Important Point – Appellate Bench of the Small Causes Court was entitled to take into consideration amongst other things the monetary benefit that the Petitioners were deriving out of the structures and sheds.

1. Rule. With the consent of the Learned Counsel for the parties made returnable forthwith and heard.

2. The Writ Jurisdiction of this Court is invoked against the order dated 18-3-2017 passed by the Appellate Bench of the Small Causes Court on the application Exhibit 7 filed by the Petitioners/original Appellants in Appeal No.305 of 2016 filed by the Petitioners before the Appellate Bench of the Small Causes Court, Mumbai. By the said order, the said application for stay pending the Appeal was allowed in terms of the operative part of the impugned order. The said operative part stipulates that the Petitioners to pay interim compensation @ Rs.10,00,000/- (Ten Lakhs) per month to the Respondents and also to furnish undertakings as directed by the said operative part of the order.

3. The facts necessary for adjudication of the above Writ Petition can in a nutshell be stated thus:-

The Petitioners herein are the heirs of the original lessee one Hashambhai Jetha who was granted a lease of a plot of land admeasuring 3341 sq. yards by an Indenture of Lease dated 7-4-1941, along with the said plot the said Hashambhai Jetha was granted another plot by assignment admeasuring 109 sq.yards which is part of the same property. The schedule to the said Lease Deed i.e. Schedule A and B make a reference to the said two plot of lands. As indicated above the Petitioners are the heirs of the original lessee i.e. the said Hashambhai Jetha, whereas the Respondents are the heirs of the original lessor i.e. Bai Khatubai. The Petitioners are the Defendants in the Suit in question being R.A.E. Suit No.202/972 of 1973, whereas the Respondents are the original Plaintiffs who have filed the said Suit. The said Lease Deed contained a recital to the effect that in consideration of the expenses incurred by the tenant i.e. the said Hashambhai Jetha in erection and completion of the structures or sheds hereinafter mentioned and all the rent that the lessor i.e. the landlady has demised unto the tenant all that piece or parcel of land and the premises more particularly described in the first schedule. The lease also contains a recital in respect of the assignment that the lessor assigns unto the tenant all her right, title and interest in that piece or parcel of land and premises more particularly described in the second schedule and delineated on the plan. The said Lease Deed also contains a covenant that on the termination of the tenancy, the tenant to yield up the said premises with all the structures or sheds or buildings erected thereon meaning thereby that the tenant was required to hand over possession not only of the land but the structures, sheds and buildings erected thereon.

4. The landlady called upon the lessee to pay the arrears of the lease rent failing which the lease would stand terminated. Accordingly the tenancy of the said premises came to be terminated by the landlady by notice dated 7-7-1992. The landlady thereafter filed the Suit in question i.e. R.A.E. Suit No.202/972 of 1973 which was filed by one Resubai Chinoy against Hashambhai Jetha and Akbarali Jetha on the ground of default. For the purposes of the present Petition, suffice it would be to state that the said Suit came to be decreed by the Trial Court by judgment and order dated 9-3-2016. The Defendants i.e. the Petitioners herein aggrieved by the said decree filed an Appeal before the Appellate Bench of the Small Causes Court being Appeal No.304 of 2016. In the said Appeal, the Appellants i.e. the Petitioners herein filed Exhibit 7 for stay of the decree passed by the Trial Court. Since the issue was of granting stay having regard to the provisions of Order XLI Rule 5 of the Civil Procedure Code and having regard to the fact that the Appellate Court was likely to put the Appellants to terms in the matter of payment of interim compensation as a condition for stay of the