1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL SIDE JURISDICTION JUDGE’S ORDER NO. 445 OF 2009 IN SUIT NO. 3553 OF 2004 M/s. Mahendra Builders .. Plaintiffs. V/s Brihan Mumbai Municipal Corporation of Gr. Bombay & Ors. ..Defendants. --- Mr. Vijay Thorat, Sr. Advocate a/w. Mr. Sharan Jagtiani & Ms. Luann Crasto i/by M/s. K. Ashar & Co. for the Plaintiffs. Mr. Firoz Bharucha a/w. Mr. Kunal Cheema for Defendant No.2. Mrs. Uma Palsuledesai, AGP for Defendant No.11-State. ---- CORAM : V.M. KANADE, J. DATED : 28TH JANUARY, 2010 P.C.: 1. This Judge’s Order is taken out by the plaintiffs. 2. The Bailiff has submitted a report in which he has recorded that one Azeem Hasib Khan has no objection for the plaintiffs to occupy the suit premises. However, he has refused to hand over the keys of the suit premises. Therefore, this Judge’s Order was taken out for a direction to the Sheriff/Bailiff at Mumbai to take forcible possession of Office No. 62, situate on the second floor of Mahendra Chambers, D.N. Road, Mumbai 2 from said Azeem Hasib Khan or from any other person found in possession and if necessary by breaking-open the lock or locks on the suit premises and hand over the keys of the same to the plaintiffs in view of the orders passed by this court on 20th December, 2005, 24th November, 2006, 2nd March, 2009 and 16th October, 2009. 3. The learned counsel appearing on behalf of the defendant no.2 submits that he has no objection if the plaintiffs take possession of the suit premises. He, however, objects to the order in terms of the Judge’s Order. It is urged by the learned counsel appearing on behalf of the defendant no. 2 that Azeem Hasib Khan is not a party to the suit and as such the Judge’s order which is sought by the plaintiffs cannot be passed by this court since there is no provision under the Civil Procedure Code or in the Original Side Rules for handing over possession of the property, which is in possession of the third party, more particularly during the pendency of the suit. He submits that the plaintiffs have taken out the Obstructionist Notice under Order 21, Rule 96 of the Civil Procedure Code to hand over possession of the suit premises and it is only after obtaining orders under the said Notice the plaintiffs could seek possession of the premises which are in possession of the third party. In support of the said submission, he relied upon the judgment of the Apex Court in the case of Brahmdeo 3 Chaudhary vs. Rishikesh Prasad Jaiswal & Another, reported in 1997 (3) Supreme Court Cases 694. He submits that the defendant no. 2, as in the order which is passed by this court had an ad-interim stay pending the final hearing of the motion no. 4025/2005 and in terms stated that they have no objection, if possession was taken by the plaintiffs of the suit premises. 3. On the other hand, learned counsel appearing on behalf of the plaintiffs invited my attention to the various orders passed by this court. Some of which are mentioned in the Judge’s Order and also subject to the orders which were passed by the Bombay City Civil Court in the suit filed by the said Azeem Hasib Khan wherein interim relief was not granted and as such further orders were passed by this court, permitting the plaintiffs to take possession. He submitted that pursuant to the said orders which were passed by this court, the Bailiff had gone to take possession of the suit premises and at that time even the said Azeem Hasib Khan had categorically stated that he has no objection if the possession of the suit premises was taken and the plaintiff was put in possession of the suit premises. In my view there is no substance in the objection raised by the defendant no.2. Admittedly defendant no.2 does not hold power of attorney or has no locus to represent the said Azeem Hasib Khan. The defendant no.2 has made a statement before this court in the earlier proceedings that they have no objection 4 if the plaintiffs take possession of the suit premises. This being the case, the objection raised by the learned counsel appearing on behalf of defendant no.2 that though they have no objection for the plaintiffs taking possession of the suit premises, they have objection to the order being passed by way of the Judge’s Order, is unsustainable and cannot be accepted. Since the said third party, namely, Azeem Hasib Khan had made a statement before the Bailiff that he has no objection if the plaintiffs is given possession of the premises, even otherwise the contention raised by defendant no.2 has no substance. 4. In the result, the objection raised by the defendant no.2 is over ruled. It is, however, clarified that the Judge’s order which is passed is subject to the further orders that would be passed in the suit. Needless to state that if the plaintiff is directed to hand over the possession of the suit premises, he shall be duty bound to do so in the suit. 5. The parties shall act on an authenticated copy of this order issued by the Registry. (V.M. KANADE, J)