SURESH ATALRAI KESHWANI AND ANRversusMAHESH ATALRAI KESHWANI

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.10799 OF 2026


1. Mr. Suresh Atalrai Keswani
   Aged : 68 years,
   Occ. : Business, Indian Inhabitant,
   Residing at 2D, 2nd Floor,
   Pallonji Mansion, 43, Cuffe Parade,
   Mumbai – 400 050

2. Mrs. Shakuntala Suresh Keswani
   Aged : 65 years,
   Occ. : Housewife, Indian Inhabitant,
   Residing at 2D, 2nd Floor,
   Pallonji Mansion, 43, Cuffe Parade,
   Mumbai – 400 050                        ….   Petitioners.

              Vs.

Mr. Mahesh Atalrai Keswani
Aged : 56 years,
Occ. : Business, Indian Inhabitant,
Having Permanent Address at :
1D, Pallonji Mansion, 4, Cuffe Parade,
Mumbai – 400 005

And present having temporary
address for Service at :

C/o Gautam Bhachani, 703-704,
Golden Peak Society, Khar (West),
Mumbai – 400 052                           ….   Respondent


Sr. Adv. Vineet Naik a/w Adv. Sukand Kulkarni, Adv. Pranita Sabool, Adv.
Kartikeya Desai and Adv. Tanvi Parmar i/by Kartikeya & Associates for
Petitioners.

                                    1/22
501 WP 10799.26.doc                                             Dusane
Adv. Sanjay Jain a/w Adv. Nishant Vyas, Adv. Ishwar Nankani, Adv. Huzefa
Khokhawala & Adv. Kartik Gupta i/by M/s. Nankani & Associates for
Respondent.

                            CORAM         : ARUN R. PEDNEKER, J.
                            RESERVED ON   : 2nd September 2026
                            PRONOUNCED ON : 21st September 2026
P.C. :

1.       Heard the learned Counsel appearing for the parties.

2.       By the present Writ Petition, the Petitioners challenge the Order dated

23rd April 2026 passed by the learned Appellate Bench of the Small Causes

Court at Mumbai on an application filed by the Petitioners (Original

Defendants), being Exhibit ‘A’ in P. Appeal No. 6 of 2026 in L.E. Suit No.

150/188 of 2011.

3.       By the said Order, the learned Appellate Court has conditionally

allowed the Application (Exhibit-10) taken out by the Applicants (Original

Defendants) under Order XLI Rule 5 of the Code of Civil Procedure, 1908

(“CPC”), seeking stay of the execution of the eviction Decree dated 26 th

November 2024 passed in L.E. Suit No. 150/188 of 2011.

4.       The stay to the eviction decree has been granted subject to the

conditions set out in Clause 2 of the impugned Order dated 23rd April 2026.

5.       The Petitioners challenge the conditions imposed for granting stay to

the operation of the eviction Decree passed by the Trial Court, contending

that such conditions are onerous and excessive.
                                       2/22
501 WP 10799.26.doc                                                    Dusane
6.     The facts giving rise to the present Petition, in brief, are as under :

       The Plaintiff/ present Respondent filed L.E. Suit for eviction and

mesne profits pleading that Defendant No. 1, who is the Plaintiff’s elder

brother, is occupying the Suit Premises, being Flat No. 2D, admeasuring

approximately 4,000 sq. ft., situated on the 2nd Floor of Pallonji Mansion,

43, Cuffe Parade, Mumbai – 400 050 (hereinafter referred to as “the Suit

Premises”), as a gratuitous licensee.

.      It is the case of the Plaintiff that, sometime in or about 1982–1983, the

Plaintiff permitted Defendant No. 1 to use and occupy the Suit Premises for

residential purposes. Such occupation was purely permissive and was

granted without charging any compensation, rent or license fee. Accordingly,

Defendant No. 1 occupied the Suit Premises as a gratuitous licensee of the

Plaintiff.

7.     Defendant No. 1 is also a member of the housing society in which the

Suit Premises is situated. Defendant No. 1 owns Flat No. C on the Ground

Floor of C Wing, whereas Defendant No. 2 is the wife and Defendant no.1 is

also the owner of Flat No. 5B on the 5th Floor of B Wing.

8.     The Plaintiff called upon Defendant No. 1 to vacate the Suit Premises.

However, Defendant No. 1 failed and neglected to do so. Consequently, by a

letter dated 10th August 2011, the Plaintiff terminated the gratuitous licence

                                        3/22
501 WP 10799.26.doc                                                      Dusane
granted to Defendant No.1 and called upon him to vacate and hand over

peaceful possession of the Suit Premises to the Plaintiff.

9.     In response, Defendant No. 1 called upon the Plaintiff to establish and

produce proof of his ownership in respect of the Suit Premises, thereby

disputing and challenging the Plaintiff’s title thereto.

10.    In view of the continued occupation of the Suit Premises by

Defendant No. 1 and the dispute raised by him regarding the Plaintiff’s title,

the Plaintiff was constrained to institute the present Suit seeking, inter alia,

eviction of Defendant No. 1 from the Suit Premises and recovery of

possession thereof, along with the other reliefs claimed in the Suit.

11.    From the records, it appears that Defendant No. 1 and his family own

other flats in the building, while the Plaintiff holds one flat therein i.e. the

Suit property. It is the case of Defendant No.1 that he could not hold

multiple flats in the same society and, therefore, he purchased some flats in

the names of his wife, his son, and also the Plaintiff. According to Defendant

No.1, the entire consideration for the suit flat was paid by Defendant no.1.

12.    The remaining flats standing in the name of Defendant No. 1, namely

Flat Nos. 1D and 2D, were under requisition by the Government of

Maharashtra at the time of their purchase. Defendant No.1 had de-

requisitioned these flats on the representation that he did not own any

                                      4/22
501 WP 10799.26.doc                                                     Dusane
premises for his occupation. The said flats were subsequently de-

requisitioned by the State on the representation of Defendant no.1.

13.    The Trial Court, after considering the material on record, held that

Defendant Nos. 1 and 2 were gratuitous licensees occupying the suit

premises since 1982–1983 and that their gratuitous license was terminated

on 10 August 2011. The Trial Court further directed Defendant No. 1 to pay

mesne profits at the rate of Rs. 500/- per sq. ft. per month from the date of

the suit until actual recovery of possession. For quantification of the mesne

profits, the Trial Court directed that an application under Order XX, Rule

12C of the Code of Civil Procedure be filed.

14.    Aggrieved by the said judgment and decree, Defendant No. 1

preferred an Appeal before the Appellate Bench of the Small Causes Court.

Defendant No. 1 also filed an application at Exhibit 10 under Order XLI,

Rule 5 of the Code of Civil Procedure seeking a stay of the eviction decree.

15.    The said application was allowed, subject to the condition that the

Appellant shall deposit an amount of Rs. 3,00,000/- per month as interim

compensation in the Court, commencing from October 2011 up to April

2026, within a period of three months from the date of the order, and shall

also deposit the said amount every month thereafter, at the same rate,

towards interim compensation. The following conditions are imposed for the

                                    5/22
501 WP 10799.26.doc                                                   Dusane
stay of the decree :

       “(a) The appellants shall deposit Rs.3,00,000/- (Rs. Three
       Lakhs Only) per month as an interim compensation in the
       Court from October 2011, till the month of April 2026, within
       the period of three months from the date of the order, failing
       which this order of the stay stands vacated.

       (b) The appellants shall continue to deposit the monthly
       compensation at the same rate from May- 2026 onwards on or
       before 10th day of each succeeding month, till final disposal
       of the appeal.

       (c ) The amount deposited as an interim compensation shall
       be invested in any Nationalised Bank initially for a period of
       one year, if required would be extended.”

16.    Challenging the aforesaid conditions imposed for grant of stay of

eviction decree, the learned Senior Counsel, Mr. Vineet Naik for the

Petitioners submits that the Suit filed by the Petitioners seeking a declaration

of ownership is pending consideration. He has also produced the receipt

evidencing payment towards the purchase of the said suit flat. The learned

Counsel further submits that the Plaintiff was about 22 years of age at the

time of purchase of the flat and did not have the financial means to acquire

the same. According to the Petitioners, the flat was, in fact, purchased by the

Petitioner.

17.    In the facts and circumstances, the learned Counsel for the Petitioners

submits that the conditions imposed for grant of stay of eviction are onerous.

In support of his submissions, he relies upon the following judgments:-
                                     6/22
501 WP 10799.26.doc                                                    Dusane
       (i)     State of Maharashtra & Anr. V. Super Max International
               Pvt. Ltd. & Ors.1,

       (ii)    Lifestyle Equities Vs. Amazon Tech Inc,2

       (iii) Majbur Rehman Haji Isar Alam Siddhiqui Vs. K.T.
             Kubal & Co.3

18.    Per contra, learned counsel, Mr. Sanjay Jain for the Respondent

submits that the Petitioners have other flats in the same building where the

suit flat is situated and that the Share Certificate and the ownership

documents of the suit flat is in the name of the Respondent/Plaintiff. It is

further submitted that the Petitioner no.1/ Defendant No.1 had made various

representations to the State seeking de-requisition of the other properties,

wherein he has admitted that he had no other premises and that he was living

in the flat owned by the Respondent/Plaintiff. Thus, there is absolutely no

cloud on the title of the Plaintiff.

.      He further submits that the suit for eviction has been allowed in favour

of the Plaintiff. He further submits that the rentals of the suit premises are

more than Rs. 6,00,000/- per month; however, the Appellate Court has

granted only over Rs. 3,00,000/- per month and only from the date of the

suit. Learned counsel submits that the license was terminated in the year

2011 and that the compensation has to be paid from one month after the

1 (2009) 9 SCC 772,
2 2025 SCC OnLine SC 2153
3 (2017) (6) Bom. C.R. 382
                                       7/22
501 WP 10799.26.doc                                                   Dusane
termination of the license. He submits that the Appellate Court has been

more than fair to the Petitioner, and that this Court may not interfere with the

order passed by the learned Appellate Court.

19.    Learned counsel for the Respondent (Defendant) relies upon the

following judgments :

       (i)     M/s Atma Ram Properties (P) Ltd. V. M/s Federal
               Motors Pvt. Ltd.4

       (ii)    State of Maharashtra & Anr. Vs. Super Max
               International Pvt. Ltd. & Ors.5,

       (iii) Majbur Rehman Haji Israr Alam Siddhiqui Vs. K.T.
             Kubal & Co.6

       (iv) Safset Agencies Private Ltd. Vs. Riddhi Rahul Kumar
            Gosalia & Ors.7

       (v)     Cesil Charles Brako & Ors. V. Surekha Hanumant
               Tawade & Ors.8

       (vi) R. Rajagopal Reddy (Dead) by LRs. And Ors. s.
            Padmini Chandrashekharan (Dead) by LRs.9

20.     Having considered the rival submissions, the question that arises for

consideration is whether the conditions imposed for the grant of stay, of the

eviction decree, of a gratuitous licensee are onerous in the facts of the

present case. Admittedly, the suit filed by the Petitioner for a declaration of

4  (2005) 1 SCC 705.
5  AIR 2010 Supreme Court 722.
6  (2017) (6) Bom. C.R. 382,
7  (2024) SCC OnLine Bom. 3127.
8 (2018) SCC OnLine Bom. 14719,
9 (1995) 2 SCC 630.
                                     8/22
501 WP 10799.26.doc                                                    Dusane
ownership is pending consideration. There is a receipt produced on record by

the Petitioner, prima facie indicating that the Petitioner has made payment

for the suit premises. However, the Petitioner has also, in his

communications addressed to the State seeing de-requisition, of the flats in

the same building has admitted that he does not own any other premises. It

was on the basis of this submission of the Petitioner that the other flats of the

Petitioner in the Society were de-requisitioned by the State.

21.    The trial Court has held that the Petitioner is a gratuitous licensee and

has consequently passed the decree of eviction while the Appellate Court in

Appeal has granted stay of eviction subject to conditions as noted

hereinabove. The provisions of the Code of Civil Procedure, 1908,

governing the grant of stay of eviction by the Appellate Court is contained in

Order XLI Rule 5, which is reproduced hereinbelow for ready reference:

       “ORDER XLI :
       APPEALS FROM ORIGINAL DECREES

       1.      Form of appeal-What to accompany memorandum.- ……..
       2.      ….
       3.      ….
       4.      ….
       5.      Stay of proceedings and of execution

       5.      Stay by Appellate Court.- (1) An appeal shall not operate as a
       stay of proceedings under a decree or order appealed from except so
       far as the Appellate Court may order, nor shall execution of a decree
       be stayed by reason only of an appeal having been preferred from the
       decree; but the Appellate Court may for sufficient cause order stay of
       execution of such decree.

                                        9/22
501 WP 10799.26.doc                                                         Dusane
       [Explanation. An order by the Appellate Court for the stay of
       execution of the decree shall be effective from the date of the
       communication of such order to the Court of first instance, but an
       affidavit sworn by the appellant, based on his personal knowledge,
       stating that an order for the stay of execution of the decree has been
       made by the Appellate Court shall, pending the receipt from the
       Appellate Court of the order for the stay of execution or any order to
       the contrary, be acted upon by the Court of first instance.]

       (2)    Stay by Court which passed the decree. - Where an application
       is made for stay of execution of an appealable decree before the
       expiration of the time allowed for appealing therefrom, the Court
       which passed the decree may on sufficient cause being shown order
       the execution to be stayed.

       (3)     No order for stay of execution shall be made under sub-rule
       (1) or sub- rule (2) unless the Court making it is satisfied-

       (a)   that substantial loss may result to the party applying for stay of
       execution unless the order is made;

       and

       (b)    that the application has been made without unreasonable
       delay;

       (c)   that security has been given by the applicant for the due
       performance of such decree or order as may ultimately be binding
       upon him.

       (4)    [Subject to the provisions of sub-rule (3)], the Court may make
       an ex parte order for stay of execution pending the hearing of the
       application.

       [(5) Notwithstanding anything contained in the foregoing sub-
       rules, where the appellant fails to make the deposit or furnish the
       security specified in sub-rule (3) of rule 1, the Court shall not make
       an order staying the execution of the decree.]”

22.    Order XLI, Rule 5, Sub-Clause 2 enables the Appellate Court to grant

a stay of execution of an appealable decree upon sufficient cause being

shown. However, Sub-Rule 3 provides that no order for stay of execution
                                        10/22
501 WP 10799.26.doc                                                           Dusane
shall be made under Sub-Rule 1 or Sub-Rule 2 unless the Court making it is

satisfied that:

       a)      That substantial loss may result to a party applying for stay
               of execution unless the order is made;
       b)      that the application has been made without unreasonable
               delay and
       c)      that the security has been given by the Applicant for the
               due performance of such decree or order as may ultimately
               be binding upon him.


23     In the instant case, there is an eviction order passed against the

Petitioner, who is a gratuitous licensee holding over the premises after his

license was terminated. While considering the provisions of Order XV-A of

the CPC, this Court has held that Order XV-A applies to a gratuitous licensee

as well, and directions can be issued to deposit compensation during the

pendency of the suit. However, the compensation so deposited should not be

determined by applying the parameters laid down in Atma Ram Properties

(supra). In the instant case, this Court is dealing with a situation where the

Plaintiff has succeeded in the suit for eviction of gratuitous licensee. The suit

for eviction is summary in nature while the suit for declaration of title filed

by Defendant No. 1 is pending consideration.

24.    Clause 1 of Order 41 Rule 5 indicates that a stay may be granted for

                                       11/22
501 WP 10799.26.doc                                                     Dusane
sufficient cause. The Appellate Bench of the Small Causes Court, prima

facie, found that the appeal was pending for consideration, and that the right

of appeal is a statutory right, and that the dispossession of the Petitioners

would cause serious prejudice to their rights and thus the Appellate Court

found that the substantial loss would be caused to the Petitioner in the event

of stay not being granted.

25.    The submission of the Petitioner before the Appellate Bench was that

he is the owner of the suit premises and not a gratuitous licensee of the

Plaintiff. It was contended that the Petitioners were not in need of the suit

premises and had no genuine requirement to use the same for their residence.

It was further submitted that the Petitioners could not be expected to reside

in the suit premises at the mercy of the Plaintiff, who is the younger brother

of Petitioner no. 1.

26.    The Small Causes Court while granting eviction from licensed

premises does not, in fact, determine the title to the property. The Small

Causes Court has proceeded on the basis that the suit property stands in the

name of the Plaintiff, and, on that basis, it has held the Defendant to be a

gratuitous licensee of the Plaintiff. The enquiry before the Small Causes

Court is limited to that extent. Consequently, the direction to vacate the suit

premises has been issued on the basis of such finding.

                                    12/22
501 WP 10799.26.doc                                                   Dusane
27.    In the instant case, being a family matter, and the Petitioner being the

elder brother of the Plaintiff, it would be necessary to impose appropriate

conditions while granting the stay, particularly when a serious challenge to

the title of the suit premises is pending consideration before the Civil Court.

In this regard, it would be apposite to refer to the judgments of this Court

and the Supreme Court on the issue, including the various judgments cited

by the parties.

28.    In Atma Ram Properties (supra) the Supreme Court considered the

provisions of Order XLI Rule 5(3) of the Code of Civil Procedure, 1908.

The Court held that dispossession, during the pendency of an appeal, of a

party who is in possession would generally constitute substantial loss to the

party seeking stay within the meaning of Order XLI Rule 5(3) CPC.

29.    In Atma Ram Properties (supra), the Court was considering a case

concerning a licensee protected under the Delhi Rent Control Act, where an

order of eviction had been passed against the tenant on the ground of

subletting the premises. In the appeal, the question before the Court

concerned the conditions that could be imposed while granting stay under

Order XLI Rule 5 CPC.

30.    The Supreme Court held that the power to grant stay is discretionary

and flows from the jurisdiction conferred upon the Appellate Court. Such

                                     13/22
501 WP 10799.26.doc                                                   Dusane
jurisdiction is equitable in nature, and the Appellate Court is not ordinarily

required to grant an order of stay merely because an appeal has been

preferred and an application for stay has been made.

31.    An applicant seeking an order of stay must do equity while seeking

equity. Depending upon the facts and circumstances of each case, the

Appellate Court, while granting an order of stay, may impose such terms and

conditions as would ensure that the ends of justice are met and that the

interests of the party ultimately found to be successful in the appeal are

adequately protected.

32.    The Supreme Court in Atma Ram Properties (supra) also relied upon

the judgment of Southern Eastern Coalfields Ltd. Vs. State of Madhya

Pradesh10, wherein the Court held that where the orders passed at an interim

stage are reversed and in the event of the final decision going against the

party successful in securing the interim order in its favour, the successful

party at the end would be justified in demanding compensation and being

placed in the same situation in which it would have been had the interim

order not been passed against it. The Court thus opined that, while granting

an order of stay under Order 41, Rule 5 CPC, the Appellate Court does have

jurisdiction to put the party seeking the stay order on such terms as would

reasonably compensate the party successful at the end of the appeal, insofar
10 (2003) 8 SCC 648
                                    14/22
501 WP 10799.26.doc                                                  Dusane
as those proceedings are concerned.

       The Supreme Court in Atma Ram Properties (supra) at paragraphs 11

and 18 has held as under :

       “11. Under the general law, and in cases where the tenancy is
       governed only by the provisions of the Transfer of Property Act,
       1882, once the tenancy comes to an end by determination of lease
       under Section 111 of the Transfer of Property Act, the right of the
       tenant to continue in possession of the premises comes to an end and
       for any period thereafter, for which he continues to occupy the
       premises, he becomes liable to pay damages for use and occupation
       at the rate at which the landlord could have let out the premises on
       being vacated by the tenant. In the case of Chander Kali Bai³ the
       tenancy premises were situated in the State of Madhya Pradesh and
       the provisions of the M.P. Accommodation Control Act, 1961
       applied. The suit for eviction was filed on 8-3-1973 after serving a
       notice on the tenant terminating the contractual tenancy w.e.f. 31-12-
       1972. The suit came to be dismissed by the trial court but decreed in
       first appeal decided on 11-8-1975. One of the submissions made in
       this Court on behalf of the appellant tenant was that no damages
       from the date of termination of the contractual tenancy could be
       awarded; the damages could be awarded only from the date when an
       eviction decree was passed. This Court took into consideration the
       definition of tenant as contained in Section 2(i) of the M.P. Act
       which included "any person continuing in possession after the
       termination of his tenancy" but did not include "any person against
       whom any order or decree for eviction has been made". The Court,
       persuaded by the said definition, held that a person continuing in
       possession of the accommodation even after the termination of b his
       contractual tenancy is a tenant within the meaning of the M.P. Act
       and on such termination his possession does not become wrongful
       until and unless a decree for eviction is passed. However, the Court
       specifically ruled that the tenant continuing in possession even after
       the passing of the decree became a wrongful occupant of the
       accommodation. In conclusion the Court held the tenant was not
       liable to pay any damages or mesne profits for the period
       commencing from 1-1-1973 and ending on 10-8-1975 but he
       remained liable to pay damages or mesne profits from 11-8-1975
       until the delivery of the vacant possession of the accommodation.
       During the course of its decision this Court referred to a decision of
       the Madhya Pradesh High Court in Kikabhai Abdul Hussain v.
       Kamlakars wherein the High Court had held that if a person
                                        15/22
501 WP 10799.26.doc                                                             Dusane
       continues to be in occupation after the termination of the contractual
       tenancy then on the passing of the decree for eviction he becomes a
       wrongful occupant of the accommodation since the date of
       termination. This Court opined that what was held by the Madhya
       Pradesh High Court seemed to be a theory akin to the theory of
       "relation back" on the reasoning that on the passing of a decree for
       eviction, the tenant's possession would become unlawful not from
       the date of the decree but from the date of the termination of the
       contractual tenancy itself. It is noteworthy that this Court has not
       disapproved the decision of the Madhya Pradesh High Court in
       Kikabhai Abdul Hussain cases but distinguished it by observing that
       the law laid down in Kikabhai Abdul Hussain cases was not
       applicable to the case before it in view of the definition of "tenant"
       as contained in the M.P. Act and the provisions which came up for
       consideration of the High Court in Kikabhai Abdul Hussain cases
       were different.”

       18. That apart, it is to be noted that the appellate court while
       exercising jurisdiction under Order 41 Rule 5 of the Code did have
       power to put the appellant tenant on terms. The tenant having
       suffered an order for evict must comply and vacate the premises. His
       right of appeal is statutory but his prayer for grant of stay is dealt
       with in exercise of equitable discretionary jurisdiction of the
       appellate court. While ordering stay the appellate court has to be
       alive to the fact that it is depriving the successful landlord of the
       fruits of the decree and is postponing the execution of the order for
       eviction. There is every justification for the appellate court to put the
       appellant tenant on terms and direct the appellant to compensate the
       landlord by payment of a reasonable amount which is not necessarily
       the same as the contractual rate of rent. In Marshall Sons & Co. (I)
       Ltd. v. Sahi Oretrans (P) Ltd.9 this Court has held that once a decree
       for possession has been passed and execution is delayed depriving
       the judgment-creditor of the fruits of decree, it is necessary for the
       court to pass appropriate orders so that reasonable mesne profits
       which may be equivalent to the market rent is paid by a person who
       is holding over the property”.

33.      The Supreme Court in the case of Atma Ram Properties (supra) held

that if the tenancy is governed only by the provisions of the Transfer of

Property Act, 1882, once the tenancy comes to an end by determination of

the lease under Section 111 of the Transfer of Property Act, the tenant’s right
                                         16/22
501 WP 10799.26.doc                                                                Dusane
to continue in possession of the premises comes to an end, and for any

period thereafter during which he continues to occupy the premises, he

becomes liable to pay damages for use and occupation at the rate at which

the landlord could have let out the premises upon being vacated by the

tenant.

34.    The Court also held that the tenancy protected under the Rent Control

Act comes to an end on the date of the decree of the trial Court. However, if

the tenant continues in possession even after the passing of the decree, he

becomes a wrongful occupant of the accommodation and becomes liable to

pay mesne profits from the date of the decree until he delivers vacant

possession.

35.    It is pertinent to note that Atma Ram Properties (supra) concerned a

case involving a tenant and not a gratuitous licensee.

36.    Coming to the next judgment of the Supreme Court in the case of

State Vs. Supermax (Supra), the Supreme Court considered a case of a

tenant protected under the Rent Control Act, where eviction was directed

under one of the provisions of the Rent Control Act. In Supermax (supra),

the Court noticed that the Appellate Court, while granting a stay, passed

interim orders fixing the rent, which was very excessive. The Supreme Court

held, in paragraphs 76 and 77, as under:

                                    17/22
501 WP 10799.26.doc                                                 Dusane
       “ 76. The Court answered the first issue as follows: (Atma
       Ram Properties case, SCC pp. 716-17, para 16)


               "16. We are, therefore, of the opinion that the tenant
               having suffered a decree or order for eviction may
               continue his fight before the superior forum but, on the
               termination of the proceedings and the decree or order of
               eviction first passed having been maintained, the tenancy
               would stand terminated with effect from the date of the
               decree passed by the lower forum. In the case of
               premises governed by rent control legislation, the decree
               of eviction on being affirmed, would be determinative of
               the date of termination of tenancy and the decree of
               affirmation passed by the superior forum at any
               subsequent stage or date, would not, by reference to the
               doctrine of merger have the effect of postponing the date
               of termination of tenancy."

       The second issue was answered as follows: (Atma Ram
       Properties case, a SCC p. 718, para 19)

               "(2) With effect from that date [the passing of the decree
               of eviction], the tenant is liable to pay mesne profits or
               compensation for use and occupation of the premises at
               the same rate at which the landlord would have been able
               to let out the premises and earn rent if the tenant would
               have vacated the premises. The landlord is not bound by
               the b contractual rate of rent effective for the period
               preceding the date of the decree." (words in parenthesis
               added) (emphasis supplied)

       We are in respectful agreement with the decision of the Court
       in Atma Ram Properties :

       77. In the light of the discussions made above we hold that
       in an appeal or revision preferred by a tenant against an order
       or decree of an eviction passed under the Rent Act it is open to
       the appellate or the Revisional Court to stay the execution of
       the order or the decree on terms, including a direction to pay
       monthly rent at a rate higher than the contractual rent. Needless

                                       18/22
501 WP 10799.26.doc                                                         Dusane
       to say that in fixing the amount subject to payment of which
       the execution of the order/decree is stayed, the Court would
       exercise restraint and would not fix any excessive, fanciful or
       punitive amount.”

37.    In Safset Vs. Riddhi (supra), this Court considered a case with respect

to a leave and license agreement, wherein this Court relied upon the

judgment in Atma Ram Properties (supra), directing interim compensation at

the market rate from the date of termination of the license. However, in the

instant case, we are dealing with slightly different facts. The case before me

is not one of a tenancy protected under the Rent Control Act, or of a licensee

under a leave and license agreement. The instant case relates to a category of

family dispute where the younger brother has claimed that the elder brother

is his gratuitous licensee in respect of the suit premises, situated in a

building where the elder brother and his family also have other flat premises

in the same building. The suit flat stands in the name of the Plaintiff, but

there is a suit for declaration of title filed by Defendant No.1 claiming

ownership of the suit flat, contending therein that the flat was purchased in

the name of his younger brother/Plaintiff, as the society was not granting

him permission to purchase another flat in the same building. Since the

matter pertains to a gratuitous licensee, more particularly in the context of a

family dispute, and the determination of title is also substantially in issue in

the suit filed by Defendant No.1, the parameters for computing
                                     19/22
501 WP 10799.26.doc                                                      Dusane
compensation as laid down in Atma Ram Properties (supra) in the leave and

license cases or Rent Act cases may not strictly apply. However, Atma Ram

Properties (supra) also holds that the Appellate Court, while granting an

order of stay, may impose such terms and conditions as may meet the ends

of justice and protect the interests of the party ultimately found to be

successful in the appeal.

38.    The Trial Court has decreed the eviction suit on the basis of the

Plaintiff’s ownership certificate as the suit property stands in the name of the

Plaintiff. The Small Causes Court does not adjudicate upon the issue of title,

and has proceeded on the basis of ownership, having regard to the limited

scope of enquiry before it.

39.    The Petitioner had not placed any valuation before the Appellate

Court. However, the Plaintiff had produced a report prepared by Architects,

assessing the market rent of the suit premises at Rs.6,65,200/- per month

with effect from November 2024. Nevertheless, the Appellate Court has

granted Rs.3,00,000/- per month as interim compensation. In the

circumstances, the said amount does not warrant interference.

40.    The Supreme Court has held that, while granting a stay of an eviction

decree under Order 41, Rule-5, the Appellate Court is required to balance the

equities between the parties. In the facts and circumstances of the present

                                     20/22
501 WP 10799.26.doc                                                    Dusane
case, this Court is of the view that the Petitioner be directed to pay a sum of

Rs. 3,00,000/- per month to the Plaintiff with effect from the date of the

decree of the trial Court, so as to avoid the imposition of extremely onerous

conditions of deposit from the date of the suit, more particularly when the

suit for declaration of ownership is pending consideration before the Civil

Court. The amount directed by the Appellate Court to be paid from the date

of the suit until the date of the decree, can secure by an undertaking to be

given by the Petitioners.

41.    Accordingly, the compensation of Rs.3,00,000/- per month, as

directed, shall be deposited in the Court with effect from the date of the

decree, i.e. 26th November 2024. The Plaintiff shall be permitted to withdraw

the said compensation upon furnishing an undertaking to the satisfaction of

the Court.

42.    This Court has thus attempted to balance the equities by permitting the

Plaintiff to withdraw the amount subject to an undertaking.

43.    With the above observations, the impugned order stands modified.

44.    Accordingly, the Writ Petition is disposed of with following

directions. The directions/conditions impugned in the impugned order

passed on Exhibit-10 stands modified, as under :-



                                    21/22
501 WP 10799.26.doc                                                   Dusane
                             (i)     The applicant shall deposit Rs.3,00,000/- per month as
                                     interim compensation from the date of decree i.e. 26 th
                                     November 2024, within a period of two months.


                             (ii)    The Petitioner shall also continue to deposit monthly
                                     compensation at the same rate on or before 10th day of each
                                     succeeding month till the final disposal of the Appeal.
                             (iii)   If an application is made by the Defendant to withdraw this
                                     amount, the same shall be permitted on an undertaking and
                                     the Petitioner shall not create any third party interest in the
                                     suit premises.
                             (iv)    The Petitioners to give an undertaking that in the event the
                                     Petitioner fails in the Appeal, he would deposit the
                                     compensation @ Rs.3,00,000/- per month from the date of
                                     Suit till the date of decree within 8 (eight) weeks before
                                     the Appellate Bench of Small Causes Court. Undertaking
                                     to be filed in this Court.


                      45.    Any observations made in this order are prima facie in nature, are

                      confined solely to the adjudication of the present Petition, and shall have no

                      bearing whatsoever on the title suits pending between the parties or on any

                      application pending in the present matter.

BHALCHANDRA
GOPAL
DUSANE

Digitally signed by                                                      [ ARUN R. PEDNEKER, J. ]
BHALCHANDRA
GOPAL DUSANE
Date: 2026.09.21
20:17:42 +0530



                                                             22/22
                      501 WP 10799.26.doc                                                      Dusane