Yadav Tukaram Khade vs Kashibai Gyanba Bhavare And ...
2017 Latest Caselaw 6554 Bom

                                      1               WP - 11085-2016



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                      WRIT PETITION NO. 11085 OF 2016

Yadav S/o Tukaram Khade,
Age : 68 years, Occu.: Pensioner,
R/o. Sonar Galli, Akhada Balapur,
Tq. Kalamnuri and Dist. Hingoli                      .. Petitioner

     VS.

1. Smt. Kashibai W/o. Gyanba Bhavare
   Age - 75 years, Occu - Household,
   R/o. Akhada Balapur, Tq. Kalamnuri,
   Dist. Hingoli

2. Smt. Gayabai W/o Narayan Patil,
   Age - 71 years, Occu. Household,
   R/o. Mahur, Tq. Mahur,
   Dist. Nanded .. [DELETED]

3. Prayagabai W/o Sadashiv Kamble,
   Age - 69 years, Occu - Household,
   R/o Sawaleshwar, Tq. Umarkhed,
   Dist. Yeotmal .. [DELETED]

     - Respondents 2 and 3 deleted
     as per Court's order dated 09-03-2017 .. Respondents

                                   ----
Mr. V.P. Kadam, Advocate for the petitioner
Mr. U.B. Bilolikar, Advocate for the respondent no.1
                                   ----

                                    CORAM : SUNIL P. DESHMUKH, J.

DATE : 28-08-2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith. Heard learned

counsel for parties by consent, finally.

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2. The writ petition purports to pose a challenge to order

dated 08-07-2015 upon an application exhibit 5 in regular civil

appeal no. 47 of 2013, whereunder the petitioner has been directed

to deposit an amount of Rs.3000/- per month from the date of filing

of the suit till the date of said order within two weeks.

3. Regular civil suit no. 34 of 2011 had been filed by

present respondent no.1 for recovery of possession of suit property

having dimensions, as referred to in the plaint.

4. Various issues have been framed pursuant to the

pleadings of parties, inter-alia; whether respondent no.1 is owner of

property, whether present petitioner had purchased property from

father of respondent no.1, whether willful default has been proved

and whether despite notice, present petitioner has not paid the rent,

is proved by the plaintiff and whether the suit is bad for non-joinder

of necessary parties, whether suit property is really required by

plaintiff.

5. Suit had been decreed directing delivery of possession to

plaintiff by defendants 2 and 3, under judgment and decree dated

20-08-2013. As such, the matter is taken in appeal in regular civil

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appeal no. 47 of 2013 by present petitioner - defendant no.1. While

the appeal is pending for hearing, an application had been moved

exhibit 5 seeking stay to the decree.

6. Appellate court had framed points for determination

upon hearing exhibit 5 viz. whether appellant has made out prima

facie case, whether balance of convenience lies in his favour,

whether appellant would suffer irreparable loss. Appellate court

observed that the petitioner has prima facie case and also that

appellant - petitioner herein would suffer irreparable loss and also

found balance of convenience in his favour.

7. While deciding as aforesaid, appellate court has observed

that respondent no.1 claimed that the suit house had been rented to

petitioner at the rate of Rs.3000/- per month for a period of 11

months in 2005 and had continued to pay rent upto 2008 and had

defaulted such payment subsequently. Whereas, it is the case of the

present petitioner - defendant no.1, that the suit house had been

agreed to be purchased from father of respondent no.1 - plaintiff

and some earnest amount had been paid, however, as father of

respondent no.1 died, the sale deed could not come through.

Further, it has been referred to that respondent no.1 may not be

able to lay a legitimate claim to the property. Appellate court has

4 WP - 11085-2016

albeit observed that in respect of the agreement in issue, the present

petitioner has not been able to prove the agreement of sale.

8. The appellate court, however, considered that the

property is situtated in Balapur, Taluka Kalamnuri and it is a valuable

property. Till such time, the rights of the parties are decided to the

disputed property, it would be desirable that stay to execution of

decree be granted but while stay is required to be granted, a blanket

stay may not be possible. As such, directed to pay Rs. 3000/- per

month from the date of suit.

9. Learned counsel for the petitioner submits that the

issues, as had been cast before trial court, although suggest that the

property has been claimed to be rented out to the petitioner by

respondent no.1, yet, it cannot be said that any credible material

has been led to substantiate such a claim. He submits that he has

been put in possession of the property by father of respondent no.1

under an agreement of sale. There is no question of demand of rent.

While notice was issued by respondent no.1 for recovery of alleged

rent for the period 2008-2009, the same had been issued in 2009,

which had been denied by the petitioner. In the absence of any

material being placed forth, the order is unsustainable. Besides, he

submits that it is a onerous condition being placed on the petitioner,

5 WP - 11085-2016

as he is a pensioner and is not possessed of means to pay the huge

amount, as is directed under the impugned order.

10. On the other hand, learned counsel Mr. Bilolikar submits

that a just order has been passed. It is not a case that respondent

no.1 has been allowed to withdraw the amount directed to be

deposited. He submits that Rs.3000/- per month is not a big

amount at Akhada Balapur which is a business place. As such, by

condition under impugned order, balance is sought to be struck.

He, therefore, submits not to dabble with the just order passed.

11. Having heard learned counsel for the parties as

aforesaid, it appears that although, the suit had been filed referring

to that the property had been rented out to the present petitioner,

no claim towards arrears of rent or any compensation appears to

have been prayed for.

12. Further, it is being referred to by petitioner that property

is a house accommodation and is not a commercial place at Akhada

Balapur and further that Rs.3000/- is a huge amount and similar

property would not at all fetch rent at such high rate for residential

accommodation in Akhada Balapur. He further submits that

petitioner is a pensioner and amount being directed to be paid, is

6 WP - 11085-2016

onerous burden being cast on the petitioner which is outside paying

capacity of the petitioner.

13. Demand is for the period 2008-2009 and there is no

demand for subsequent period thereafter for money had been made

hitherto, nor does it appear that in the suit, plaintiff claims any

monetary relief. In the circumstances, a balance can be struck by

modifying order of appellate court by directing the petitioner to

deposit sum of Rs.36,000/- for the period, as demanded under the

notice of 2009.

14. The amount of Rs.36,000/- be deposited by petitioner

within a period of four (4) weeks from the date of receipt of writ of

this court with the appellate court.

15. As such clause 2(a) of the impugned order stands

modified, by directing the petitioner - defendant no.1 to deposit an

amount of Rs.36,000/- instead of direction of payment of rent at the

rate of Rs.3000/- per month from the date of suit till the date of the

order i.e. 08-07-2015.

16. The impugned order accordingly stands modified.

Hearing of Regular Civil Appeal be expedited and be disposed of as

7 WP - 11085-2016

early as possible, preferably within a period of six (6) months from

date of receipt of writ of this court.

17. Rule is made absolute as aforesaid.

[SUNIL P. DESHMUKH] JUDGE arp/