Ramkishor Ramprasad Sharma vs Kisangopal Tulshiramji Bhattad
2016 Latest Caselaw 3441 Bom

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                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     




                                                               
                              NAGPUR BENCH, NAGPUR.


     WRIT PETITION NO.5801 OF 2014




                                                              
     Ramkishor Ramprasad Sharma,
     Aged about 65 years, 
     Occupation - Hotel Business, 




                                                
     R/o 64, Jin Plots, Banosa, Tq.-
     Daryapur, District Amravati.
                              ig                                        ....       PETITIONER


                         VERSUS
                            
     Kisangopal Tulshiramji Bhattad,
     Aged about 47 years, 
      

     Occupation - Agriculturist, 
     R/o Thilori, Tq. Daryapur, District-
   



     Amravati.                                                          ....       RESPONDENT


     ______________________________________________________________





                  Shri S.J. Kadu, Advocate for the petitioner, 
                  Shri A.J. Gilda, Advocate for the respondent.
      ______________________________________________________________





                                   CORAM : Z.A. HAQ, J.

DATED : 28 th JUNE, 2016

ORAL JUDGMENT :

1. Heard Shri S.J. Kadu, Advocate for the petitioner and Shri

A.J. Gilda, Advocate for the respondent.

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2. Rule. Rule made returnable forthwith.

3. The decree for eviction and consequential reliefs is passed

against the petitioner. The petitioner has filed appeal before the

District Court which is pending.

4.

In the appeal, the petitioner had filed an application under

Order XLI Rule 5 of the Code of Civil Procedure on which an order is

passed staying the execution of the decree on condition that the

petitioner shall deposit occupation charges at the rate of Rs.5,000/- per

month with effect from 21-11-2012. The petitioner being aggrieved by

the directions given by the District Court to deposit occupation charges

of Rs.5,000/- per month with effect from 21-11-2012, has filed this

petition.

5. The learned Advocate for the respondent has relied on the

judgments given by the Hon'ble Supreme Court in the case of Pradeep

Kumar vs. Hajari Lal reported in (2008) 3 SCC 299 and in the case

of Mohammad Ahmad and Another vs. Atma Ram Chauhan and

others reported in (2011) 7 SCC 755, to urge that the order passed by

the District Court is proper and does not require any interference. The

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petitioner, to show his bonafides, of his volition has given demand

draft of Rs.50,000/- in the name of the respondent, to the learned

Advcoate respondent.

6. Considering the facts on the record, in my view, the

following order would sub-serve the interests of justice :

(i)

The execution of decree passed by the trial Court in Small

Causes Civil Suit No.4/2005 shall stand stayed till the

decision of appeal pending before the District Court, on

condition that the petitioner shall regularly pay Rs.1,300/-

(Rupees One Thousand Three Hundred) per month

towards occupation charges to the respondent till 10 th of

every month, starting from August, 2016.

(ii) The amount of Rs.50,000/- paid by the petitioner to the

respondent by the demand draft given to the learned

Advocate for the respondent shall be considered as

payment towards arrears of occupation charges till July,

2016.

(iii) If the respondent fails to accept the amount, the petitioner

shall deposit the amount regularly before the District

Court till 15th of every month.

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(iv) The petition is allowed in the above terms. The parties to

bear their own costs.

JUDGE

adgokar