1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2739 of 2007 Ravi Talwar .. Petitioner versus The Court Receiver, High Court, Mumbai & ors. .. Respondents ... Mr.D.D. Madon with Mr.Amit Bhave i/b M/s.Milan Bhise & Co. for the petitioner. Mr.Y.V. Divekar i/b M/s.Divekar & Co. for respondent no.9, 18 to 20, 24, 25, 30 to 35, 39, 41 to 44, 46, 47, 48, 53, 56, 58, 63, 70, 72, 74, 78, 81, 82, 84, 85, 87, 92, 100 and 103. Mr.Prashant Chavan with Mr.Vinay Bhate for respondent nos.4, 5, 7, 8, 10 to 15, 17, 26 to 30, 40, 45, 50 to 52, 57, 59, 60, 64 to 67, 71, 73, 76, 77, 78, 80, 83, 86, 93, 95, 97, 99, 101 and 102. CORAM : A.M.KHANWILKAR, J DATED : 12th August 2008 P.C.: 1. Heard counsel for the parties. 2 2. Rule. Rule made returnable forthwith by consent. Mr.Divekar and Mr.Chavan waives notice for the respondents. As short question is involved, petition is taken up for final disposal forthwith by consent. 3. This writ petition under Article 227 takes exception to the judgement and order passed by the City Civil Court dated 16th October 2006 in Notice of Motion no.3613 of 2005 in S.C. Suit no.7757 of 1975. By the said motion, the petitioners asked for the following relief: (a) this Hon’ble Court order and direct the Court Receiver to remove forcibly and with police help if necessary, the Respondent Nos.2 to 103 from the premises as stated in the title hereinabove. (b) that notwithstanding the Order dated 10.07.1980 appointing the Court Receiver, High Court Bombay in A.o. No.34 of 1979 in this suit and not withstanding the fact that the Court Receiver has taken possession of the suit property, i.e. known as Mathuradas Colony, Kole Kalyan, Santacruz(E), Mumbai, the Respondent Nos.2 to 103 have willfully, intentionally lowered the authority of this Hon’ble Court and interfered with and obstructed pending judicial proceedings and obstructed the administration of justice by disturbing and/or intermeddling with the possession of the Court Receiver and such acts of 3 criminal contempt be referred under section 15(2) of the Contempt of Courts Act 1971 to Hon’ble High Court at Bombay for cognizance and appropriate action. (c) appropriate ordered and directions be placed by this Hon’ble Court ordering and direction the Central Bureau of Investigation or any other investigation agency of the government as this Hon’ble Court may deem fit to enquire into the manner in which the Respondent Nos.2 to 103 having disturbed the possession of the Court Receiver. (d) for ad-interim relief in terms of prayers above. (e) for costs (f) for such and other reliefs as this court may deem fit and proper. 4. The principal controversy according to the petitioner which was put in issue was that the respondent nos.2 to 103 have come in possession of the disputed premises after the court receiver took over possession thereof. The court receiver took possession of the disputed premises on 12th August 1981 in terms of order passed by this court on 10th July 1980. According to the petitioner, the City Civil Court was obliged to pass appropriate order so as to preserve the property. There can be no difficulty in accepting this contention straight away. In as much as,if some third party surreptitiously comes into possession of the suit property after the court receiver has already taken 4 over possession thereof, will have to be summarily evicted so as to preserve the property.(see Usha H. Dalal Vs.Org.Systems & ors (2000) 1 SCC 742). 5. However, the fact whether the said respondents were already occupying the disputed property before the court receiver took over possession or that have been put in possession by a party to the suit inspite of court receiver was in possession thereof or that the said Respondents on their own entered the premises during the possession thereof with the court receiver will have to be addressed by the trial court in the first instance. 6. Dependent on that finding, the law exprounded by the Apex Court can be applied. If the court were to accept the stand of the respondents that they were already in possession of the disputed property prior to court receiver taking over possession thereof, then the City Civil Court would be right in relying on the decision of the Apex Court that such persons cannot be dispossessed by the court receiver or for that matter by the court by adopting summary procedure on the assumption that they are unauthorised occupants. The court receiver in that situation just as the owners of the property, will have to take recourse to remedy as may be permissible 5 by law to evict the said person. 7. Although divergent stand was taken by the parties regarding the factum of possession, as can be seen from paragraph nos.4 and 5 of the impugned order, the trial court has not addressed itself to the rival stand at all. The trial court was obliged to first record a clear finding on that factual position. If it were to hold that the respondent nos.2 to 103 have come in possession of the disputed premises much before the court receiver took possession thereof the conclusion reached by the trial court that no direction can be issued in that case can be sustained. On the other hand, if the court were to record that all or any of these persons have surreptitiously come in possession of the suit property only after the court receiver took possession thereof then their status would be that of rank trespasser and unauthorised occupants who will have to be summarily removed by the court receiver subject to such orders passed by the court in that behalf. Indeed, the issue as to whether even such persons can be evicted only after instituting suit before the court of competent jurisdiction may also be considered by the trial court, keeping in mind the settled legal position in that behalf. 6 8. In the circumstances, the appropriate course is to set aside the impugned judgement and order and to restore the Notice of Motion no.3613 of 2005 to the file of the City Civil Court in Suit no.5775 of 1995 for being decided afresh on its own merits in accordance with law. All questions in that behalf are left open to be decided on its own merits. 9. Accordingly, rule is made absolute. Impugned judgement and order is set aside. Instead, Notice of Motion no.3613 of 2005 in S.C. Suit no.5775 of 1995 is restored to the file of the trial court to be decided on its own merits in accordance with law, keeping in mind the observations made in the earlier part of this order. The restored Notice of Motion be decided expeditiously preferably by end of December 2008. No order as to costs. (A.M. KHANWILKAR, J)