1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4144 OF 2009 IN SUIT NO.2946 OF 1984 Kotecha Investment Corporation Ltd. .. Plaintiff Versus Mumtaz Begum & Ors. .. Defendants Mr.H.V.Chande for plaintiffs Mr.A.N.Maniyar for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 21st January 2009. P.C. . This matter was argued for some time on earlier occasions and even today. 2. Plaintiffs have filed this suit for possession. It is stated that the plaintiffs are seeking to recover the possession from the defendants on the basis that they are trespassers in respect of the suit premises. 2 3. It is urged on behalf of the plaintiffs that the suit filed by the defendants for declaration that they are tenants of the suit premises has been dismissed by the Small Causes Court, Mumbai. The appeal therefrom has been dismissed by the Appellate Bench and a writ petition under Article 227 of the Constitution challenging the Appellate Court decision has also been dismissed. 4. It is stated that during the pendency of this suit for possession, the Court Receiver has been appointed and the defendants are continued as agents of Court Receiver on payment of Rs.1000/- per month. 5. This is defendants’ motion complaining that the plaintiffs have disconnected the water supply to the premises which are in their occupation and, therefore, they are seriously 3 prejudiced and affected. 6. Mr.Maniyar appearing for defendants contended that they had separate water connection which was available for tenants all through out and suddenly the same has been disconnected resulting in inconvenience and prejudice being caused to the defendants. 7. On the other hand, Mr.Chande contends that there was no separate water connection and the plaintiffs have not disconnected the same. 8. In the plaintiffs’ suit for possession, this motion is moved allegedly on the ground that the plaintiffs have deprived the defendants of essential amenity like water. 9. Without deciding the wider controversy as to the maintainability of this motion, it was suggested to both sides that some arrangement can 4 be made which will be without prejudice to the rights and contentions of the plaintiffs so that the defendants do not suffer further inconvenience or are deprived of some basic amenity. It was not possible to arrive at a workable arrangement on account of the disputes between the parties. However, it was brought to my notice that the Watchman of the building has been supplied water through a water supply vendor and the charges thereof have been borne by the plaintiffs. This supply is made available to the watchman of the building on daily consumption basis. The supply is made bucket-wise. 10. It was suggested to the plaintiffs as to why this arrangement cannot be applied even to the defendants but the issue raised was after defendants have lost all through out and it is found that they have no title to the property, then, the charges for such supply should not be foisted upon the plaintiffs. 5 11. In my view, the defendants have failed to established even prima facie that they had separate water connection. However, until the suit is heard and disposed of, it would be desirable and in the interest of justice that, without prejudice to the rights and contentions of plaintiffs, the arrangement which is presently being done at site for the building watchman, should also be applied to the defendants. The defendants will get the same quantity of water from the water supplier who has been providing water to the watchman. The Receiver will allow the plaintiffs to withdraw from the sum deposited with the plaintiffs, expenses which have been incurred by the plaintiffs towards providing water supply through an outside agency. The amounts will be allowed to be withdrawn on production of proof of payment to the water supplier. This arrangement does not confer any right in respect of the premises on the 6 defendants and has been made purely on humanitarian grounds and considering that defendants are in physical possession of the premises. Notice of Motion is disposed of. 12. Place the suit for framing of issues on 4th February 2009. Needless to state that on issues being framed, directions will be immediately issued for trial of the suit. (S.C.Dharmadhikari, J)