1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2914 OF 2010 IN FIRST APPEAL NO.942 OF 2009 Mr.Shrichand V.Raheja .. Applicant V/s Mr.Sunil Janardhan Kokate & Anr. .. Respondents Mr.Vaibhav Mehta for the Applicant. Mr.P.G.Lad for Respondent No.1. CORAM: R.G.KETKAR, J. DATE: 3rd August, 2010. P.C. 1. Heard learned counsel for the Applicant and learned counsel for Respondent No.1. Since the Respondent No.1 is really a contesting party, notice of this Civil Application on Respondent No.2 is dispensed with. 2. Rule. By consent, Rule is made returnable forthwith. 3. This application is for stay of the execution and/or implementation of the judgment and decree dated 7th May, 2009 passed by the learned Judge of the City Civil Court, Bombay in S.C.Suit No.1129 of 2003. The Respondent No.1, hereinafter referred to as Plaintiff had instituted the said suit for declaration that he is occupant in respect of old Room No.69 , Chawl No.D, Irani Chawl, situate at Anant Ganpat Pawar Lane, 119, Chinchpokali Cross Lane, Byculla, Mumbai, and to put him in possession of Room No.418 or any other Room in the newly constructed building in the place of old Irani Chawl. The plaintiff also claimed injunction against the applicant hereinafter referred as Defendant No.1, in any manner removing the plaintiff’s articles and belongings from the godown at the site of old Irani Chawl, as also for injunction restraining the Defendant No.1 from parting with possession or creating any third party rights in respect of Room No.418 in the 2 newly constructed building at 119, Chinchpokali Cross Lane, or in the alternate directing Defendant No.1 to keep one tenement vacant in the newly constructed building at 119, Chinchpokali Crozz Lane, Byculla, Mumbai. 4. The plaintiff asserted that in respect of Room No.69 his grand-uncle Hiroo Sakharam Tanawade was a tenant, who was residing there alongwith his wife and the plainiff’s father Janardhan Kokate and the plaintiff. On 1st December, 1977 said Hiroo expired leaving behind his wife, plaintiff’s father and the plaintiff as the family members. It is the case of the plaintiff that Defendant No.1 acquired Irani Chawl sometime in the year 1981 and started collecting rent from the tenants including the widow of deceased Hiroo. In due course, Defendant No.1 transferred rent receipt in the name of Laxmibai, widow of Hiroo. The plaintiff claims that his father was looking after Laxmibai and the said Laxmibai out of natural love and affection executed a Will bequeathing all her properties in favour of the plaintiff’s father. The said Will dated 10th September, 1992 was registered with the Sub-Registrar of Assurances. Said Laxmibai expired on 22nd July, 1995. Plaintiff further asserted that Laxmibai had executed an affidavit on 19th September, 1992 expressing her desire to transfer the premises in the name of the plaintiff. It is the case of the plaintiff that all throughout he was residing alongwith Laxmibai and his father. Defendant No.1 intended to develop the property, and though the plaintiff repeatedly approached Defendant No.1 for allotment of permanent accommodation in the newly constructed building, Defendant No.1 has denied for the same, and therefore, suit was instituted for the aforesaid reliefs. 5. Defendant No.1 resisted the suit by filing the written statement, inter- alia denying the claim of the plaintiff. Defendant No.1 contended that it is not aware as to whether the plaintiff was residing alongwith Laxmibai. It was asserted that the plaintiff failed to show as to how his father became tenant in respect of the premises as also his entitlement to 3 the said premises as tenant. It was further contended that the plaintiff filed suit on the basis of fabricated documents and consequently, prayed for dismissal of the suit. 6. On the basis of rival pleadings, learned Trial Judge framed necessary issues. Parties led oral as well as documentary evidence in support of this case. The learned trial Judge held that the plaintiff has established that Laxmibai Hiroo Tanawade was the tenant of Room No.69 and that he was residing alongwith the said Laxmibai during her lifetime as the family member. Learned trial Judge further declared that the plaintiff is occupant of old Room No.69 and consequently decreed the suit and directed the Defendants to provide permanent accommodation in the new building, in lieu of old Room No.69. 7. It is not in dispute that by order dated 12th March, 2003 learned Trial Judge granted ad-interim relief in terms of prayer clause (a) of the draft Notice of Motion. The learned Trial Judge further directed that, without prejudice to the rights and contentions of the parties, Defendant No.1 shall keep one premises reserved in the new building. Accordingly, Flat No.118 in B Wing is reserved. On the basis of material on record, the learned Trial Judge, as indicated earlier, has decreed the suit. 8. With the assistance of the learned counsel for the parties, I have gone through the material on record. In support of his case, the plaintiff has produced voluminous documentary evidence on record to establish that he was residing with Laxmibai, widow of Hiroo Tanawade. The learned Trial Judge has considered the material on record in Paragraph Nos.11, 19, 20 and 21 and recorded the findings on this aspect and decreed the suit. Plaintiff has therefore established a good prima-facie case. As per the order dated 12th March, 2003, Flat No.118 is reserved for plaintiff. It is not in dispute that the said flat is lying vacant. Since said flat is as it were ‘in medio’, in the enjoyment of no one, I am of the opinion that it would be in the common interest of Plaintiff as also Defendant No.1 that the Court Receiver is appointed. This will also preserve the said flat 4 in litigation ‘pendente lite’. The said flat will be in danger of loss from the neglect and waste, if left unoccupied. In my opinion, it would be just and convenient to appoint the Court Receiver, High Court, Bombay, in respect of the Flat No.118 in B Wing. Accordingly, Court Receiver, High Court, Bombay is appointed in respect of Flat No.118 in B Wing with all the powers including taking possession of the said flat from Defendant No.1 and putting plaintiff in possession thereof as an agent of the Court Receiver without payment of royalty and security. 9. The interest of justice would be met by appointing plaintiff as an Agent of the Court Receiver in respect of Flat No.118 in B Wing, subject to the condition that he will deposit 50% of the Society charges for the period from the year 2003 till July, 2010 within a period of three months from today. 10. Defendant No.1 shall also deposit balance 50% of the Society charges for the said period from 2003 till July, 2010 within a period of three months from today. 11. After the deposits as aforesaid being made, same shall be invested in a fixed deposit in the Nationalised Bank, initially for a period of three years and the same shall be renewed from time to time during the pendency of the appeal. The plaintiff shall also go on paying Society Charges from the month of August 2010 onwards 12. It is expressly made clear that in case the Defendant No.1 ultimately succeeds in this appeal, it will be open for him to press for damages against the plaintiff at the time of final disposal of the appeal. 13. Rule is made absolute accordingly, with no order as to costs. 14. Parties including the Court Receiver, High Court, Bombay to act on the authenticated copy of this order. (R.G.KETKAR, J.)