2024:BHC-AS:5364 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION INTERIM APPLICATION NO.20278 OF 2022 IN CIVIL REVISION APPLICATION NO.280 OF 2022

1. Mrs. Anita Dominic D'Souza, (Since Deceased) through legal heirs

1(a) Brian Joseph D'Souza, Age: 63 years, Occ.: Retired, R/o. 1 Floor, Sea View Retreat, House No.62, Chimbai Road, Bandra (W), Mumbai-400 050.

1(b) Christine Isabel Syiemiong Age: 57 years, Occ.: Teacher, R/o, Ground Floor, Southern Side, Sea View Retreat, House No.62, Chimbai Road, Bandra (West), Mumbai-400 050, ...Applicant Versus Shaikh Abdul Rauf Age: 72 years, Occ.:Retired Residing in a northern side Flat on the Ground floor, Sew View Retreat, House No.62, Chimbai Road, Bandra (W), Mumbai- 400 050 … Respondent ____________________________________

Mr. Jaydeep Deo for Respondent in CRA/280/2022, and for Digitally signed Amol b Dy il iA pm rao ol Respondent in I. A. No.20278 of 2022.

Diliprao Nawale Date: Mr. Suresh Sabrad a/w. Mr. Amey Sawant for Applicant in Nawale 2024.02.03

16:46:46 +0530 CRA/280/2022, and for Applicant in I.A. No.20278/2022 ____________________________________

CORAM : RAJESH S. PATIL, J.

DATED : 18 JANUARY 2024 JUDGMENT :

1. This Interim Application is filed by Applicant/Landlord/Original Plaintiff, seeking a prayer to direct the tenant to deposit market rent in this Court pending the hearing and final disposal of the Civil Revision Application.

2. The suit filed by the Landlord for eviction was decreed by the Trial Court. Being aggrieved by the order of eviction tenant filed Appeal before Appellate Bench of the Court of Small Causes at Bombay. During the pendency of the Appeal before the Appellate Bench, the tenant was directed to deposit market rent as per the ratio laid down by the Supreme Court in case of Atma Ram Properties Vs. Federal Motors, reported in (2005) 1 SCC 705. However, the Appellate Bench reversed the decree and set aside the eviction decree. Hence, Civil Revision Application is filed by Landlords in this Court u/s. 115 of CPC challenging the impugned judgment and order passed by the Appellate Bench of the Court of Small Causes.

3. The Civil Revision Application was “Admitted” on 29 June 2022 after hearing both the sides. Mr. Sabrad appearing for Landlord, submitted that the landlord has a good case on merits and hence he will succeed in the present Civil Revision Application at the time of hearing. Mr. Sabrad further submitted that the suit was filed on the ground of bonafide requirement and even though the decree was passed by the Trial Court, the Appellate Court has without considering the legal position, reversed the decree passed by the Trial Court. He therefore, contended that it is necessary that the tenant be directed to continue to deposit market rent before this Court. In support of his argument, he cited the Supreme Court judgment of Atmaram Properties (supra).

4. Mr. Jaydeep, responded to the submission made on behalf of Landlord, by raising fundamental objection to the argument, by submitting that the ratio of Atmaram Properties (supra), will not be applicable in the present proceeding, since there is no eviction decree passed against the tenant. The Civil Revision Application, is filed in this court by Landlord challenging the dismissal of suit filed for eviction. Mr. Deo, further submitted that condition cannot be imposed on tenant/Respondent, when the tenant has not come before this Court seeking stay to the execution of decree. Mr. Deo, relied upon the judgment of (a) Niyas Ahmad Khan V/s. Mahmood Rahmat Ullah Khan & Anr. reported in (2008) 7 SCC 539 (b) The State of Maharashtra V/s. Super Max International Pvt Ltd. reported in (2009) 9 SCC 772, to buttress his arguments.

Discussion and Conclusion :

5. After the Civil Revision Application filed by Landlord was admitted in this Court, the Landlord has filed this Interim Application, seeking direction to the Respondent/tenant to continue depositing market rent before this Court, as per ratio laid do