Bombay High Court
Gopaldas S/O Bhikulalji Gupta vs Sanjay S/O Navalkishore Agrawal ... on 22 June, 2022
Bench: Manish Pitale
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 2235 OF 2021
Gopaldas s/o Bhikulalji Gupta -- Petitioner
Vs.
Sanjay s/o Navalkishore Agrawal and others -- Respondents
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. J.M. Gandhi, Advocate for Petitioner
Mr. N.R. Tekade, Advocate for Respondent No.1
CORAM : MANISH PITALE, J.
DATE : 22nd JUNE, 2022
Heard learned counsel for the parties.
2. By this writ petition, the petitioner i.e. the original
respondent has challenged order dated 12/11/2020, passed by
the Court of District Judge-5, Akola (hereinafter referred to as
Appellate Court), whereby interim stay of a decree passed by
the Court of Civil Judge (Senior Division), has been granted on
certain conditions. The petitioner contends that the conditions
imposed while granting interim stay in favour of the
respondents are extremely lenient and that the law with regard
to occupation charges that ought to be paid by an appellant,
who desires to continue in possession of the property, has been
completely ignored.
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3. This Court issued notice on 28/06/2021, for final
disposal in the present petition. The respondent No.1 entered
appearance through counsel. The respondent Nos. 2(i) & (ii),
despite service chose not to appear before this Court.
4. The short issue that arises for consideration in the
present petition is, as to whether the Appellate Court was
justified in granting stay of the order of the Trial Court on
conditions stated in paragraph No.3 of the operative portion of
the impugned order dated 12/11/2020.
5. The material placed on record shows that by a judgment
and decree dated 07/02/2020, the suit filed by the petitioner
was decreed and the respondents were directed to handover
possession of the suit property to the petitioner within two
months of the date of the decree.
6. The respondents filed appeal before the Appellate Court,
along with an application for grant of stay. By the impugned
order, the application was allowed and the decree was stayed on
the condition that the respondents would deposit cost amount
of Rs.21,390/- and a further amount of Rs.50,000/-, as a
security amount in the Appellate Court. It is an admitted
position that both these amounts have been deposited by the
respondents in the Appellate Court.
7. The learned counsel appearing for the petitioner
submitted that the Appellate Court failed to appreciate the law
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laid down by the Hon'ble Supreme Court in the case of M/s
Atmaram Properties (P) Ltd. Vs. Federal Motors (P.) Ltd.
reported in (2005) 1 SCC 705, reiterated in the case of State of
Maharashtra & Anr. Vs. M/s Super Max International (P) Ltd.
Reported in (2009) 9 SCC 772, as regards the question of the
liability of an appellant challenging such a decree to pay
occupation charges, in the backdrop of the fact that from the
date of the decree, the relationship between the parties is
severed.
8. It is further pointed out that the Appellate Court was
made aware of an admission given in cross-examination by
respondent No.2 that on the date when the cross-examination
was being conducted, even according to the respondent No.2,
the suit property would have fetched a monthly rent of
Rs.25,000/-. It is submitted that the Appellate Court failed to
take into consideration the aforesaid factor and all other
relevant factors for considering the question of payment of
occupation charges by the respondents, if they desired to
continue in possession of the suit property.
9. On the other hand, the learned counsel for the
respondent submitted that the condition imposed in the
impugned order was just and fair, considering the nature of the
decree passed by the Trial Court and the findings rendered in
the judgment of the Trial Court. It is submitted that the
respondents had already deposited the amounts as directed in
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the impugned order and that, therefore, this Court cannot
interfere with the same and that the appeal may be expedited.
10. This Court has considered the impugned order and the
material placed on record in the backdrop of the submissions
made by the rival parties. There is no dispute about the fact
that the respondents are facing a decree under which they are
required to handover possession of the suit property to the
petitioner. The effect of the said decree has been kept in
abeyance and it needs to be examined whether the Appellate
Court has arrived at a just and fair finding while giving
direction contained in clause No.3 of the operative portion of
the impugned order dated 12/11/2020.
11. A perusal of the same shows that the respondents have
been directed to deposit a paltry sum of Rs.50,000/- and that
too as a security amount over and above amount of
Rs.21,390/-. This Court is of the opinion that for the
respondents to be able to continue to enjoy the possession of
the suit property, appropriate conditions towards occupation
charges ought to have been imposed in the light of law laid
down by the Hon'ble Supreme Court in the aforementioned
judgments. It is expected that the quantum of occupation
charges be determined on the basis of material that may be
placed on record by the parties. In this case, an indicator could
be the admission given in cross-examination by respondent
No.2 that the suit property would have fetched rent of about
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Rs.25,000/- per month even at the time when the said
respondent was being cross-examined.
12. Nonetheless, there is lack of material before this Court
or that even before the Appellate Court to determine the
quantum of occupation charges. By considering the aforesaid
admission and the fact that the suit property is a flat situated in
the city of Akola, this Court is of the opinion that the
occupation charges to the extent of Rs.15,000/- per month
ought to be paid by the respondents for enjoying an interim
order of stay of the decree in their favour.
13. Accordingly, the writ petition is partly allowed.
14. The impugned order is modified, to the extent that in
addition to conditions imposed in clause No.3 of the
impugned order dated 12/11/2020, for grant of stay, in favour
of respondents, it is further directed that the respondents shall
pay amount of Rs.15,000/- per month towards occupation
charges to the appellant from the date of the decree passed by
the Trial Court, during pendency of the appeal before the
Appellate Court.
15. The decree was passed against respondents on
07/02/2020 and hence, it is found that they would be liable to
pay the aforesaid monthly amount towards occupation charges
from February, 2020. Accordingly, the respondents are directed
to deposit arrears of occupation charges @15,000/- per month
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from February 2020, till June, 2022, within a period of two
months from today before the Appellate Court.
16. The respondents are further directed to deposit the
amount of Rs.15,000/- per month towards occupation charges
from July, 2022, before the 7th day of each month, in the
Appellate Court.
17. The petitioner will be entitled to withdraw the amount
of arrears of occupation charges directed to be deposited by the
respondents.
18. The petitioner is also permitted to withdraw the
monthly amount towards occupation charges upon the same
being deposited by the respondents.
19. It is made clear that if the respondents fail to deposit the
aforesaid amount of arrears within the stipulated period of time
or there are two consecutive defaults on the part of the
respondents in depositing the amount towards monthly
occupation charges from July, 2022, onwards, the interim order
granted by the Appellate Court shall stand vacated.
20. The writ petition is disposed of in above terms.
JUDGE
Digitally signed by:MILIND
P DESHPANDE
Signing Date:24.06.2022
18:37
MP Deshpande
