B.A. Masodkar, J.
1. By this petition the challenge is to the order made by the Court of Small Causes at Bombay refusing an application under section 11(4) of the Bombay Rent Act, wherein the plaintiff had sought an order to get the deposit of the rent and arrears due from the defendants.
2. Few facts that need be stated so as to indicate the eventual order to which the parties are submitting are that Flat No. G-40 on the 10th Floor of the Building at Plot No. 50 Venus Co- operative Housing Society Ltd. is the property of the present petitioner. It appears to have been given on 11 months licence in favour of defendant No.1. One Raghubir Singh, it is the case of the plaintiff, was an employee of defendant No. 1-Company and for his purposes, defendant No.1 - Company took the flat on leave and licence, the defendant No.1-Company being liable under that agreement and being the licensee. The defence raised on behalf of defendant No. 1-Company appears to be that it was Col. Raghubir Singh who was the licensee and defendant No. 1-Company was not concerned either with the leave and licence or with the liability. The said Col. Raghubir Singh, admittedly, died and defendant No. 2 is the widow, who is in occupation of the said flat. Her case is that she is the direct tenant. Thus, the parties are at issue with regard to the title to the tenancy. However, one fact is not in dispute that no payment is received by the landlord with regard to this property.
3. The order impugned rejects the application of the landlord only on the ground that in view of the nature of the allegations taken in defence, no such order could be made. It is indeed difficult to sustain such an order. Admittedly, defendant No. 2 is occupying the property. She is claiming to be the tenant. Admittedly, defendant No.1 had entered into the alleged agreement of February 28, 1972 and under that agreement, the plaintiff had parted with the possession. These facts were enough to show that there was a necessity of a deposit order.
4. The parties are agreed in view of this position that they will submit to any reasonable order with regard to the deposit. Keeping the position in view that defendant No. 2 is actually occupying the property and it was defendant No.1 - Company who took the initial agreement, it will be fair to direct defendant No. 1 - Company and defendant No. 2, without prejudice to the contention of the parties to deposit Rs. 20,425/- each so as to cover all the arrears. This deposit be made within three weeks. This deposit is directed under section 11(4) of the Bombay Rent Act and be, accordingly, made. The plaintiff is permitted to withdraw an amount of Rs. 14,000/- out of his deposit upon giving an undertaking that in case the suit is dismissed, he will put back the amount within a reasonable time as may be fixed by the Court. The present suit, being R. A. E. & R. Suit No. 1006/3178 of 1981, as well as the other suit, being R. A. E. Suit No. 882/3096 of 1980, are directed to be tried together and be decided by the end of November 1983. Rule made absolute in these terms with no order as to costs.