ORDER

IA No.3 in CA No. 8017 of 2002

1. The application is allowed and the appeal dismissed as withdrawn in terms of the signed order.

CA No. 7478 of 2004 (Prayer for interim relief)

2. A decree for eviction passed against the appellant in favour of the respondents, in a suit based on landlord-tenant relationship is under appeal and the execution of the decree has been directed to remain stayed by this Court. The matter is listed for directions for appointing interim rate of mesne profits which the appellant should pay to the respondents as a condition for the operation of the stay.

3. Both the parties have filed material supported by affidavits to enable the Court to form a tentative opinion on the quantum of mesne profits. Site plans and photographs showing the location of the property have also been filed. The rate of rent at which the appellant has been enjoying the property in terms of the lease was Rs 2.11 p. per sq ft since 1968. The tenanted premises are non-residential bearing Shops Nos. 5 and 6, Bada Manzil, Bibijan Street, 67/69, Mohammed Ali Road, Mumbai. There is some dispute about the exact measurement of the area of the premises in occupation of the appellant tenant. However, for the purpose of this order, we would take the measurement of the premises at 625.25 sq ft on the ground floor and 113 sq ft for the loft/mezzanine floor. After hearing the learned counsel for the parties and taking into consideration the rates of rent at which the adjoining properties are being held by the tenants from the respective landlords and keeping in view the decision of this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.!, it is hereby directed as under:

(1) With effect from 30-7-2002, the date of the decree passed by the High Court, the appellant shall be liable to payor deposit for payment to the respondent landlords, an amount calculated @ Rs 65 per sq ft for the area on the ground floor and Rs 22 per sq ft for the area on the mezzanine floor.

(2) The first such deposit consisting of the amount calculated from the date of the decree up to 30-4-2005 shall be made on or before 31-8- 9 2005. The appellant may adjust, by way of deduction, the amount, if any, paid by them to the respondents for this period.

(3) With effect from 1-5-2005, the appellant shall continue to payor deposit for payment to the respondent landlords, an amount calculated at the same rate month by month and by the 15th day of that month.

(4) The respondents are permitted to move or pursue, if already filed, the application under Order 20 Rule 12 of the Code of Civil Procedure or to pursue such other remedy as may be available to them under the law for determination and recovery of the mesne profits which they would be entitled to recover from the appellant for the period between the date of institution of suit till the date of recovery of possession in the event of the present appeal being dismissed.

(5) The respondents shall file an undertaking on affidavit, making a statement that the amount recovered by the respondents in terms of this order shall be refunded or remain available for adjustment in terms of any directions which this Court may make at the end. If any amount becomes liable to be refunded consistently with the decision of this Court in the appeal, the respondents shall refund the same, within the time appointed by the Court for the purpose and the amount shall remain a charge on the suit property.

(6) Non-compliance with any of the terms stated in paras (1) to (3) above shall result in the order of stay passed by this Court being vacated and the respondents shall be free to execute the decree and recover possession from the appellant. Similarly, non-compliance by the respondents with condition (5) stated hereinabove would disentitle them to receive the amount and the amount liable to be paid by the appellant under this order shall be deposited in the Court and invested in fixed deposit from time to time.

4. We make it clear th