- 1 - ao924 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.924 OF 2010 M/s C.Champaklal & Co .. Appellant vs The Maharashtra Housing & Area Development Board & ors .. Respondents Mr.S.J.Chaurasia i.b M/s.Ashok Law Firm for Appellant Mr.S.P.Thorat for Respondent nos. 1 to 4. Mr.J.S.Kini i.b Mr.Suresh Dubey for Respondent no.5 (a) to 5 (d) CORAM: R.G.KETKAR, J DATE: 21st September, 2010 P.C. 1. Heard Mr.Chaurasia learned counsel for the appellant/original Plaintiff, Mr.S.P.Thorat, learned counsel for the respondent nos. 1 to 4 and Mr.J.S.Kini, learned counsel for respondent nos.5 (a) to 5(d). 2. This appeal is directed against the judgment and order dated 19th April,2010 passed by the learned Judge, City Civil Court, Greater Bombay in Notice of Motion No. 2287 of 2009. By that order, the learned Judge rejected the Notice of motion taken out by the appellant for - 2 - ao924 appointment of Court Receiver. 3. Mr.Chaurasia submitted that in order dated 6th April, 2002 the learned trial Judge had recorded the statement made oin behalf of Maharashtra Housing and Area Development Authority (MHADA) to the effect that the appellant herein which had applied for transit accommodation will be provided the same in lieu of the structure occupied by its employee Tukaram Pawar since deceased and that MHADA had accepted the request of the appellant and it will be given transit accommodation. It is the grievance of the appellant that despite making a solemn statement before the Court which was recorded in order dated 6th April, 2002 MHADA had not given transit accommodation to the appellant. He further submitted that subsequently by an order dated 6th April, 2005 Tukaram Pawar since deceased was impleaded as defendant no.5 in the suit. Subsequently, by an order dated 24th April, 2006 the learned Judge directed MHADA to maintain status quo with respect to the reconstructed accommodation till further orders. In that order, the learned Judge recorded that defendant no. 5 (a) to 5 (d) - 3 - ao924 are in possession of transit accommodation. 4. He further submitted that the appellant thereafter took out notice of Motion No.1015 of 2006 praying for temporary injunction restraining respondent nos. 1 to 4 (Original defendant nos. 1 to 4) from handing over possession of room nos. 13 and 14 or any other rooms in the newly constructed building to respondent no. 5 (a) to 5 (d) during the pendency of the suit. The said motion was rejected on 8th September, 2008. Against that the appellant preferred Appeal from Order No.1094 of 2009. The said appeal was disposed of on 9th December, 2009 permitting the appellant to withdraw notice of motion No. 1015 of 2006 with liberty to take out fresh notice of motion. Pursuant to this order, the appellant took out present Notice of motion which was dismissed by the impugned order dated 19th April, 2010. He therefore, submitted that the learned trial Judge committed error in not appointing Court Receiver as prayed for by the appellant. - 4 - ao924 5. On the other hand, learned counsel for the respondent supported the impugned judgment and order. 6. I have considered the submissions made by the learned counsel for the appellant. A perusal of the prayers (a) to (d) made in the notice of motion indicates that the said are in the nature of final reliefs which cannot be considered at this stage. By prayer (e) the appellant prayed for holding an inquiry into the conduct of respondent nos. 3 to 4 in allotting alternate permanent accommodation to respondent nos. 5 (a) to 5 (d). In prayer clause (f) the appellant prayed for appointment of Court Receiver. 7. It is the case of the appellant that the deceased Tukaram Pawar was employee of the appellant. However, respondent nos. 1 to 4accepted him as occupant and he was given transit accommodation. Subsequently, he was allotted permanent accommodation. The Court also recorded that Tukaram was not made party when order dated 6th April, 2002 was passed. It therefore, cannot be - 5 - ao924 said that the said order was binding on defendant no.5. 8. As noted earlier the appellant took out Notice of motion No.1015 of 2006 which was dismissed on 8th September, 2008. In para 5 of the said order it was observed that the appellant will have to first establish that he is entitled to a tenement in the newly constructed building in lieu of its alleged structure and that he has to further establish that his name was added in Annexure II showing the names of eligible persons who are entitled to have accommodation under Slum Rehabilitation Scheme. Unless and until the appellant proves his entitlement, he is not entitled to any relief. Against that order, the appellant preferred Appeal from Order No.1094 of 2009 which was withdrawn with liberty as aforesaid. 9. The learned trial Judge while dismissing the Notice of motion recorded that on 8th April, 2009 issues were framed. However, the appellant has not diligently led evidence and the motion was adjourned from time to time for recording evidence. When the motion was listed for - 6 - ao924 dismissal on account of failure on the part of the appellant to lead evidence, he took out present notice of motion. The trial Court also came to the conclusion that prima facie no case was made out for appointment of Court Receiver as the appellant is yet to establish its right. 10. After considering the submissions made by learned counsel appearing for the parties, and after going through the record I do not find that the learned Judge committed any error. The appellant claims that deceased Tukaram Pawar was its employee which fact is yet to be established. As per observations made by the learned trial Judge, the suit is kept for recording evidence of the appellant/plaintiff. It is expected of the appellant to proceed with his evidence. 11. In the result, appeal fails and the same is dismissed with no order as to costs. 12. In view of dismissal of Appeal from order, no orders - 7 - ao924 are necessary in the Civil Application and the same is dismissed with no order as to costs. R.G.Ketkar, J