1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 225 OF 2008 IN SUIT NO. 3181 OF 1996 WITH NOTICE OF MOTION NO. 227 OF 2008 IN APPEAL NO. 225 OF 2008 IN SUIT NO. 3181 OF 1996 Vinod Shamji Patel and another .. Appellants Versus Premji Nanji Dudha @ Gohil and 10 others .. Respondents Mr. V. S. Kapse for the appellants Ms. Yogini Gada i/b Harakchand & Co. for respondent no.1. CORAM : B.H. MARLAPALLE & SMT. V. K. TAHILRAMANI, JJ. DATE : 25 th February, 2010 P.C.: 1. We have heard Mr. Kapse, learned counsel for the appellants. 2. Appellant No.1 is the tenant, whereas appellant No.2 is the third party. This appeal is directed against the order dated 13 th March, 2008 passed by the learned trial Judge on the Court Receiver’s Report No.52 2 of 2008. The said report was in respect of the visit of the Court Receiver to the suit premises on 4 th August, 1997. The learned Single Judge noticed that the tenants have created third party interest or, in some premises, no occupants were there and therefore those locked rooms were directed to be taken over by the Court Receiver and the occupants in Room Nos.6, 11 and 13 were directed to be evicted by the Court Receiver with the help of Police. The the appellants claimed to be occupants of Room No.11. 3. Mr. Kapse, learned counsel for the appellants submitted that the Court Receiver’s report itself indicated that as on 4.8.1997, both the appellants were in occupation of Room No.11 and it is not that only appellant no.2 was in occupation. He referred to the purported agreement dated 17 th May, 1994 between the appellants inter se so as to point out that appellant No.2 was staying in Room No.11 alongwith appellant No.1 as a paying guest and therefore, he could not be said to be an unauthorised occupant and more so, when appellant no.1 was also in occupation of the very same room as per the report of the Court receiver. It was also submitted by Mr. Kapse that even otherwise, the plaintiff has filed RAE Suit No. 162 of 2000 in the Court of Small Causes against the appellants for the possession of Room No.11 and the trial of the suit is in progress, inasmuch as, recording of evidence of the witnesses is going on. Mr. Kapse, therefore, submitted that while the suit is pending at the instance of the plaintiff, the learned trial Judge could not have directed the Court 3 Receiver to evict the appellants and more particularly the appellant No.2. 4. The learned counsel appearing for the plaintiff has opposed this appeal and has pointed out that the occupants in respect of Room Nos. 3, 6 and 13 had also filed an appeal challenging the very same impugned order and Appeal No. 116 of 2009 filed by the occupant of room No.3 came to be dismissed by this Court on 17 th July, 2009. As per her, even the appeal filed in respect of Room Nos. 6 and 13 have also been dismissed. 5. We have noted that appellant No.2 is a third party and he claims to be occupant of the room in his capacity as a paying guest of room No. 11, based on the agreement referred herein above. The said agreement itself states that it was for a period of 5 years from 17 th May, 1994 and thus, it expired on 16 th May, 1999. 6. In the notice of motion, interim relief in terms of prayer clauses (a) and (b) was already granted and therefore, the occupants were restrained from creating any third party interest in the suit premises/rooms. Thus, even if appellant No.2 claims that there was further agreement between the parties, the same would be in violation of the orders passed in the suit including the order dated 26 th November, 1998. We are, therefore, satisfied that appellant no.2, being third party, cannot challenge the 4 impugned order and on his own contentions, he was only a paying guest with appellant no.1. Hence this appeal must fail at the threshold. 7. It was also submitted by Mr. Kapse that the Court receiver was appointed for the purpose of collection of rent and the report submitted by him therefore, could not have been acted upon by the learned trial Judge. The earlier order dated 25 th June 1997 and subsequent order dated 24 th November, 1998 has been perused by us and we are not impressed by these submissions. 8. The appeal is dismissed. 9. Oral application for extension of interim relief is rejected, 10. Notice of Motion No. 227 of 2008 does not survive. (SMT. V. K. TAHILRAMANI, J.) (B.H. MARLAPALLE, J.)