1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.715 OF 2000 Gopal shankarlal Tiwari Petitioner versus Smt.Kamlabai Vitthaldas Bajaj and others Respondents Prathmesh Bhagrude i/by A.V.Anturkar for petitioner. S.M.Gowadkar for respondents 1 to 4. CORAM : A.S.OKA, J. DATE : 23rd April 2010 JUDGMENT : 1. By this petition under Article 227 of the Constitution of India, the petitioner has taken an exception to the orders passed below Exhibits 39 and 44 on 28th January 2000 by the learned Trial Judge. The first to fifth respondents are the plaintiffs and the sixth respondent is the Receiver appointed by the Trial Court. The petitioner is the defendant. 2. On 19th July 1999, in Civil Revision Application No.782 of 1999, by consent of the parties to the suit, the Trial Court was directed to appoint a Court Receiver. As per the said order, the Court Receiver was appointed by the Trial Court. An application was made by the petitioner at Exhibit-44 praying that the appointment of one Mr.Bhosale, Superintendent of Civil Court as Receiver be set aside. A grievance is made in the said 2 application that the Court Receiver has taken possession of a meter room below the staircase of building "Murlidhar Apartment". It was contended that in the sanctioned plan of the building, the space below the staircase has been shown as a meter room. It is pointed out that the Court Receiver prevented the officers of MSEB from installing electricity meters of the flats in the said room. It was contended that the said room is not a part of the temple in respect of which the Receiver has been appointed. Therefore, the second prayer made in the application was for directing the Court Receiver to open the said room. In the said application, a specific contention was raised that the said room below the staircase was not a part of the Temple of Murlidhar. The application was contested by the original plaintiff. It was contended that Murlidhar Apartment or the flat purchasers therein have no concern with the meter room. In short, a contention was raised that the room is a part of the temple. The Court Receiver also filed his reply and contended that the room being a part of the temple, he was placed in custody thereof. The application at Exhibit-39 was made by the Receiver for seeking certain directions. 3. The orders which are subject matter of challenge in this petition have been passed on the same day i.e. 20th January 2000. By the first order passed below Exhibit-39 on the same day, the Court Receiver was directed to take an action against the President and other office bearers of Vinayak Mitra Mandal. The Court directed that if the office bearers of Vinayak Mitra Mandal including the petitioner do not remove the articles kept in the temple by issuance of notice, then the Court Receiver should 3 move the concerned police station for an action for unauthorized use of the temple premises by the office of bearers of Vinayak Mitra Mandal. By another order, the application made by the petitioner at Exhibit-44 was rejected. The prayer for appointing another officer as Receiver was rejected and the prayer of removal of lock put on the room below the staircase was rejected. 4. As stated earlier, the challenge in this petition is to the aforesaid two orders. Prayer clause (b) of the petition is for staying the order passed below Exhibit-39. This Court granted interim relief in terms of prayer clause (b) but confined it to clause (3) of the said order by which Receiver was directed to move the concerned police station for taking an action against the petitioner and other office bearers of Vinayak Mitra Mandal. 5. The learned counsel for the petitioner submitted that the room below the staircase is not a part of the temple. He pointed out that the order of this Court appointing Court Receiver does not authorize the Court Receiver to take possession of any property and the Receiver was appointed only to make arrangements for managing day to day affairs of the temple. He submitted that in any case there was material on record to come to a conclusion that the room in question was not the part of the temple. He pointed out that in paragraph no.7 of the impugned order passed below Exhibit-44, the Trial Court has observed that as per agreement between M/s.Jalan Construction, the builders who have 4 constructed Murlidhar Apartment and the plaintiffs, the possession of the room below the staircase was handed over to the plaintiffs and, therefore, it is part of the property of the temple. He pointed out that though there is a reference to the agreement between the plaintiff and the developers, no such agreement was produced before the Trial Court and a copy of the said agreement which is purportedly executed before the Notary Public is placed on record of this petition along with the reply of the respondents. He submitted that in absence of said agreement being placed on record, no finding could have been recorded by the Trial Court as to whether the room below the staircase was part of the temple. 6. The learned counsel for the respondents-plaintiffs supported the impugned orders. He submitted that the flat purchasers of the building have not taken any action. He submitted that the petitioner-defendant claims to be one of the flat purchasers. He submitted that it is for the flat purchasers to take an action in that behalf. He, therefore, submitted that no interference is called for as the trial is almost over. 7. I have given careful consideration to the submissions. It will be necessary to advert to the order of this Court appointing Court Receiver. The order was passed by consent of the parties. The relevant part of the order reads thus :- "In view of this consent between the parties, in my opinion, it would be appropriate to direct the learned Civil Judge, J.D. Pune before whom R.C.S. No.1 of 1999 is pending to appoint either the Nazir of his Court or any other Officer 5 working in his Court as Receiver of the land on which temple is situated. The learned Trial Court shall also direct the Receiver to make arrangements for managing the day- today affairs of the temple and for safe custody of the property of the temple during the period the Receiver continues. The learned Trial Court is also directed to make this arrangement also during the pendency of the proceedings before the Charity Commissioner for registration of the trust in the sense, that in case ultimately the trust is registered as a public trust, the parties and the Charity Commissioner would be at liberty to move the Trial Court for suitable orders in that eventuality. It is made clear that in view of the fact that there is a dispute going on between the petitioner and the respondent regarding the property, while making an arrangement to operate as directed above, the Receiver to be appointed shall entrust day to day management of the temple to somebody other than the parties to the suit." On plain reading of the said order it is obvious that by consent, the Court Receiver was appointed of the property of the temple. The order clearly states that the Receiver shall be directed by the Trial Court to make arrangements of managing day to day affairs of the temple and for safe custody of the property of the temple. The later part of the order gives a direction to the Receiver to entrust the day to day management of the temple to someone other than the parties. Plain reading of the said order leaves no doubt that the Receiver appointed under the consent order passed by this Court was to take custody of the property of the temple. Therefore, the first contention of the learned counsel for the petitioner will have to be rejected. Hence, the question to be decided is whether the room below staircase forms part of temple. 8. While rejecting the application below Exhibit-44, in paragraph 7 of the impugned order, the learned Judge has referred to an agreement 6 between the plaintiffs and M/s.Jalan Constructions. There is no dispute that the said agreement was not placed before the Trial Court and a xerox copy of the alleged agreement has been produced in this Court by the respondent. The Receiver appointed by this Court can take possession of only that property which could be said to be the property of the temple. If the room below the staircase is not the property of the temple. the Court Receiver cannot take possession thereof. 9. The order below Exhibit-44 indicates that though a reference is made to agreement between the plaintiffs and the builder, the same agreement was not before the Court. Therefore, the petitioner had no opportunity to deal with the alleged agreement on which reliance has been placed by the plaintiffs. For deciding the crucial issue as to whether the room below the staircase forms part of the temple, an opportunity has to be granted to the petitioner to deal with the alleged agreement. As far as order passed below Exhibit-39 is concerned, the said direction seems to have been issued on the basis of certain action taken by the office bearers of Vinayak Mitra Mandal. There is a direction issued in clause (3) of the said order to the Court Receiver to take action against the office bearers of Vinayak Mitra Mandal. As far as petitioner is concerned, the said order was stayed by this Court as long back as in October 2000. The order was passed considering the contingency which arose at that time. Therefore, it is not necessary to disturb the interim arrangement made by this Court. 7 10. As far as order below Exhibit-44 is concerned, by setting aside the said order, an opportunity deserves to be granted to the respondents to produce the said agreement. An opportunity also deserves to be granted to the petitioner to deal with the said agreement. It is made clear that what survives for consideration is the prayer clause (B) of application at Exhibit-44. Hence, the petition is disposed of by passing following order. 11. ORDER :- A) As far as challenge to order passed below Exhibit-39 is concerned, ad-interim relief granted on 10th February 2000 will continue to operate till disposal of the suit with liberty to the Receiver or to the plaintiffs to seek appropriate directions from the Trial Court, if occasion arises; B) The order passed below Exhibit-44 is quashed and set aside. The learned Trial Judge will give an opportunity to the parties to file documents and to file affidavits, if any. Thereafter, the learned Trial Judge will have to decide the issue as to whether the room below the staircase forms part of the property of the temple. If the Court comes to the conclusion that it is the property of the temple, then the Receiver will be continue to possess the same. If the Court comes to the conclusion that the room below the staircase is not the property of the temple, it is obvious that appropriate directions will have to be issued in terms of prayer clause (B) of application at Exhibit-44. All contentions of the parties in that behalf are expressly kept open; 8 C) It is made clear that the Court will reconsider the application at Exhibit-44 only insofar as prayer clause (B) is concerned. The application at Exhibit-44 shall be decided as expeditiously as possible; D) The writ petition is partly allowed in the above terms with no order as to costs; E) It is clarified that this order will not operate as stay of the proceedings of the suit; F) In view of disposal of writ petition, Civil Application No.2100 of 2003 does not survive and stands disposed of as such. (A.S.OKA, J.)