Bombay High Court
Gafoor Ali Hussein & Others vs Ram Mahadik & Others on 5 March, 1998
Equivalent citations: 1998(5)BOMCR685, (1999)3BOMLR468
Author: D.K.Trivedi
Bench: D.K. Trivedi
ORDER D.K.Trivedi, J.
1. Heard the respective Counsel for the parties.
The applicants original defendants have challenged the judgment and decree passed by the learned Judge, City Civil Court, Bombay dated 24-12-1997 passed in Suit No. 3399 of 1983 filed by the respondents plaintiffs and the First Appeal is admitted as per order dated 16-2-1998.
2. In this application the petitioners have prayed for order of injunction restraining the opponents, their agents from disturbing or interfering in any manner in respect of the use and occupation of the applicants in respect of the suit shed. In view of the decree the applicants-defendants are directed to hand over possession of the suit premises in favour of the plaintiffs.
3. The Trustees of the Nagarik Sahayya Kendra, a registered Public Trust have instituted a suit in the month of April, 1983 against the applicants defendants and sought for possession of the suit premises on the ground that the applicants defendants have trespassed over the property. On behalf of opponents plaintiffs and affidavit in reply is filed by the Trustees and Secretary of the Trust giving details about filing a proceeding for recovery of possession from the defendants and opposed the prayer of stay as prayed for by the applicants and prayed for dismissal of the application.
4. The suit for possession filed by the plaintiffs in the year 1983 is decided by the trial Court by accepting the case put forward by the plaintiffs and the suit of the plaintiffs is decreed directed the applicants defendants to hand over possession of the suit since shed. During the pendency of the suit since 1983 till disposal of the suit the petitioner defendants are in possession of the property and the appeal filed by the petitioner appellants is admitted and pending for final hearing.
5. During the pendency of the appeal, the prayer for stay of the execution of the decree is required to be granted to protect the possession and accordingly after considering the submissions of the respective Counsel am inclined to protect the petitioners in respect of possession of the suit property. The plaintiff Trust is running a school. It is the case of the plaintiff that the appellants defendants have trespassed over the property and the trial Court has accepted the case of the plaintiffs. The plaintiffs have in the plaint prayed for certain reliefs for seeking possession etc. As per prayer Clause (c) the plaintiff has prayed that the defendants be directed to pay to the plaintiffs an amount of Rs. 1,500/- per month as and by way of compensation for use of a part of Mid Day Shelter from May, 1993. The trial Court while decreeing the suit has granted decree only in terms of prayer Clauses (a) and (b). Considering the fact that when the plaintiffs have filed suit for possession and also prayed for compensation at the rate of Rs. 1,500/- per month and while decreeing the suit the prayer for compensation was not granted. The petitioners defendants are running a business in the suit premises and paying and depositing Rs. 300/- per month as per the order of the trial Court.
6. Accordingly in the interest of justice, to protect the petitioners in respect of possession of the suit premises, it would be in the fitness of thing to direct the petitioners defendants to deposit Rs. 1,200/- per month over and above Rs. 300/- per month which the petitioners are depositing in the trial Court. Such payment (Rs. 1,200/- plus Rs. 300/-) is to be deposited in the trial Court on or before 10th of each month. The amount of Rs. 1,200/- is to be paid from 1-3-1998. The respondent plaintiff Trust is at liberty to withdraw the said amount. Accordingly the stay of execution of the decree is granted on the above terms.
7. As the plaintiff Trust has filed a suit for possession in the year 1983 and the plaintiff Trust is running a school, it will be in the fitness of thing to expedite the hearing of the appeal. Accordingly the printing is dispensed with. The appellant is directed to prepare the paper-book and submit before this Court on or before 30.6.1998. Liberty in favour of the respondent Trust to move the Court for fixing early date of hearing. Accordingly the application is allowed in the above terms with no order as to costs.
8. Application allowed.