1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2583 OF 2007 IN SUIT NO. 1903 OF 2007 1. Mrs. Naina Kanji Nisar alias Naina N. Wade & anr. ... Plaintiffs Vs Rajesh Mansukhlal Khadawala. ... Defendants Mr. Shailesh Shah with Sapna Raichure i/b K.N. Tripathi & Co. for the plaintiffs. Mr. D.A. Barot for the defendant. CORAM: S.J. VAZIFDAR, J. DATED : 3RD DECEMBER, 2009 P.C.: This an action for trespass and possession of a premises admeasuring, according to the plaintiffs, 220 sq. ft. and, according to the defendant, 138 sq. ft. 2. It is not necessary to refer to the facts of the present case as well as the connected proceedings in detail. Suffice it to note that according to the 2 defendant, he was put in possession of three premises viz. shop Nos.10 and 24 and the suit shop being Shop No.23. There was a conducting agreement dated 23rd August, 1993 entered into between the parties which mentioned shop Nos.10 and 24, but not the suit shop. 3. In April 2004, the defendant filed Suit No.3680 of 2004 under section 6 of the Specific Reliefs Act, with respect to shop Nos.10 and 24. Two R.A.D. Suits were also filed by the defendant in respect of the said shops. The application for amendment in the R.A.D. Suits to include the suit shop was rejected. The defendant’s Writ Petition challenging the order was also rejected. Separate proceedings in respect of the suit shop have not been adopted by the defendant. 4. By an order dated 6th May, 2004 in an unnumbered Notice of Motion of 2004 in the said Suit (Lodging) No.1139 of 2004 under section 6 of the Specific Reliefs Act, S.C. Dharmadhikari, J. found, prima facie, in favour of defendant that he had been dispossessed. By the said order, a Court Receiver was appointed in respect of the said shop Nos.10 and 24 and the defendant has been appointed as the agent of the Court Receiver pursuant to the said order, but without being required to furnish security. The defendant, 3 however, is liable under the said order, to pay royalty. 5. The present suit is on title. The defendant’s contention is that the suit premises viz. shop No.23 formed an integral part of the arrangement between the parties in respect of shop Nos.10 and 24. The suit shop, according to the defendant, is a godown used in conjunction with and for the purpose of the restaurant business being conducted from the other two shops. Thus, according to the defendant, though there was no separate conducting agreement in respect of the suit shop, it formed a part of the arrangement in respect of the other two shops. This was the contention taken by the defendant in a letter dated 30th April, 2004. The reply thereto was almost two years’ later being a letter dated 13th March, 2006. This was probably due to the pendency of the other proceedings referred to earlier. I will presume, however that the defendant’s contention regarding the suit shop being a part of the arrangement between the parties qua shops No.10 and 24 is, prima facie atleast, well founded. In that event, the ends of justice require that the Court Receiver be appointed also of the suit shop. Further, on the basis of the defendant’s argument itself, the royalty fixed by the Court Receiver appointed by the said order dated 6th May, 2004, must be on the basis of the premises including the suit shop. A view contrary would 4 result in an order inconsistent with the order dated 6th May, 2004. 6. In the circumstances, the Notice of Motion is disposed of by the following order:- (i) Notice of Motion is made absolute in terms of prayer clause (a) except the portion bracketed in red. (ii) The defendant shall be appointed as agent of the Court Receiver, but without requiring to pay any security. The Court Receiver shall, however, fix the royalty on the basis of the suit premises as well as the premises in Suit (Lodging) No.1139 of 2004 being a common unit. For convenience, the amount shall be computed and deposited in the said Suit (Lodging) No.1139 of 2004. (iii) The parties are at liberty to approach the Court Receiver for having the royalty fixed afresh. Needless to add that the enhanced royalty on account of clubbing the suit premises shall be payable only from the date hereof. 5 (iv) Till the Court Receiver takes possession, there shall be an order in terms of prayer clause (b) except the words bracketed in red viz. “dealing with”.