-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 409 OF 2008 APPEAL FROM ORDER NO. 409 OF 2008 APPEAL FROM ORDER NO. 409 OF 2008 IN IN IN RECEIVER’S REPORT DATED 02/03/2007 RECEIVER’S REPORT DATED 02/03/2007 RECEIVER’S REPORT DATED 02/03/2007 IN IN IN SHORT CAUSE SUIT NO. 4109 OF 1980 SHORT CAUSE SUIT NO. 4109 OF 1980 SHORT CAUSE SUIT NO. 4109 OF 1980 Asharam Tiwari (since deceased) Asharam Tiwari (since deceased) Asharam Tiwari (since deceased) through LRs : through LRs : through LRs : 1. Mrs. Kalavatidevi A Tiwari & Ors. .. Appellants. 1. Mrs. Kalavatidevi A Tiwari & Ors. .. Appellants. 1. Mrs. Kalavatidevi A Tiwari & Ors. .. Appellants. (Org.Defendants) (Org.Defendants) (Org.Defendants) V/s. V/s. V/s. 1. Harish Gulabdas Shah & others. .. Respondents. 1. Harish Gulabdas Shah & others. .. Respondents. 1. Harish Gulabdas Shah & others. .. Respondents. (Org.Plaintiffs) (Org.Plaintiffs) (Org.Plaintiffs) --- --- --- Mr.Pravin Samdhani with Mr.Pratik Seksaria & Abhishek Mr.Pravin Samdhani with Mr.Pratik Seksaria & Abhishek Mr.Pravin Samdhani with Mr.Pratik Seksaria & Abhishek Sawant i/by M/s.Wadia Gandy and Co. for the Appellants. Sawant i/by M/s.Wadia Gandy and Co. for the Appellants. Sawant i/by M/s.Wadia Gandy and Co. for the Appellants. Mr.Anil Gulabdas Shah, the Respondent No.2, in- person. Mr.Anil Gulabdas Shah, the Respondent No.2, in- person. Mr.Anil Gulabdas Shah, the Respondent No.2, in- person. --- --- --- CORAM : SMT.R.P.SONDURBALDOTA, J. CORAM : SMT.R.P.SONDURBALDOTA, J. CORAM : SMT.R.P.SONDURBALDOTA, J. DATED : 26TH AUGUST, 2008. DATED : 26TH AUGUST, 2008. DATED : 26TH AUGUST, 2008. P.C.: P.C.: P.C.: . This appeal arises out of the order dated 23rd . This appeal arises out of the order dated 23rd . This appeal arises out of the order dated 23rd January, 2008 passed by the Bombay City Civil Court and January, 2008 passed by the Bombay City Civil Court and January, 2008 passed by the Bombay City Civil Court and the report made by the Receiver dated 2nd March, 2007. the report made by the Receiver dated 2nd March, 2007. the report made by the Receiver dated 2nd March, 2007. The order has been a common order on Receiver’s report The order has been a common order on Receiver’s report The order has been a common order on Receiver’s report and four Notices of Motion taken out by the defendants. and four Notices of Motion taken out by the defendants. and four Notices of Motion taken out by the defendants. 2. The appellants are the original defendants. 2. The appellants are the original defendants. 2. The appellants are the original defendants. -: 2 :- 3. The respondents filed the instant suit in the 3. The respondents filed the instant suit in the 3. The respondents filed the instant suit in the month of July, 1980 for possession of a piece of land month of July, 1980 for possession of a piece of land month of July, 1980 for possession of a piece of land admeasuring 133 square yards from Asharam Tiwari (since admeasuring 133 square yards from Asharam Tiwari (since admeasuring 133 square yards from Asharam Tiwari (since deceased). It is alleged in the suit that Asharam had deceased). It is alleged in the suit that Asharam had deceased). It is alleged in the suit that Asharam had encroached upon the suit property and constructed three encroached upon the suit property and constructed three encroached upon the suit property and constructed three chawls thereon and inducted several persons into the chawls thereon and inducted several persons into the chawls thereon and inducted several persons into the chawls. By the order dated 8th of July, 1980, the Court chawls. By the order dated 8th of July, 1980, the Court chawls. By the order dated 8th of July, 1980, the Court Receiver, High Court, Bombay was appointed as receiver in Receiver, High Court, Bombay was appointed as receiver in Receiver, High Court, Bombay was appointed as receiver in respect of the suit property with a specific direction respect of the suit property with a specific direction respect of the suit property with a specific direction not to dispossess the occupants of the structure or any not to dispossess the occupants of the structure or any not to dispossess the occupants of the structure or any one from the premises with further direction to appoint one from the premises with further direction to appoint one from the premises with further direction to appoint the occupants as agent of the court receiver and recover the occupants as agent of the court receiver and recover the occupants as agent of the court receiver and recover occupation charges from the occupants. occupation charges from the occupants. occupation charges from the occupants. 4. During the pendency of the suit Asharam died. 4. During the pendency of the suit Asharam died. 4. During the pendency of the suit Asharam died. There was delay on the part of the respondents in taking There was delay on the part of the respondents in taking There was delay on the part of the respondents in taking out chamber summons for bringing legal heirs of the out chamber summons for bringing legal heirs of the out chamber summons for bringing legal heirs of the deceased Asharam on record. As a consequence, the suit deceased Asharam on record. As a consequence, the suit deceased Asharam on record. As a consequence, the suit was dismissed as having been abated. Therefore, the was dismissed as having been abated. Therefore, the was dismissed as having been abated. Therefore, the appellants took out notice of motion being Notice of appellants took out notice of motion being Notice of appellants took out notice of motion being Notice of Motion No.3246 of 1999, praying that the order dated 19th Motion No.3246 of 1999, praying that the order dated 19th Motion No.3246 of 1999, praying that the order dated 19th February, 1998, dismissing the suit on the ground of February, 1998, dismissing the suit on the ground of February, 1998, dismissing the suit on the ground of abatement be set aside and the suit be restored to file. abatement be set aside and the suit be restored to file. abatement be set aside and the suit be restored to file. By prayer clause (b), the respondents sought the setting By prayer clause (b), the respondents sought the setting By prayer clause (b), the respondents sought the setting aside of the abatement and joining the respondents in the aside of the abatement and joining the respondents in the aside of the abatement and joining the respondents in the -: 3 :- notice of motion as party defendants in the suit. The notice of motion as party defendants in the suit. The notice of motion as party defendants in the suit. The other relief sought in the notice of motion was for other relief sought in the notice of motion was for other relief sought in the notice of motion was for deleting the name of Asharam and permission for deleting the name of Asharam and permission for deleting the name of Asharam and permission for consequential amendment and condonation of delay in consequential amendment and condonation of delay in consequential amendment and condonation of delay in taking out the notice of motion. This notice of motion taking out the notice of motion. This notice of motion taking out the notice of motion. This notice of motion was heard and disposed off by the order dated 23rd April, was heard and disposed off by the order dated 23rd April, was heard and disposed off by the order dated 23rd April, 1999; by which the notice of motion was dismissed with 1999; by which the notice of motion was dismissed with 1999; by which the notice of motion was dismissed with costs. It was, however, clarified in the order that costs. It was, however, clarified in the order that costs. It was, however, clarified in the order that earlier order dated 18th of February, 1998 records earlier order dated 18th of February, 1998 records earlier order dated 18th of February, 1998 records abatement of proceedings and it should not be read as abatement of proceedings and it should not be read as abatement of proceedings and it should not be read as dismissal of the suit. By the same order, the chamber dismissal of the suit. By the same order, the chamber dismissal of the suit. By the same order, the chamber summons taken out by the developer for joining him as summons taken out by the developer for joining him as summons taken out by the developer for joining him as party defendant to the suit and the notice of motion that party defendant to the suit and the notice of motion that party defendant to the suit and the notice of motion that was taken out for some interim relief came to be was taken out for some interim relief came to be was taken out for some interim relief came to be dismissed. With dismissal of the notice of motion, the dismissed. With dismissal of the notice of motion, the dismissed. With dismissal of the notice of motion, the court discharged the Court Receiver, High Court, Bombay court discharged the Court Receiver, High Court, Bombay court discharged the Court Receiver, High Court, Bombay without taking accounts and directed him that the without taking accounts and directed him that the without taking accounts and directed him that the possession of the suit property be handed over to the possession of the suit property be handed over to the possession of the suit property be handed over to the heirs and legal representatives of the deceased Asharam heirs and legal representatives of the deceased Asharam heirs and legal representatives of the deceased Asharam as the possession had been taken from Asharam. as the possession had been taken from Asharam. as the possession had been taken from Asharam. 5. Since the respondents’ prayer for setting aside 5. Since the respondents’ prayer for setting aside 5. Since the respondents’ prayer for setting aside the abatement of the suit had been rejected, they the abatement of the suit had been rejected, they the abatement of the suit had been rejected, they preferred an appeal to this court being Appeal from Order preferred an appeal to this court being Appeal from Order preferred an appeal to this court being Appeal from Order No. 605 of 1999. The appeal was allowed by the order No. 605 of 1999. The appeal was allowed by the order No. 605 of 1999. The appeal was allowed by the order dated 14th of August, 2006. The order dated 23rd of dated 14th of August, 2006. The order dated 23rd of dated 14th of August, 2006. The order dated 23rd of -: 4 :- April, 1999 was set aside and the respondents’ notice of April, 1999 was set aside and the respondents’ notice of April, 1999 was set aside and the respondents’ notice of motion no. 3246 of 1999 was granted in terms of the motion no. 3246 of 1999 was granted in terms of the motion no. 3246 of 1999 was granted in terms of the prayer clauses (a) to (g). The respondents were prayer clauses (a) to (g). The respondents were prayer clauses (a) to (g). The respondents were permitted to amend the plaint so as to bring the heirs of permitted to amend the plaint so as to bring the heirs of permitted to amend the plaint so as to bring the heirs of the deceased Asharam on record within a period of three the deceased Asharam on record within a period of three the deceased Asharam on record within a period of three weeks from the date of the order. Further by the said weeks from the date of the order. Further by the said weeks from the date of the order. Further by the said order, hearing of the suit came to be expedited. order, hearing of the suit came to be expedited. order, hearing of the suit came to be expedited. Pursuant to the order, the respondents carried out Pursuant to the order, the respondents carried out Pursuant to the order, the respondents carried out amendment to the suit to bring heirs and legal amendment to the suit to bring heirs and legal amendment to the suit to bring heirs and legal representatives of the deceased Asharam on record. representatives of the deceased Asharam on record. representatives of the deceased Asharam on record. 6. The order of this Court came to be challenged by 6. The order of this Court came to be challenged by 6. The order of this Court came to be challenged by the appellants by preferring a special leave petition the appellants by preferring a special leave petition the appellants by preferring a special leave petition being special leave petition No.19344 of 2006 before the being special leave petition No.19344 of 2006 before the being special leave petition No.19344 of 2006 before the Honourable Supreme Court, in which the following order Honourable Supreme Court, in which the following order Honourable Supreme Court, in which the following order dated 4th of December, 2006 has been passed. dated 4th of December, 2006 has been passed. dated 4th of December, 2006 has been passed. "Issue notice confined to the question whether "Issue notice confined to the question whether "Issue notice confined to the question whether the application made on 28.7.1998 for setting the application made on 28.7.1998 for setting the application made on 28.7.1998 for setting aside the order of abatement was barred in view aside the order of abatement was barred in view aside the order of abatement was barred in view of notification dated 6.7.1998. Stay in the of notification dated 6.7.1998. Stay in the of notification dated 6.7.1998. Stay in the meantime." meantime." meantime." 7. During the period intervening 14th August, 2006 7. During the period intervening 14th August, 2006 7. During the period intervening 14th August, 2006 and 04th December, 2006, the suit was appearing in and 04th December, 2006, the suit was appearing in and 04th December, 2006, the suit was appearing in -: 5 :- regular course before the City Civil Court. On 8th of regular course before the City Civil Court. On 8th of regular course before the City Civil Court. On 8th of November, 2006 it came to be dismissed for default. November, 2006 it came to be dismissed for default. November, 2006 it came to be dismissed for default. Therefore, the Court Receiver, High Court, Bombay made Therefore, the Court Receiver, High Court, Bombay made Therefore, the Court Receiver, High Court, Bombay made his report dated 2nd of March, 2007, seeking direction his report dated 2nd of March, 2007, seeking direction his report dated 2nd of March, 2007, seeking direction whether in view of the dismissal of the suit, he should whether in view of the dismissal of the suit, he should whether in view of the dismissal of the suit, he should hand over possession of the suit property. This report hand over possession of the suit property. This report hand over possession of the suit property. This report of the court receiver, as already mentioned above, came of the court receiver, as already mentioned above, came of the court receiver, as already mentioned above, came to be disposed off by the impugned order. to be disposed off by the impugned order. to be disposed off by the impugned order. 8. The appellants contend that while allowing the 8. The appellants contend that while allowing the 8. The appellants contend that while allowing the appeal from order, this court has not restored the order appeal from order, this court has not restored the order appeal from order, this court has not restored the order inresepct of the discharge of the court receiver. inresepct of the discharge of the court receiver. inresepct of the discharge of the court receiver. Therefore, though the respondents were allowed to bring Therefore, though the respondents were allowed to bring Therefore, though the respondents were allowed to bring heirs of the deceased Asharam on record by setting aside heirs of the deceased Asharam on record by setting aside heirs of the deceased Asharam on record by setting aside the abatement, the court receiver stood discharged and it the abatement, the court receiver stood discharged and it the abatement, the court receiver stood discharged and it was necessary for him to hand over possession of the suit was necessary for him to hand over possession of the suit was necessary for him to hand over possession of the suit property, as per the order dated 23rd of April, 1999 property, as per the order dated 23rd of April, 1999 property, as per the order dated 23rd of April, 1999 passed by the Bombay City Civil Court. It is difficult passed by the Bombay City Civil Court. It is difficult passed by the Bombay City Civil Court. It is difficult to accept the submission of the appellants that while to accept the submission of the appellants that while to accept the submission of the appellants that while allowing the appeal from order the order dated 23rd allowing the appeal from order the order dated 23rd allowing the appeal from order the order dated 23rd April, 1999, in respect of the discharge of the court April, 1999, in respect of the discharge of the court April, 1999, in respect of the discharge of the court receiver, was not restored by the High Court. Para -8 of receiver, was not restored by the High Court. Para -8 of receiver, was not restored by the High Court. Para -8 of the order categorically states that the impugned judgment the order categorically states that the impugned judgment the order categorically states that the impugned judgment and order is set aside and notice of motion no. and order is set aside and notice of motion no. and order is set aside and notice of motion no. 3246/1998 is made absolute in terms of prayer clauses (a) 3246/1998 is made absolute in terms of prayer clauses (a) 3246/1998 is made absolute in terms of prayer clauses (a) to (g). The order discharging the court receiver has to to (g). The order discharging the court receiver has to to (g). The order discharging the court receiver has to -: 6 :- be treated as an integral part of the order dated 23rd be treated as an integral part of the order dated 23rd be treated as an integral part of the order dated 23rd April, 1999, though that order was not strictly passed on April, 1999, though that order was not strictly passed on April, 1999, though that order was not strictly passed on the notice of motion. It is to be noted that the order the notice of motion. It is to be noted that the order the notice of motion. It is to be noted that the order dated 14th of August, 2006 of this court does not exclude dated 14th of August, 2006 of this court does not exclude dated 14th of August, 2006 of this court does not exclude any portion of the impugned order dated 23rd April, 2006 any portion of the impugned order dated 23rd April, 2006 any portion of the impugned order dated 23rd April, 2006 from its compass. The learned trial Judge while from its compass. The learned trial Judge while from its compass. The learned trial Judge while considering the report of the court receiver has taken considering the report of the court receiver has taken considering the report of the court receiver has taken this aspect into consideration. In addition it is seen this aspect into consideration. In addition it is seen this aspect into consideration. In addition it is seen there are several litigations between the parties pending there are several litigations between the parties pending there are several litigations between the parties pending in various courts. The order enumerates two special in various courts. The order enumerates two special in various courts. The order enumerates two special leave petitions pending in the Supreme Court and four leave petitions pending in the Supreme Court and four leave petitions pending in the Supreme Court and four petitions pending in this court. In these circumstances, petitions pending in this court. In these circumstances, petitions pending in this court. In these circumstances, even otherwise, it is necessary to continue the order of even otherwise, it is necessary to continue the order of even otherwise, it is necessary to continue the order of the Court Receiver, High Court, Bombay so as to protect the Court Receiver, High Court, Bombay so as to protect the Court Receiver, High Court, Bombay so as to protect the suit property. the suit property. the suit property. 9. In the result, the appeal from order fails and it 9. In the result, the appeal from order fails and it 9. In the result, the appeal from order fails and it is hereby dismissed. is hereby dismissed. is hereby dismissed. (Smt. R.P.SondurBaldota,J.) (Smt. R.P.SondurBaldota,J.) (Smt. R.P.SondurBaldota,J.) ..... ..... .....