* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 187 OF 2009 Anand Nilkant Sabnis & anr. .....Appellants V/s. Rajendra Satish Sabnis .....Respondent ====== Mr.Uday Warunjikar, adv.for appellants. Mr.M.S.Karnik, adv.for respondent. CORAM: SMT.R.P.SONDURBALDOTA, J. DATED: 7TH MAY, 2009. P.C. :- 1. Heard counsel for both sides. 2. The defendant in Short Cause Suit No. 596 of 2004 has filed this First Appeal to challenge correctness and legalilty of the judgment and order dated 25th September, 2008 by which the suit was practically decided ex-parte. The First Appeal is opposed by the respondent-original plaintiff. 3. The suit as filed originally was for an injunction simplicitor to restrain the appellants herein who are the uncle and cousin of the respondent from disturbing possession without following due process of law of Shop no.21 situated at Anand Building, Sitladevi Temple Road, Mahim, Mumbai-400 016 * 2 * where business of electronics, servicing and sales in the name and style of “Vaishali T.V.Centre” is carried out. Undisputedly, the tenancy in respect of these suit premises stands in the name of appellant no.1. The appellants in their written statement dispute that the respondent is in possession of the suit premises. According to them, appellant no.1 has been in possession of the suit premises and carrying on his business in the name of Vaishali T.V.Center and the respondent who is his nephew used to only assist him in the business. 4. The suit was filed on 31st January 2004. The trial court at the stage of the application for ad-interim reliefs, considering the rival claims of possession of the suit premises, appointed Court Receiver, High Court, Bombay as receiver of the premises. When the representative of the court visited the suit premises for the purpose of taking its physical possession after preparing inventory of the articles lying therein, he found that the appellants were in possession. He then made inventory of articles lying in the suit premises and took possession from the appellants on as- is-where-is basis. The appellants also handed over one key of the storewell, iron cupboard in the suit premises. Subsequently, pursuant to the orders passed in the appeal from order arising from the interim reliefs, auction was conducted * 3 * between the appellants and the respondent for agency of the Court Receiver. The respondent being the successful bidder was appointed agent of the Court Receiver to carry on the business on payment of royalty. The agency continued till disposal of the suit. Mr.Karnik the learned counsel for the respondent submits that the appellants had not been appearing before the trial court on several earlier dates also. Therefore, the court had no choice but to hear the matter ex- parte. Be that as it may, it was possible for the court to give a reasonably longer adjournment after the appellants failed to cross-examine the respondent, so that there could be no complaint as regards the opportunity of hearing. 5. Perusal of the impugned judgment shows that the moot question in the matter of possession of the suit premises has been dealt with in a most casual and cavalier manner. Mr.Warunjikar, the learned counsel for the appellants points out that the entire trial in the suit was concluded, including pronoucement of the judgment, within three days. The evidence in the suit had commenced on 23rd September, 2008. On that day, neither the appellants nor their advocate were present. Therefore, there could be no cross-examination of the respondent who was the only witness in the matter. Then, the respondent filed a precipe closing his evidence. The matter was posted immediately to the next day for the purpose of * 4 * arguments and on the third day the judgment was pronounced. According to Mr.Warunjikar, there was unholy haste shown by the learned trial judge in disposing off the suit without giving an opportunity to the appellants to participate in the trial. After visit of the court Receiver to the suit premises, the respondent had amended the plaint contending that the appellants during the night between 3rd February, 2004 and 4th February, 2004 had locked the premises thereby preventing the respondent from entering into it. He however did not ask for possession of the premises as according to him mere change of lock does not amount to dispossession from the suit premises. The learned trial judge while passing the final decree, has not considered the impact of these allegations in the plaint. It was necessary for him to refer to these averments added to to the plaint by way of amendment and consider their effect as regards the possession of the suit premises. There is one more defect as regards the impugned judgment and decree and that is as regards the operative order of discharging the Court Receiver, High Court, Bombay. Since, when the Court Receiver took possession of the suit premises the persons found therein were the appellants, it was necessary for the trial court to give specific directions, if, it was of the opinion that the possession of the suit premises should be with the respondent, that the Court Receiver should hand over * 5 * possession of the suit premises not to the appellants from whom it was taken, but to the respondent. Though the order of the trial court is not specific in this regard, the Court Receiver, on his own has chosen to hand over possession to the respondent. In these circumstances, the impugned judgment and decree cannot be sustained. The same is required to be set aside and the suit remanded to the Bombay City Civil and Sessions Court for re-hearing. During the pendency of the suit, the interim order of appointment of Court Receiver, High Court, Bombay and the respondent being an agent of the Court Receiver on payment of royalty as filed is also required to be revived. Hence, the order. O R D E R (i) The appeal is allowed. The impugned judgment and decree dated 25th September, 2008 passed by the City Civil and Sessions Court in Short Causes Suit No.596 of 2004 is set aside. The matter is remanded to the Bombay City Civil and Sessions Court for fresh hearing. (ii) The interim order of appointment of Court Receiver, High Court Bombay of the suit premises and the appointment of the respondent as agent of the Court Receiver on payment of the royalty as fixed, is also revived. (iii) Since, considering the fact that the impugned decree was in effect an ex-parte decree which is being set aside by this * 6 * order, the respondent is required to be compensated by way of costs. The appellants shall pay costs quantified at Rs.5,000/- (Rs.Five Thousand Only) to the respondent within a period of two weeks from today. (iv) The Bombay City Civil and Sessions Court to dispose off the suit expeditiously and as early as possible. [SMT.R.P.SONDURBALDOTA, J]