1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATEJURISDICTION WRIT PETITION NO. 7453 OF 2011 Pinas Kolet ...Petitioner Versus Kamruddin Shaikh & Ors. ...Respondents Mr.V.R.Tripathi for the Petitioner Mr.S.R.Kadam for the Respondents CORAM:- R.Y.GANOO, J. DATED:- 15th SEPTEMBER, 2011. P.C. 1. Rule. 2. Rule made returnable forthwith. 3. Learned Advocate appearing on behalf of all respondents waives service of notice. By consent, petition is taken up for hearing. 4. Mr.Kamruddin K. Shaikh had filed suit in the City Civil Court at 2 Mumbai, being Short Cause Suit No.5824 of 1981 against Smt. Jijamubi Shaikh and others. In the said suit various properties were covered. Receiver, High Court, Bombay was appointed in respect of the suit properties, sometime in December, 1981. Thereafter the present petitioner intended to file suit in respect of Room No.1 forming part of the property covered by Short Cause Suit No.5824 of 1981 in respect of which the Receiver was already appointed. The petitioner wanted to seek declaration that he is a tenant in respect of suit room no.1. Consequently, he filed a declaratory suit in the Court of Small Causes being RAE Suit No.1510 of 2001. In the said suit, the petitioner treated Ms. Adeline Rodriques, Receiver, High Court, Bombay as party defendant and filed the suit. It is to be noted that the persons who claim to be landlords were not joined as party defendants. 5. Petitioner, on 5.12.2008 filed a Chamber Summons so as to seek leave of the City Civil Court for instituting the suit against the Receiver. That Chamber Summons was decided by the learned Judge of the City Civil Court by Order dated 14th February, 2011 and the said chamber summons came to be dismissed. Against that order 3 dated 14th February, 2011 the petitioner herein has filed this writ petition. 6. Learned Advocate for the petitioner submitted that permission to make Receiver as party can be obtained before the filing of the suit or during the pendency of the suit and therefore the learned Judge of the City Civil Court should have granted the said Chamber Summons. According to learned Advocate Mr. Tripathi, the learned Judge of the City Civil Court missed this point and the learned Judge rejected the chamber summons on the ground of delay. Learned Advocate Mr. Tripathi submitted that in the wake of the judgment in the case of Everest Coal Company Pvt. Ltd. vs. State of Bihar & Others reported in AIR 1977 SC 2304 the learned Judge of the City Civil Court should have granted the said Chamber Summons. He drew my attention to para 4 of the judgment to submit that the permission to seek leave of the court to make Receiver as Party could be obtained before filing of the suit or during the pendency of the suit. Learned Advocate for the respondents submitted that in the Court of Small Causes Landlord are not joined as party defendants. He also submitted that the Chamber Summons was taken out at the 4 belated stage and therefore the learned Judge of the City Civil Court was right in dismissing the Chamber Summons. Having perused the judgment in case of Everest Coal Company Pvt. Ltd., supra, I am inclined to accept the submission advanced by learned Advocate Mr. Tripathi for the petitioner. It is true that there has been a substantial delay in seeking permission to file suit against the Receiver. However, as the declaratory suit in the Court of Small Causes is pending, there is no difficulty in allowing the Chamber Summons. Possibly, judgment in the case of Everest Coal Company Pvt. Ltd. must not have been cited before the learned Judge and that resulted in rejection of the chamber summons. For the reasons, petition can be granted. Hence following order is passed to dispose of the petition. ORDER Impugned Order dated 14th February, 2011 passed in Chamber Summons no.Exhibit 6 is set aside and Chamber Summons is made absolute in terms of prayer clause (a). There shall be no order as to costs. (R.Y.GANOO, J.)