1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8973 OF 2009 Dilip Vasant Jadhav Petitioner versus Girish @ Sayba Tribhuvan Patel Respondent Mr.D.S.Mhaispurkar for petitioner. Mr.J.S.Udaipuri for respondent. CORAM : A.S.OKA, J. DATE : 26th February 2010 PC :- 1. On the last date the petition was taken-up for final disposal. The petitioner is the original plaintiff and the respondent is the defendant. According to the case of the petitioner he was in exclusive possession of suit shop more particularly described in the plaint and was carrying on business therein. It is alleged that on 8th July 2009 the petitioner was forcibly dispossessed by the respondents without following due process of law. Therefore, the present suit has been filed under section 6 of the Specific Relief Act, 1963. In the suit a notice of motion was taken out by the present petitioner. The notice of motion was taken out for appointment of Receiver, High Court, Mumbai as the Court Receiver of the suit shop. A prayer was also made for temporary injunction. By the impugned order, the notice of motion has been rejected. 2 2. The learned counsel for the petitioner invited my attention to the averments made in the plaint and the documents placed on record along with the plaint. He pointed out that there is strong prima facie case made out to show that the petitioner was in possession of the suit shop till 8th July 2009 and on that date the respondent has forcibly dispossessed the petitioner. He submitted that trial Court has rejected the notice of motion without considering the voluminous documents produced on record. He, therefore, submitted that this is a fit case where the Receiver ought to have been appointed as a prima facie case of dispossession without following due process of law has been made out. Learned counsel for the respondent has submitted that the suit is ready for hearing and the suit itself can be disposed of rather than hearing the prayer for appointment of Court Receiver. He submitted that no prima facie case was made out and, therefore, for the reasons recorded, the Trial Court has rejected the prayer. He submitted that no interference is called for in the discretionary order passed by the Trial Court. 3. I have carefully considered the submissions. I have perused the impugned judgment and order. In paragraphs 12 and 13 of the impugned order, the Trial Court has cursorily referred to some of the documents. In paragraph 14 the learned Judge observed that the dispute between the plaintiff and the defendant about acquisition of the property requires full fledged trial and it cannot be decided merely placing documents on record. Thereafter in paragraph 17 the learned Judge observed that the 3 petitioner was required to be prove more than prima facie case and there were documents produced by both the parties which could be dealt with only after full fledged trial. Lastly the learned Judge observed that passing of order of appointment of Receiver will amount to passing a final decree. 4. The petitioner came to the Court with very serious allegation that he has been forcibly dispossessed. If a case is made out, in such a suit, the Court has power to appoint Court Receiver. If application for appointment of Court Receiver is made, the Court is required to consider the documents placed on record by both the parties and thereafter to come to a conclusion whether it is just and convenient to appoint the Court Receiver. The learned Trial Judge was not right when he observed in paragraph 18 that appointing Court Receiver will amount to passing a decree in favour of the petitioner without going into the merits of the case. The said approach is completely erroneous. Moreover, there is only a cursory reference in the impugned order to the documents placed on record by the parties and the learned Judge has jumped to the conclusion that for dealing with the documents placed on record a full fledged trial will be required. 5. Appointing Court Receiver does not necessarily amount to finally granting the prayer in the suit. In a given case, after appointing a Court Receiver, the Court may even appoint the defendant as an agent of the Court Receiver to occupy the suit premises. Therefore, it was the duty of 4 the learned Trial Judge to consider the documents and material produced by both the parties and thereafter to arrive at a conclusion whether a case for appointment of Court Receiver is made out. If a case for appointing the Court Receiver is made out, the learned Judge will have to consider other question as to whether any of the parties to the suit deserves to be appointed as agent of the Receiver to remain in possession. All this has not been considered by the Trial Court. Merely because suit can be heard expeditiously, it is no ground to throw out the application for appointment of Court Receiver when serious allegations of forcible dispossession have been made by the petitioners. 6. Hence, the only option available to this Court is to send back the matter to the Trial Court. Hence, I pass following order :- A) The impugned judgment and order dated 23rd September 2009 is quashed and set aside; B) Notice of Motion No.1522 of 2009 is restored to the file of Trial Court; C) The Trial Court is directed to hear and decide the notice of motion afresh in the light of observations made in this order; D) The notice of motion shall be decided as expeditiously as possible and in any event within a period of eight weeks from the date of 5 production of an authenticated copy of this order; E) All questions on merits are kept open; F) The writ petition is partly allowed in above terms; G) It is made clear that the order is set aside only to which prayer clauses (a) and (b) of the notice of motion is rejected and the order granting injunction in terms of prayer clause (c) will continue to operate. (A.S.OKA, J.)