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Bombay High Court
Dilsherkhan Bikankhan vs Sabhajit Ramjas Pande (Deceased) Thr. ... on 15 December, 2025
ANANT
KRISHNA
26.IA.1707.2023 C.doc
NAIK IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by CIVIL APPELLATE JURISDICTION
ANANT KRISHNA
NAIK
Date: 2025.12.16
15:41:20 +0530 INTERIM APPLICATION NO. 3052 OF 2025
(for Restoration - Not on board taken on board)
WITH
INTERIM APPLICATION NO. 17074 OF 2023
IN
FIRST APPEAL NO. 1102 OF 2023
Dilsherkhan Bikankhan ...Applicant/Appellant.
Versus
Sabhajit Ramjas Pande
(since deceased) through LRs & Ors. ...Respondents.
****
Mr. A. A. Sapre a/w. Adv. R. D. Saple for Applicant/Appellant.
Mr. Anand Pande for Respondents.
****
CORAM : M. M. SATHAYE, J.
DATED : 15th DECEMBER 2025
P.C.:
1. Heard learned Counsel for the parties.
2. At the outset it is pointed out by learned Counsel for the Applicant
that while restoring the First Appeal under the earlier order dated
17/04/2025 passed in IA/3052/2025, apparently IA/17074/2023 (for stay)
is not restored. Considering that the Appeal was restored after hearing both
the sides, IA/17074/2023 is restored today.
3. IA/17074/2023 is pressed by the Applicant because the
Respondent/Plaintiff has filed execution application, thereby seeking
possession of the suit premises.
26.IA.1707.2023 C.doc
4. The Applicant is the Defendant in S. C. Suit No. 9223 of 1995 filed by
the Respondents for recovery of possession based on title. Shop No. G-14
(Old Shop No. 2) situated at Bharat Lokhand Bazar, Ahmand Umar Mill
Compound, M. S. Ali Road, Two Tank, Bombay-400008 is the suit premises.
The Trial Court, after appreciation of the evidence, under the impugned
judgment and decree dated 18/04/2023, has decreed the suit, thereby
directing the Applicant/Appellant to put the Respondents/Plaintiffs in
possession of the suit premises.
5. Learned Counsel for the Respondents has pointed out that present
Appellant had filed RAD Suit No. 2063 of 1992 at Small Causes Court at
Mumbai seeking to assert tenancy right. He submits that admittedly the said
suit was dismissed and an appeal preferred over the dismissal, has also been
dismissed. He therefore submits that the tenancy claim of the Appellant has
been negated by the Court of the competent jurisdiction. It is further pointed
out that Respondents have filed Suit No. 7936 of 1992 u/s. 6 of the Specific
Reliefs Act seeking possession on the ground of prior possession. This Suit
was dismissed and the writ petition filed challenging the dismissal, was also
dismissed. Learned counsel for both the parties, confirm the aforesaid
situation about the said two suits.
6. Having said that, it is therefore a dispute between the present
Respondents claiming to be tenant (under surrender/transfer from the
erstwhile tenant) and present Appellant who is claims to have been
employed by the Respondents in the suit premises on monthly salary. The
Appellant is running a scrap business in the suit premises.
7. Learned Counsel for the Respondents is replying upon a copy of the
valuation report dated 15/11/2024 indicating that potential of the suit
26.IA.1707.2023 C.doc
premises is about Rs. 60,000/- per month as rental income. Learned Counsel
for the Applicant disputes the said position contending that it is execssive.
He submits that he may be permitted to produce material in support of his
case about correct market potential. He submits that as on today the
Appellant is only paying Rs.3,500/- per month.
8. Since, the Application is pressed for ad-interim relief, in my opinion,
an order on the ad-hoc basis is required to be passed. The suit premises are
situated in commercial area and it is a commercial shop of approximately
263 sq.ft. as per the valuation report. Learned Counsel for the Appellant
submits that as per plaint, exact area of the suit shop is not mentioned. Be
that as it may.
9. Considering the aforesaid submissions, the location of suit premises
and the fact that it is a commercial shop, and further considering that the
impugned decree directs the Appellant to hand over the possession on
finding (vide issue no. 2) that Appellant has trespassed over the suit
premises in October 1992, following order shall meet the ends of justice, for
the time being :
10. There shall be ad-interim stay to the impugned judgment and decree
dated 18.04.2023 passed in S.C. Suit No. 9223/95 by City Civil Court, Gr.
Mumbai, on following conditions :
(a) That the Applicant shall deposit in this Court arrears of earlier
rent @Rs. 3,500/- per month, upto date within a period of two weeks
from today.
(b) That the Applicant shall deposit in this Court an amount of
Rs.30,000/- per month starting from today, by 30 th of each month and
26.IA.1707.2023 C.doc
continue to do so till disposal of application, counting month from 15 th
of each month.
(c) The aforesaid figure of Rs.30,000/- per month is without
prejudice and an ad-hoc figure, which will be subject to final order
that may be passed in this Application, after hearing both sides and
after considering the material that may be produced on record in
support of the valuation.
11. The Respondents are at liberty to file affidavit-in-reply placing on
record the valuation report produced today. The Applicant will be at liberty
to file rejoinder. Both the parties are at liberty to place material on record in
support of their rival case about interim compensation.
12. Request is made by learned Counsel for the Respondents to permit
withdrawal of the amount deposited by the Applicant in the Trial Court
pursuant to the earlier orders. It is not disputed that the deposit was towards
earlier compensation of Rs.3,500/- per month. In that view of the matter, the
Respondents are at liberty to withdraw the amount deposited in the Trial
Court on production of this order.
(M. M. SATHAYE, J.)
