IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1228 OF 2008 Pratap Machindra Tejale & Ors. ...Petitioners Versus Mahendra Ravji & Ors. ...Respondents ...... Mr.S.M.Kamble for Petitioners. Mr.Prantik Mujumdar for Respondents 2, 3, 5, 7, 8, 10, 14, 15, 19 & 22 to 25. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JULY 17, 2008. JULY 17, 2008. JULY 17, 2008. P.C. P.C. P.C. 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith by consent. Mr.Mujumdar waives notice for Respondents 2, 3, 5, 7, 8, 10, 14, 15, 19 and 22 to 25. It is agreed that rest of the Respondents are not contesting parties insofar as the issue that needs to be addressed in the present Petition. : 2 : 3. Accordingly, by consent, Petition is taken up for final disposal forthwith as it involves short question. 4. This Writ Petition under Article 227 of the Constitution takes exception to the Judgment and Order passed by the Small Causes Court at Mumbai dated 17th December 2007 below Exhibit 4 in Appeal No.666 of 2007. The order reads thus: "Order passed in Obst.Notice NO.2 of 2004 dt.11.9.2007 and decree passed in L.E.Suit No.155 of 1985 dt.15.7.2003 to the extent of appellants hereby stands on appellants’ depositing amount of Rs.3775/- p.m. from 11.9.2007. Said amount is to be deposited during the pendency of this appeal and said due amount is to be deposited on or before 10th of every next month. Arrears due as on this date are also to be deposited on or before 12th January, 2008. Amount so deposited allowed to be withdrawn by Respondent Nos.1 to 5 on giving undertaking to redeposit if ordered by the Court. If amount ordered is not deposited then stay automatically stands vacated." 5. The grievance of the Petitioners/obstructors is that the Appellate Court although was prima facie convinced about the merits : 3 : of the case for which appeal preferred by the Petitioners has been admitted, has imposed condition while granting interim relief which is on the face of it, unreasonable. According to the Petitioners, having regard to the nature of premises and the capacity of the Petitioners to pay, the amount fixed by the lower Court is staggering. The Petitioner No.1 has relied on his pay slip at page 117, which indicates that the net amount receivable by him per month is only Rs.4,358/- (Rupees Four Thousand Three Hundred Fifty-Eight). According to the said Petitioner, he has no other source of income. The grievance of the Petitioners is that this crucial aspect has been glossed over by the Court below while determining the fair compensation amount. Although there is force in this submission of the Counsel for the Petitioners, it does appear that this grievance was not made before the lower Court. Indeed, this is a crucial matter which ought to be considered by the Court before fixing reasonable compensation amount by way of interim arrangement. If the amount fixed by the Court is such that the party is unable to pay the same to protect his : 4 : possession it would result in denying remedy of appeal to such a party. 6. Thus understood, the impugned Judgment and Order is set-aside without expressing any final opinion on the merits of the contentions. Instead, the parties are relegated back to the Appellate Bench of Small Causes Court to reconsider the Application-Exhibit 4 on its own merits in accordance with law. 7. The Petitioners may file further affidavit before the lower Court if so advised and place on record materials to substantiate their stand. It will be open to the Respondents to counter the case made out by the Petitioners by filing reply affidavit. The lower Court shall consider all the materials on record and pass appropriate order while ensuring that fair opportunity is granted to both sides. 8. Petition is allowed. Impugned Judgment and Order is set-aside. Exhibit 4 in Appeal No.666 : 5 : of 2007 is restored to the file to be considered afresh on its own merits, keeping in mind the observations made in the earlier part of this order. 9. Parties to appear before the Appellate Bench of Small Causes Court on 11th August 2008 on which date, the Court may proceed with the hearing of the restored application or assign some other date as may be convenient to it while ensuring that the Application is finally disposed of not later than 31st October 2008. No order as to costs. A.M.KHANWILKAR, J.