who has estimated that the rent cannot be more than Rs.9500/- per month. That is even if the facts are stretched to such an extent that the premises are located in a commercial area. Looked it from any angle, the order under challenge deserves to be :3: :3: :3: quashed and set aside. 4. Mr.Ketkar appearing for the decree holder-plaintiff, submits that the decree is passed on the ground of unlawful subletting. Instead of handing over possession, now an Appeal is preferred to challenge the decree. In such circumstances, the petitioner cannot deprive the landlord of the fruits of the decree by paying a paltry rent. For this reason, the amount determined is at a lower rate and should be enhanced to atleast Rs.35,000/- per month. That is the value of the premises prevailing as of now. 5. Mr.Ketkar also relied upon some valuation report. In my view, it is not necessary to go into the aspect of valuation in great details. The challenge is to an interim order. In my view, the landlord cannot ask for the prevailing rates straightaway. In the peculiar facts of this case, and when further materials including valuation reports are yet to be placed on record, it would not be proper to enhance the quantum. The petition of the original plaintiff landlord is therefore dismissed. :4: :4: :4: 6. Insofar as the petitioner defendant is concerned, in my view, even the valuation that is placed before me would show that the premises could fetch Rs.9500/-. Without admitting the correctness of all the figures and observations, it can be said that considering the facts of this case and when the decree is on the ground of unlawful subletting, then, the condition imposed cannot be said to be onerous and excessive or incapable of being complied at all. The Small Causes court has applied the yardstick based upon the decision of the Supreme Court. It is not that the approach is unreasonable or arbitrary. 7. In such circumstances even the Writ petition of the defendant is without any merits and is accordingly dismissed. However, considering that the Appeal is directed against the decree which is passed on the ground of unlawful subletting, so also, the quantum that the defendant is obliged to pay, it would be desirable and in the interest of justice, if the Small Causes Court disposes off the Appeal on/or before 31.1.2009. Needless to state, that the landlord would :5: :5: :5: be permitted to withdraw the sums deposited in the lower appellate court/trial court on his furnishing an Undertaking that in the event, the Appeal succeeds, then, he would refund the sums withdrawn till date within the time stipulated by the lower appellate court and with interest thereon at the prevailing bank rate. Only upon an furnishing of this Undertaking that the amount should be permitted to be withdrawn. 8. At this stage, Mr.Ketkar after taking instructions from the landlord makes a statement that the landlord is not desirous of withdrawing the sums deposited in the Trial Court/lower appellate court but would be happy if this court directs Investment of the said sum in a Fixed Deposit in a nationalised bank initially for a period of 15 months and later on to be renewed as per the directions of the lower Appellate court. Accordingly, the lower Appellate court is directed to invest the sum with a nationalised bank initially for a period of fifteen months and subsequently to be renewed as per the directions of the lower appellate court. All amounts which are deposited in this court to be handed over to the lower appellate court/trial court :6: :6: :6: forthwith. Needless to state, that if there is a default committed in compliance of the order of the lower appellate court, then all consequences in law shall follow, inasmuch as, the stay against the execution of the decree would stand vacated. Insofar as, the merits are concerned, contentions of both sides are kept open. sd/- ********