Rajput R. Mishra (Since Deceased) ... vs Mrs. Lakhbeer Kaur (Since ...
2021 Latest Caselaw 15440 Bom

                                                                                   5-caf-2185-2019.doc




                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CIVIL APPELLATE JURISDICTION

                                             CIVIL APPLICATION NO.2185 OF 2019
                                                            IN
VISHAL                                          FIRST APPEAL NO.895 OF 2019
SUBHASH
PAREKAR               Rajput R. Mishra (since deceased)
Digitally signed by
VISHAL SUBHASH        Through legal heirs                                   ...Appellants/
PAREKAR
Date: 2021.10.29                                                            Ori. Defendants
10:21:31 +0530
                                vs.
                      Lakhbeer Kaur (since deceased)
                      Through legal heirs                                   ...Respondents/
                                                                            Ori. Plaintiffs.

                      Mr. Shreepad Murthy a/w. Ms. Apurva Mhatre, Clarissa Mirauda
                      i/b. Mr. Abhishek Patil, for the Appellants/Applicants.
                      Ms. Jennifer Michael i/b. Alisha Pinto, for Respondent Nos. 1 to 4.

                                                   CORAM :   N. J. JAMADAR, J.

                                                   DATE :    OCTOBER 27, 2021
                      P.C.:
                      CA.NO.2185 OF 2019:-

                      .       This is an application for stay to the execution, operation and

implementation of the judgment and decree of eviction passed by

learned Ad-hoc Judge, City Civil Court, Greater Mumbai in S.C.Suit

No. 4666 of 2008 dated 10th May, 2019 whereby the defendants/

appellants are declared to be unlawful occupants of 'Mishra Pan

Bhandar', admeasuring 8 x 10 sq.fts. situated at Juhu Tara Road,

CTS No. 944 and the defendants/appellants were directed to remove

the said structure within three months thereof.

2. The learned counsel for the appellants submitted that the

appellants have a strong case on merits. The execution of the decree

Vishal Parekar, P.A. ...1 5-caf-2185-2019.doc

during the pendency of the appeal would cause irreparable

prejudice to the appellants/applicants. Hence, the execution of the

decree be stayed.

3. In opposition to this, the learned counsel for respondents

/original plaintiffs resisted the prayer to stay the execution of the

decree. The learned counsel would further urge that the applicants/

defendants have been held to be in unlawful occupation of the suit

shop. The execution cannot be stayed unless the appellants

/defendants pay compensation towards unlawful occupation.

Reliance is placed on the judgment of the Supreme Court in the case

of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd.1.

4. While granting the ad-interim stay, this Court had granted

liberty to the applicants/respondents to fle affdavit/documents

indicating the rent/license fee which the suit property would fetch.

Affdavits have been fled on behalf of the applicants and

respondents.

5. The learned counsel for the applicants submits that the rent

would be in the range of Rs. 15,000/- to 20,000/- per month, at the

highest. In contrast, the learned counsel for the respondents

submitted that the respondents have received offers of rent in the

range of Rs.60,000/- to 65,000/- p.m. and one eatery has even

offered to pay Rs. 85,000/- per month for the said premises. It was 1 (2005) 1 Supreme Court Cases 705.

Vishal Parekar, P.A.                                                      ...2
                                                                 5-caf-2185-2019.doc

further submitted that the suit shop is located at a vantage point

and has huge business potential.

6. In the light of the area of the suit shop, the location thereof,

the business being carried out therefrom and potentiality of income

it would be expedient to direct the defendants to pay a sum of Rs.

25,000/- per month as compensation for unlawful occupation from

the date of the decree.

7. In view of the above, there shall be stay to the execution,

operation and implementation of the impugned decree till the fnal

decision of this appeal subject to the defendants depositing a sum of

Rs. 25,000/- per month as compensation for the occupation of the

suit premises from the date of the decree.

8. Since the decree was passed on 10th May, 2019 the appellants/

applicants are granted six months time to deposit the arrears of the

compensation.

9. The applicants shall continue to deposit the further

compensation at the said rate at quarterly intervals.

10. The application accordingly stands disposed of.

FA NO.895 OF 2019:-

11. Liberty to the respondents to seek expeditious hearing of the

appeal.

                                                (N. J. JAMADAR, J.)


Vishal Parekar, P.A.                                                           ...3