1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2587 OF 2007 IN COURT RECEIVER’S REPORT NO.101 OF 2007 IN NOTICE OF MOTION NO.3188 OF 2006 IN SUIT NO.2675 OF 2006 WITH COURT RECEIVER’S REPORT NO.101 OF 2007 Shehab Bohra & Anr. ..Plaintiffs. V/s. Rukaiya A.Khanjiwala & Ors. ..Defendants. Mr.P.M.Havnur for Plaintiffs. Ms.Madhavi Tavandia for Defendants. CORAM: D.B.BHOSALE, J CORAM: D.B.BHOSALE, J CORAM: D.B.BHOSALE, J DATE : APRIL 22, 2008. DATE : APRIL 22, 2008. DATE : APRIL 22, 2008. P.C. : P.C. : P.C. : 1. Heard learned Counsel for the parties. 2. This Notice of Motion is taken out by the Plaintiffs for following reliefs. "(a) That this Hon’ble Court be pleased to set aside the ex-parte order dated 12th July, 2007 and adjudicate the Court Receiver’s Report No.101 of 2007 in Notice of Motion No.3188 of 2006 in Suit No.2675 of 2006 on merits so as to enforce order dated 15.2.2007, granting prayer clause (a) of the Notice of Motion No.3188 of 2006 in Suit No.2675 of 2006. 2 (b) Any other and further reliefs as are deemed fit and proper in the nature and circumstances of the case be granted; (c) and the cost also be provided for." 3. The only grievance made by the learned Counsel for the Plaintiffs is that the Order dated 12th July, 2007 passed by the learned Single Judge on the Court Receiver’s Report No.101 of 2007 was passed in absence of Plaintiffs and therefore, it may be set aside and the Report be restored to file and heard on merits. 4. I perused the Order dated 12th July, 2007 and the Order dated 15th February, 2007 passed in the Notice of Motion No.3188 of 2006. By Order dated 15th February, 2007, the Motion was made absolute in terms of prayer clause (a). Prayer clause (a) reads thus: "(a) that pending the hearing and final disposal of the Suit, the Court Receiver, High Court, Bombay be appointed Receiver of Flat Nos. 1, 2 and 4 situated on the ground floor Sajan Building, 2nd Perkhan Road, New Nagpada Road, Byculla, Mumbai 400 008 with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the powr to appoint the Plaintiffs as agents of the Receiver;" 5. Thereafter, Court Receiver filed Report 3 bearing No.101 of 2007, which came to be disposed of by another Learned Single Judge vide Order dated 12th July, 2007, which reads thus: P.C.: 1. The third parties, who are found in possession have appeared in Court in person. The third parties state that they occupy three of the suit premises independently. They were not parties when the order dated 15th February, 2007 was passed. They claim to have been residing in the said premises since about 1989. They also state that they have had disputes with the landlady-plaintiff. 2. They agree not to obstruct the Court Receiver in taking only formal possession of the suit premises as per the order dated 15th February, 2007. They also agreed and undertook that they shall not obstruct the Court Receiver from doing so. The statements are accepted. 3. The Court Receiver is ordered forthwith to take formal possession of the suit premises at this stage. 4. The Court Receiver shall not dispossess the said third parties and allow them to occupy the premises without security or royalty. S.O. to 1st September, 2007. 5. The third parteis are at liberty to adopt appropriate proceedings for modification or setting aside the order dated 15th February, 2007. The pendency of the Court Receiver shall not prevent them from doing so. Each of the parties have agreed to tender the rent allegedly payable by them to the Court Recevier. Despite the same, at this stage no orders to this effect are passed." 4 6. In view of the grievance made by the Plaintiffs, I have heard learned Counsel for the Plaintiffs and with his assistance, gone through the relevant orders and other materials placed before this Court. There is no dispute that the persons found in possession of the flat Nos. 1,2 and 4 are not parties to the suit nor were they heard when the Order dated 15th February, 2007 was passed. In view thereof, the Order dated 12th July, 2007 passed by the learned Single Judge protecting their rights with liberty to adopt appropriate proceedings for modification or setting aside the Order dated 15th February, 2007. Accordingly, third parties have filed two Chamber Sumons bearing Chamber Summons No.254 of 2008 and Chamber Summons No.260 of 2008 for adding them as parties to the Suit. 7. Learned Counsel for the third parties submits that after they are addded as parties to the Suit, they propose to take out appropriate proceedings seeking modification or for setting aside the Order dated 15th February, 2007. Keeping that in view and considering overall fact and circumstances of the case, so also submission of the learned Counsel for the Plaintiffs, I am satisfied that in order to protect the interest of the Plaintiffs, following 5 order shall meet the ends of justice. (a) Third party namely the Applicants in the Chamber Summons No.254 of 2008 and Chamber Summons No.260 of 2008 are directed to file undertaking in this Court within a period of two weeks from today stating that they are in possession of the respective tenaments giving names of the all the family members residing with them and further stating that they shall not part with possession and create any third party rights in the tenaments in their possession pending hering and final disposal of this proceedings and shall pay rent to the Plaintiffs, which the Plaintiffs shall accept without prejudice to his rights and contentions in the proceedings. The Order dated 12th July, 2007 stands modified only to this effect. (b) They shall also pay the arrears of rent, if any as demanded by the Plaintiffs. They shall also state on affidavit that they shall not make use of residential tenaments for any other purpose. They shall use the tenaments only for residential purpose. 6 8. With this observations, Notice of Motion is disposed of. 9. In view of this order passed today in the Notice of Motion No.2587/2007, Court Receiver’s Report bearing No.101 of 2007 stands disposed of. (D.B.BHOSALE,J) (D.B.BHOSALE,J) (D.B.BHOSALE,J)