NARESH HARIRAM CHOITHANIversusANAND ALIDAS CHOITHANI

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         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION
                    WRIT PETITION NO. 10262 OF 2026

Anand Alidas Choithani                                 … Petitioner
                Versus
Naresh Hariram Choithani                               … Respondents

                                    WITH
                    WRIT PETITION NO. 6548 OF 2026

Naresh Hariram Choithani                                … Petitioner
         Versus
Anand Alidas Choithani                                  … Respondent




Adv. Vikramjit S. Garewal a/w Adv. Sagar Deb, Adv. Anmol
Bartaria, Adv. Mohak Bartaria for Petitioner in WP/10262/2026 and for
Respondent in WP/6548/2026.

Adv. Pradeep Thorat i/b Adv. B. R. Dalal for Respondent in
WP/10262/2026 and for Petitioner in WP/6548/2026.



                                 CORAM        : ARUN R. PEDNEKER, J.
                                 DATE         : 27 AUGUST, 2026
P.C. :


1.            The present Petition No. 10262 of 2026 challenges the order

dated 24.03.2026 passed by the Appellate Bench of the Small Causes

Court in Revision Application No. 11 of 2026, whereby the Appellate

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Bench partly modified the order dated 20.09.2025 passed by the Trial

Court and directed the Defendant/Petitioner to deposit an amount of

Rs.10,000/- per month for the period from 31 August 2023 to 31 March

2026, i.e. Rs. 3,00,000/-, along with simple interest at the rate of 6% per

anum and thereafter at the rate of Rs. 10,000/- per month towards the

compensation for occupying the suit premises.


2.            In Writ Petition No. 6548 of 2026, the licensor of the suit

property has also challenged the impugned order dated 24th March

2026 passed by the Appellate Bench, whereby the Appellate Court

reduced the amount of compensation payable, and further declined to

permit the Petitioner to withdraw the amount deposited. Both the

petitions are, therefore, taken up together.

                By the order dated 20.09.2025 passed by the Trial Court,

Mumbai, in L.E. Suit No. 146 of 2012, the Court directed the

Defendant/Petitioner to deposit         arrears of monthly compensation

amounting to Rs. 14,41,000/-        for the period from January 2012 to

August 2023 and Rs. 3,46,500/- for period from September 2023 to

September 2025 and thereafter Rs. 16,500/- per month towards

compensation.




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3.            Facts are noted from Writ Petition No. 10262 of 2026 :-

              The case of the Petitioner is that the Petitioner’s family was

originally allotted the suit premises under the Displaced Persons

(Compensation and Rehabilitation) Scheme following the Partition of

India in 1947. The residential premises bearing Block No. 32, Room No.

1, situated at Mulund Colony, Powai Chowk, Mulund (West), Mumbai –

400082 (“Suit Premises”), were allotted on a tenancy basis to Late Shri

Hariram Alidas Choithani. Subsequently, an additional portion was

constructed adjoining the original premises to accommodate the

expanding family. Disputes have since arisen between the two branches

of the family concerning their respective rights and entitlements in

relation to the Suit Premises.



4.            The learned counsel for the Petitioner submits that the

Petitioner has remained in long, continuous and uninterrupted

possession of the portion occupied by him for several decades. The

Petitioner resides in the original portion of the Suit Premises, while the

other branch of the family has been occupying the subsequently

constructed portion. He further relies upon municipal records, bills and

other documents concerning the Suit Premises, which, according to the

Petitioner, stand in the Petitioner's name.



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5.            Late Shri Hariram Alidas Choithani expired in the year 2000.

Thereafter, the Respondent instituted L.E. Suit No. 146 of 2012 before

the Small Causes Court at Mumbai under Order XV-A of the Code of

Civil Procedure, 1908, seeking, inter alia, eviction of the Petitioner

from the Suit Premises contending that the Petitioner was a gratuitous

licensee.



6.            The trial in L.E. Suit No. 146 of 2012 is stated to be pending.

During the pendency of the suit, the Trial Court, by the impugned

order dated 20.09.2025, allowed the application at Exhibit 54 and

directed the Petitioner to deposit arrears of monthy compensation of

Rs. 14,41,000/- for the period from January 2012 to August 2023 and

Rs. 3,46,500/- for the period from September 2023 to September 2025

and therreafter Rs. 16,500/- per month as compensation.The Petitioner

thereafter preferred Revision Application No. 11 of 2026. By order

dated 24.03.2026, the Revisional Court partly allowed the Revision

Application and modified the direction concerning the commencement

of payment of compensation, directing that such compensation be

payable from the date of the application at Exhibit 54, instead of being

payble from the date of institution of the suit and modified the interim

compensation at the rate of Rs. Rs.10,000/- per month.


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7.            The Defendant/Petitioner has filed Civil Suit No. 3249 of 2006

against the Plaintiff/Respondent before the City Civil Court in respect

of the same subject matter, i.e. the suit premises. In the said suit, the

Petitioner's claim is that the father of the Plaintiff, Hariram Alidas

Choithani, during his lifetime, had transferred/surrendered his right,

title and interest in half portion of the suit property to the

Petitioner/Defendant. The relevant issues are framed at Exhibit 'O' are

as follows:

              1) Whether plaintiff proves that he is owner of half portion of
              Block No.32, Room No.1, Mulund Colony, Mumbai?

              2) Whether defendants prove that suit premises was allotted to
              Mr. Hariram Aildas Choithani ?




8.            The said suit was dismissed by the City Civil Court on merits

by judgment and order dated 7 July 2011, against which an First

Appeal No. 1784 of 2011 has been filed and is pending for consideration

before this Court.



9.            In the L.E. Suit No. 146 of 2012, filed for eviction of the

Defandant/Petitioner as a gratuitous licensee, the Plaintiff/Respondent

filed an application under Order XV-A of the Code of Civil Procedure,


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1908 seeking compensation. The Order XV-A of the Code of Civil

Procedure reads thus:



              ORDER XV-A
              Striking off Defence in a suit by a lessor.
              (1)      In any suit by a lessor or a licensor against a lessee or
              a licensee, as the case may be, for his eviction with or without
              the arrears of rent or licence fee and future mesne profits from
              him, the defendant shall deposit such amount as the Court
              may direct on account of arrears up to the date of the order
              (within such time as the Court may fix) and thereafter continue
              to deposit in each succeeding month the rent or licence fee
              claimed in the suit as the Court may direct. The defendant
              shall, unless otherwise directed, continue to deposit such
              amount till the decision of the suit.
                 In the event of any default in making the deposits, as
              aforesaid, the Court may subject to the provisions of sub-rule
              (2) strike off the defence.
10.           The   Respondent/Plaintiff        filed   the   application     claiming

compensation of monthly rent as under:




Sr. No. Period                    Per Month License Fees (Rs.) Total (Rs.)
1             January 2012 to     8,500/-                               4,33,500/-
              March 2016
2             April 2016 to       10,000/-                              1,10,000/-
              February 2017
3             March 2017 to       11,500/-                              1,38,000/-
              February 2018
4             March 2018 to       13,000/-                              1,56,000/-
              February 2019
5             March 2019 to       13,000/-                              3,12,000/-


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              February 20121
6             February 2022 to      14,500/-                           1,59,500/-
              December 2022
7             January 2023 to       16,500/-                           1,32,000/-
              August 2023
                                    Total                              14,41,000/-


11.           The Respondent/Plaintiff placed on record                evidence of

similarly placed tenancies in the vicinity. Considering the evidence

placed on record, the Trial Court allowed the application at Exhibit No.

54 in L.E. Suit No. 146 of 2012 and directed the Petitioner to pay

compensation of Rs.14,41,000/- for the period from January 2012 to

August, 2023, along with arrears of monthly compensation of

Rs.3,46,500/- for the period from September 2023 to September 2025

and thereafter directed to deposit in Court an amount of Rs.16,500/-

per month along with other consequential reliefs.



12.           The said order of the Trial Court on the application at Exhibit

54 was challenged before the Appellate Bench of the Small Causes

Court by filing a Revision Application. The Appellate Bench upon

consideration of the material on record, modified the order passed by

the Trial Court and partly allowed the Revision Application. The

Appellate       Bench    directed     the       Defendant/Petitioner   to      deposit

compensation towards arrears of rent at the rate of Rs.10,000/- per

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month for the period from 31 August 2023, to 31 March 2026, i.e. Rs.

3,00,000/- along with simple interest at the rate of 6% per annum. The

Appellate Bench further directed the Defendant/Petitioner to deposit

an amount of Rs. 10,000/- per month from April 2026 onwards towards

the compensation for use and occupation of the suit premises.

13.           Learned counsel for the Petitioner submits that both the

Courts have failed to appreciate the purpose of Order XV-A of the CPC.

He submits that, in the instant case, the title is under dispute and

therefore, there could have been no direction to deposit compensation

under Order XV-A of the CPC. Order XV-A of the CPC would primarily

apply to a relationship between a lessor and the lessee or a licensor and

a licensee and not to a gratuitous licensee. The learned counsel also

submits that the direction to deposit Rs. 10,000/- per month while the

title suit itself is pending would defeat the title suit and would be an

onerous upon the Defendant.



14.           Per contra, learned counsel appearing for the Respondent

submits that the Appellate Bench has, in fact, reduced the

compensation, which it ought not to have done, as there was clear

material on record to indicate that the Plaintiff was entitled to

minimum rental compensation of Rs.16,500/- per month. He also



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submits that the suit filed by the Respondent for declaratory reliefs in

respect of the suit property has also been dismissed and an appeal has

been filed. Learned counsel further submits that Order XV-A is an

equitable remedy and that the direction issued by the Trial Court and

the Appellate Court on law are correct. He however, submits that the

compensation of Rs. 16,500/- per month is inadequate.



15.           Having considered the rival submissions, in the instant case,

it is a matter of fact that the suit filed by the Defendant/Petitioner

seeking declaratory reliefs in respect of the subject matter has been

dismissed and that the appeal is pending. The Trial Court has

rendered a finding that the alleged transfer by the father of the

Plaintiff in favour of the Defendant was without consideration. Prima

facie, therefore, the original title of the Plaintiff in the present suit is

not under a cloud.



16.           Considering this aspect of the matter, the authority of the

Court to entertain the present application cannot be doubted. Under

Order XV-A, the next issue arises for consideration is “Whether the

direction issued to deposit an amount of Rs.10,000/- per month is




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appropriate?” In L.E. Suit No. 146 of 2012 filed by the Plaintiff, the

amount claimed in prayer clause (b) is as under:



              b) The defendant be ordered and decreed to pay to the plaintiff
              mesne profit at market rate @ Rs.8,500/- p.m. or at such other
              rate as deems fit and proper by this Hon'ble Court after
              making an enquiry under order XX, Rule 12 of CPC from
              29.12.2011 till the date of judgment and thereafter the
              defendant be ordered and decreed to pay to the plaintiff mesne
              profit at such other rate as deem fit and proper by this Hon'ble
              Court by enquiry under Order XX, Rule 12 of CPC after date of
              judgment till the defendant quit, vacate and handover vacant
              and peaceful possession of the suit premises to the Plaintiff.



         Considering the prayer clause in the suit, particularly that the

Plaintiff has claimed an amount of Rs.8,500/- per month till the date of

the judgment, the compensation awarded under Order XV-A beyond

Rs.8,500/- amounts to travelling beyond the pleadings. The plaint does

not seek compensation at an enhanced rate every year. Thus, the

compensation should not exceed Rs.8,500/- per month.



17.           The next issue is whether the compensation is payable from

the date of the application or from the date of the suit. In this regard,

this Court, in the case of Shreeprasad R. Jamdar Vs. Shashikalal

Prabhakar Nadkarni & Ors., in Writ Petition No. 3443 of 2019, has

held that compensation can be paid under Order XV-A for occupation of


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the premises by a gratuitous licensee after termination of the license.

In the case of Apsara Development Corporation Vs. Rafique

Siddique in Writ Petition No. 1038 of 2022, this Court directed the

payment of compensation from the date of the application, holding that

such compensation is compensatory in nature. Since the relief is in the

nature of interim compensation, there is no justification for granting

such compensation from the date of filing of the suit.



18.           In this regard, the learned counsel for the Respondent pointed

out that there was a particular reason why, in the case of Shreeprasad

R. Jamdar (supra) the compensation was not granted from the date of

the suit. It was done so since the earlier application was not pressed

and therefore, the subsequent application filed under Order XV-A was

granted from the date of the application.



19.           Considering the declaration of law by this Court inthe case of

Apsara (supra), as to the nature of compensation being interim in

nature and that it has to be granted from the date of the application, I

need not inquire further into this aspect of the matter. This Court is

accordingly will apply the law laid down in the case of Apsara

Development Corporation (supra).



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20.           In the case of Kekasha Parveen Varsi Vs. Mrs. Husna

Abdul Rashid Qureshi Aka & Ors. in Writ Petition No. 8379 of 2025,

this Court has considered the object of Order XV-A, which came to be

inserted by way of an amendment by the Bombay High Court with

effect from 1 October 1983. The object of the said provision appears to

be to secure the interest of the landlord, as the continued occupation of

the Suit Premises by a lessee or licensee after termination of the lease

or license, as the case may be, without payment of rent or license fees,

would cause grave prejudice to the landlord. Often, the suits for

eviction await adjudication years. A determination of mesne profits

after long lapse of time from the termination of tenancy and the

institution of the suit for eviction is not a solace for the landlord. This

Court, in the case of Kekasha Parveen Varsi (supra), has discussed

the object of Rule 1 Order XV-A and has also dealt with the issue of a

gratuitous licensee, where the premises were once occupied under a

gratuitous license and thereafter there is termination of the license,

the Defendant is liable to pay compensation for the occupation of the

premises.



21.           This Court in the judgments of Shreeprasad R. Jamdar

(supra) and Dr. Nirmala Sohanlal Pandit Vs. Madhu Sudan


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Kumar Mangalore Jarappa in Writ Petition No. 11620 of 2017, has

held that the Court would be justified in directing the Defendant, who

is stated to be a gratuitous licensee, to pay the interim compensation.

This Court held that the suit for eviction of a gratuitous licensee does

not appear to be completely out of the purview of the provisions

contained in Order XV-A. This Court observed that, it would be

contextually relevant to note that Rule (1) of Order XV-A came to be

substituted by the Notification dated 11 January, 1990. Inter alia, the

expression, "In a suit by a lessor or a licensor against a lessee or

licensee as the case may be, came to be substituted for the expression

"In a Suit by a lessor for eviction of a lessee". The Rule making

authority thus, found it necessary to empower the court to direct a

licensee as well to deposit the license fee in a Suit instituted by the

licensor for eviction, with or without arrears of license fee. The term

"licensee" covers within its fold a gratuitous licensee. If the

landlord succeeds in demonstrating that the Defendant was a

gratuitous licensee that license has been duly terminated and, yet such

licensee continues to occupy the subject premises, as a matter of

principle, the Court cannot be precluded from directing such licensee to

deposit the amount towards license fee as the Court may find

appropriate in a given case.



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22.           However, this Court has further observed that it need not be

guided by market rate and the principles laid down in the case of Atma

Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., reported in

2005 (3) BOM CR 274, may not strictly apply. However, the Court needs

to be alive to the fact that the Defendant is in the occupation of the

subject premises post revocation of the gratuitous license, without

paying any premium or fees for the same. Thus, this Court in

Shreeprasad R. Jamdar (supra) was of the view that, although the

compensation may not be at the market rate, it has to be sufficient,

being conscious that the gratuitous licensee is occupying the premises,

and that a reasonable fee for such occupation has to be determined by

this Court.



23.           Considering the principles of law laid down in various

judgments of this Court, this Court would partly modify the order of

the Appellate Court by directing the payment of compensation to the

extent of Rs. 8,500/- per month from the date of the application.


24.           Since I have already held that the Petitioner in Writ Petition

No. 6543 of 2026, being prima facie the licensor / owner of the property,

would be entitled to withdraw the amount deposited before the Court,



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subject to furnishing an undertaking that, in the event any adverse

order is passed against him, he shall redeposit the said amount. The

entire amount of arrears shall be paid within six weeks, and thereafter,

the month-to-month compensation shall be deposited regularly.


25.           The Writ Petitions are partly allowed and accordingly

disposed of.




                                            [ARUN R. PEDNEKER, J.]




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