Roopchand Harakchand Jain Vs Gajanan Dattaram Deolekar and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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 WRIT PETITION NO. 8942 OF 2003

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 Smt. Kanchandevi S. Jain ... Petitioner

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V/s

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 Gajanan Dattaram Deolekar & anr. ... Respondents

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ALONGWITH
 WRIT PETITION NO. 8943 OF 2003

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 Roopchand Harakchand Jain ... Petitioner
 V/s

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 Gajanan Dattaram Deolekar & anr. ... Respondents

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 Mr. K.K.V. Kurup for the petitioner in both petitions.
 Mr. P.S. Dani for the respondents in both petitions.

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CORAM: P.V. KAKADE, J.

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DATED: 10TH APRIL, 2006

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P.C.:

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 1. Heard learned counsel for both parties in both

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 petitions. Both petitions can be disposed of by this
 common order as the landlord is the same and the
 petitioners are two tenants of the common landlord.

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 2. The petitioner in Writ Petition No. 8942 of 2003
 has impugned the order passed by the learned appellate
 Court dismissing the appeal and confirming the judgment

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 and order passed by the Trial Court dated 23.7.2001
 making the Int. Notice No. 303 of 2000 in R.A.E. & R.
 Suit No. 257/727 of 1998 absolute and the petitioner in
 Writ Petition No. 8943 of 2003 has impugned the order
 passed by the learned appellate Court dismissing the
 appeal and confirming the judgment and order passed by
 the Trial Court dated 23.7.2001 making the Int. Notice
 No. 304 of 2000 in R.A.E. & R. Suit No. 258/728 of

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 1998 absolute.

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 3. The respondent plaintiffs who are landlords had
 taken out the notice for order directing the defendant
 to pay the arrears of rent, permitted increases, other
 outgoings and common benefits as per the particulars of

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 the claim given in the application. The respondent

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 plaintiffs further submitted that the

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 petitioner-defendant be directed to pay further society
 charges and common benefits on pro-rata basis as per the
 actual bills received by the plaintiffs. It is further
 prayed that the future monthly rent be fixed at the rate
 of Rs.656/- per month and the defendant be directed to
 deposit the same every month on or before 10th of each
 month. It is also prayed that the plaintiffs be allowed
 to withdraw the amount as and when deposited. The
 respondent plaintiffs have filed the suit for possession

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 of the defendant’s premises on the grounds mentioned
 therein and the defendant is liable to pay the rent
 amount. However, he remained in arrears of rent and
 permitted increases from November, 1997 and failed to
 pay it inspite of demand notice dated 15.5.1998. Under
 the circumstances, said notices were taken out.

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 The petitioner defendant contested the application on
 various grounds inter-alia denying the liability to pay
 the said amount on the ground that the landlord was
 trying to extract undue money from them. It was
 submitted that the demands made by the plaintiffs were
 unreasonable as well as illegal, such as, light charges,
 sweeper charges, etc. and on such and other grounds,
 the application was sought to be dismissed.

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 4. The learned Trial Judge, after hearing both parties,
 came to the conclusion that the petitioner defendant was
 liable to pay the amount as per the particulars given in
 Exh.A annexed to the application. It was further
 observed that, even if there is undue recovery of the
 amount by the plaintiffs, the amount is to be accepted
 without prejudice to the rights of the parties and in
 case it is established that the plaintiffs have
 recovered excessive amount then payable to them, then

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 the said amount can be adjusted in the decretal amount

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 if the decree is passed and hence the order is passed
 making the notice absolute to the effect that the
 petitioner should pay an amount of Rs.51,165/- and
 deposit it in the Court towards arrears of rent and
 permitted increases upto July, 2001 within a particular
 time and it was further directed to deposit the amount
 of Rs.656/- p.m. in the Court on or before 10th day of
 each month from August, 2001 till the disposal of the
 suit. It was clarified that the amount would be
 accepted without prejudice to the rights of parties and
 the plaintiffs were allowed to withdraw the amount of
 deposit as and when deposited.

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 5. Respective appeals were carried against the said
 order. The appellate Court, after hearing both parties
 and on the basis of evidence on record, dismissed the
 respective appeals and hence the present petitions.

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 6. Pending the petitions, this Court by order dated
 8.2.2005 in Civil Application No. 245 of 2005 in Writ
 Petition No. 8942 of 2003 and Civil Application No.
 246 of 2005 in Writ Petition No. 8943 of 2003 which
 were for stay of the impugned order, directed the
 petitioners to pay and deposit the amount of Rs.51,165/-

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 in respective applications in the Court. It was also
 observed that the petitioners had already deposited the
 amount of Rs.20,000/- each in the Trial Court and,
 therefore, it was directed that on petitioners
 depositing another sum of Rs.15,000/- each in the Trial
 Court, the order would stand stayed pending the
 petition.

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 7. On this back ground, the learned counsel for the
 petitioner submits that the impugned orders in both
 petitions are totally unreasonable and illegal as the
 amount demanded by the landlord are much in excess with
 the amounts which would be found due. Moreover, it was
 submitted that under such circumstances, the orders
 passed in both petitions could not survive as the
 notices moved in both matters were illegal.

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 8. However, if we peruse the orders passed in both
 petitions, both the Courts below have come to the
 conclusion that the amounts would be accepted without
 prejudice to the rights of parties and in case it is
 established the plaintiffs have recovered excess amount
 then payable to them, the said amount would be adjusted
 in the decree. If this is the position, then this Court
 would not be justified in intervening in the said

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 matters where the lower Courts appear to have used
 judicial discretion in passing the order.

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 9. Be that as it may, the concurrent findings recorded
 by both the Courts below are found to be legal and
 proper and hence, I am of the considered view that the
 present petitions are beyond the scope of writ
 jurisdiction of this Court as contemplated under Art.
 227 of the Constitution of India and, as such, deserve
 to be dismissed. Hence, both petitions are dismissed.

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 The petitioners shall deposit the remaining amounts
 after deducting the amounts which are already deposited
 in the Trial Court as per the directions given by this
 Court by order dated 8.2.2005.

Roopchand Harakchand Jain v. Gajanan Dattaram Deolekar and Anr.

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Roopchand Harakchand Jain v. Gajanan Dattaram Deolekar and Anr.

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