1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3938 OF 2006 IN SUIT NO.3802 OF 1998 Laxmi Wd/o.Govindram Raheja .. Plaintiff Versus Rupchand Javerchand Rathod .. Defendant Mr.H.S.S.Murthy for plaintiff Mr.Bhandari i/b. M.B.Jadhav for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 12th March 2009. P.C. . This notice of motion was heard by me on 21st January 2009. This is a motion by the 2 plaintiff. Plaintiff prays that the defendant who is occupying the premises as an agent of Court Receiver be removed and the premises be given back to the plaintiff or else the plaintiff be appointed as Agent of Court Receiver during the pendency of the suit. 2. The matter was placed before me on 21st January 2009 at which time it was alleged that the premises are residential premises but are being used for commercial purposes viz., Beauty Parlour by third party. The Receiver was directed to ascertain factual possession by appointing his officer for inspection and verification at site and, thereafter, submit a report. The report of the Court Receiver was placed before me on 10th February 2009. On 10th February 2009, defendants stated before me that there is no commercial activity being undertaken nor are the premises used as Beauty Parlour. However, when reliance was placed upon some 3 photographs, defendant’s Advocate took time to file an affidavit. My attention was also invited by Mr.Murthy appearing for plaintiff to the complaint made by the Society with regard to alleged commercial activity. Mr.Bhandari for defendant stated that an undertaking would be filed in this Court by defendant in terms of the order dated 3rd March 2009. Today the undertaking of defendant is filed. The said undertaking dated 5th March 2009 is taken on record and accepted. 3. In the light of the statements made during the course of hearing and in the undertaking, it is clear that the defendant is in possession of the premises as an Agent of Court Receiver and the premises are being used as his residence. In such circumstances and when the allegations with regard to change of user are not substantiated, no reliefs can be granted in the notice of motion. Notice of motion is disposed 4 of subject to acceptance of the undertaking of the defendant. 4. Mr.Murthy appearing for plaintiff states that plaintiff is senior citizen and a lady. She is claiming right in the premises. Presently the defendant is in possession but the plaintiff is paying society charges. Therefore, she must be reimbursed the payment made till date, subject of course, to the final orders in the suit. He states that the premises are in a cooperative society. Rs.800/- per quarter is claimed as maintenance charges. They are being paid continuously and since pendency of the suit by the plaintiff. Therefore, from the amounts deposited with the Court Receiver some reasonable sum should be permitted to be withdrawn by the plaintiff. 5. Mr.Bhandari states that the suit is being expedited and the matter is at the stage of 5 framing issues. Defendant is ready to go for trial. In such circumstances, no amounts be allowed to be withdrawn. 6. Taking into account the totality of the facts and circumstances, in my view, interest of justice would be sub-served if an amount of Rs.1 lakh is allowed to be withdrawn by plaintiff. Receiver, therefore, to allow the plaintiff to withdraw the sum of Rs.1 lakh on production of authenticated copy of this order and needless to state that this withdrawal will be without prejudice to the rights and contentions of both sides and subject to final orders in the suit. Needless to add that if the plaintiff fails and defendants succeed, this Court will ask the plaintiff to bring back the sum with such interest as will be determined by this Court at that stage. Leaving open all these please, this withdrawal is permitted. Post the suit for framing issues on 23rd March 2009. 6 (S.C.Dharmadhikari, J)