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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2898 OF 2003 IN SUIT NO. 2451 OF 2003 Kalikaprasad M. Soni .. Plaintiff. vs. Shivshankar C. Soni .. Defendant . Mr. O.S. Kutty for plaintiff. Mr. K.K. Pandey for defendant. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. CORAM : S.U.KAMDAR, J. DATE : 1st February, 2006. DATE : 1st February, 2006. DATE : 1st February, 2006. P.C. . The present notice of motion has been taken out for appointment of receiver and injunction and also seeks a prayer that the defendant should be directed to deposit in this court an amount of Rs. 90,000/- due for the period from April, 2002 to June, 2003 at the rate of Rs. 6,000/- per month being the arrears of compensation/mesne profits with liberty to the plaintiff to withdraw the same. It is the case of the plaintiff that the plaintiff became tenant in respect of a premises admeasuring 280 sq. ft. in the year 1975. It is the case of 2 the plaintiff that subsequently in the year 1980 the premises were in dilapidated conditions and since the same needed urgent repairs, the plaintiff got the said premises repaired and thereafter the whole premises was divided into three shops, the first shop with 60 sq. ft. second shop with 70 sq. ft. and the third shop with 150 sq. ft. It is further case of the plaintiff that the defendant was employed as an employee by him in respect of one of the business known as Vinod Cold Drinks & Sugarcane Juice ran from shop no. 1 marked in red in Exhibit A to the plaint. It is the case of the plaintiff that subsequently in 1989 the plaintiff purchased the aforesaid premises i.e. all three shops from the original owner by an agreement dated 29.6.1989. It is his case that after the defendant was employed in employment and when he was looking after one of the shops the defendant surreptitiously obtained a Shops and Establishments licence in his name and police license also in his own personal name as if he is running the said business of Vinod Cold Drinks & Sugarcane Juice and not the plaintiff herein. The plaintiff has therefore submitted that the defendant is a rank trespasser in respect of the suit property and thus order of receiver and injunction should be made. 2. The learned counsel appearing for the defendant has tendered compilation of documents and 3 an affidavit in reply. The learned counsel for the defendants contends that the shop premises being all the three shops were jointly constructed by the plaintiff and the defendant and one of the premises was given to the defendant and thus the defendant is in possession of the said premises as owner thereof since he has jointly constructed with plaintiff. In the entire compilation there is not an iota of evidence or material to show that there is a joint construction. In fact the learned counsel for the defendant has fairly conceded that there is no material to show that there was a joint construction. However, on the perusal of the compilation it is clear that there are documents on record to show that the defendant is in possession of one of the shop premises. Whether he has surreptitiously obtained the shops and establishment licence and police licence is required to be decided at the hearing of the suit. The defendant had filed a suit in City Civil Court at Bombay being Suit No. 2249 of 2002 and had obtained an order that he should not be dispossessed without due process of law. In my prima facie opinion the defendant is a rank trespasser in respect of the suit premises. He has no title of any nature whatsoever and his case that he is a joint owner in respect of the said premises cannot be accepted because there is no material or any evidence of any nature whatsoever to even accept prima facie case of the defendant 4 herein. In the aforesaid circumstances, I am of the opinion that in the present case the following relief is required to be granted. . The Court Receiver, High Court, Bombay is appointed in terms of prayer clause (c) of the motion. Till the Receiver takes charge, there shall be also an injunction in terms of prayer clause (a). The Receiver is directed not to dispossess the defendant herein and appoint the defendant as his agent on such terms and conditions of security and compensation as the Receiver may deem fit and proper and in an event the defendant is not willing to take agency agreement, the Receiver is directed to take physical possession thereof and appoint the highest bidder and in such an event the plaintiff will be entitled to bid and if the plaintiff’s bid is found to match the highest bidder, then the plaintiff can be appointed as an agent of the Court Receiver. Motion disposed of accordingly. No order as to costs.