1 942.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 942 OF 2011 Mr.Shivdayal Kanankmal Maheshwari. ... Appellant. V/s. Mr.Satyanarayan S/o. Kanakmal Maheshwari and others. ... Respondents. Ms.Fatima Khan with A.M.Saraodi for the appellant. R.S.Shekawat for respondent No.1. Ajay Formant with M.D.Pokale for respondent No.2. CORAM: R.M.BORDE, J. DATED : 16th November 2011. P.C. : The appellant is taking exception to the order passed on 16th July 2011 by the Judge, City Civil Court, Mumbai in Notice of Motion No.76/2011 taken out by defendant No.1 in S.C.Suit No. 218/2010 requesting the Court to direct the plaintiff and the Court Receiver to take necessary steps to protect the property being property admeasuring 1557.70 sq.mts approximately, Plot Survey No.35, Hissa No.7, City Survey No.119 situated at R.C.Marg, Chembur, Mumbai-74 and, if required, to fence the same at the costs of the defendants on such terms as the Court may deem fit and proper. 2 942.11-ao 2. The suit is presented by the plaintiff who is real brother of defendant No.1/ appellant herein seeking perpetual injunction restraining defendant No.1 from creating any third party rights in the suit property and from carrying out any work of construction including the construction of internal road in or upon the suit property. Initially, suit was presented by the plaintiff impleading only defendant No.1. However, defendant No.2, who is the owner of the property, tendered Chamber Summons No.257/2010 seeking his impleadment. The said chamber summons was allowed and defendant No.2 is impleaded as party to the suit. The order passed by the trial Court directing impleadment of defendant No.2 was subject matter of challenge in Writ Petition No.553/2010 filed by defendant No.1 which came to be dismissed by this Court on 28th July 2010. According to the plaintiff, defendant No.1 and plaintiff were carrying on joint business in the name of Commercial Agency at the suit premises, though defendant No.1 is shown as sole proprietor. It is also disclosed that defendant No. 1 presented suit bearing No.8237/1973 against the present defendant No.2, the owner of the property seeking decree of injunction restraining defendant No.2 from carrying out any construction of road on the suit property. Defendant No.1 also presented another suit bearing No. 2555/1992 against defendant No.2 seeking decree of injunction against defendant No.2 from obstructing possession of defendant No.1 (plaintiff therein) over the suit property. Both the suits presented by defendant No.1 were decided on 7th September 1995 and, in view of the statement made by defendant No.2 to the effect that he would not disturb the possession, use and occupation of defendant No.1 in respect of area in his possession, the Court was pleased to pass decree 3 942.11-ao accordingly. Liberty was granted to defendant No.2 to initiate legal proceeding and follow due process of law for eviction of defendant No. 1 from possession over the area of 1557.70 sq. meters. It is the case of defendant No.2 that he has initiated proceeding for eviction of defendant No.1. According to the plaintiff, defendant No.1 has joined hands with defendant No.2 and is trying to create third party rights in the suit property. Hence instant suit came to be filed seeking perpetual injunction. 3. The defendant No.2 got himself impleaded in the suit, resisted the suit by filing written statement and denied all adverse allegations. According to him, the plaintiff and defendant No.1, who are real brothers, by colluding with each other got the Receiver appointed in respect of the suit property. According to defendant No.2, he is the real owner of the suit property and the suit presented by the plaintiff is in collusion with defendant No.1 to defeat the rights of defendant No.2. According to defendant No.2, he has initiated proper legal action for eviction of defendant No.1 from suit property and his application for permission under section 22 of the Slum Act is presently pending before the competent authority after remand by the Slum Tribunal. It is also disclosed that previously defendant No.1 had presented suit bearing No.15/2005 against defendant No.2 which was dismissed by the Court. First appeal is preferred against the said order of dismissal and the same is pending before this Court. In the pending first appeal, a similar application was made by defendant No.1 which was turned down. In this view of the matter, it is contended by defendant No.2 that relief sought by defendant No.1 by tendering application in the pending first appeal, which has been rejected by this 4 942.11-ao Court, is being sought through the Receiver in the instant suit. Defendant No.2, therefore, requested for rejection of the application. The trial Court considering all relevant aspects of the matter and, more specifically, the fact that similar application was made in pending first appeal and was rejected by this Court, turned down the notice of motion presented by defendant No.1. 4. I have perused the judgment and order passed by the trial Court and I am in agreement with the reasons recorded by the trial Court in support of the final order. The contention raised by defendant No.2 that plaintiff and defendant No.1 got appointed the Receiver by colluding with each other appears to have some substance. Initially, the suit is presented by the plaintiff in the month of January 2010. Immediately thereafter, an application came to be presented under order II rule 2 of Code of Civil Procedure, 1908 (C.P.C.) which was considered by the trial Court and was rejected by order dated 27th January 2010. A notice of motion bearing No.1117/2010 was presented by the plaintiff seeking appointment of Receiver. The defendant No.1 without waiting for service of suit summons appeared in the matter sou-motu and filed consent terms on 27th January 2010 giving his consent for appointment of Court Receiver. The trial Court on the same date, considering the consent given by defendant No.1 and in absence of defendant No.2, directed appointment of Court Receiver. The defendant No.2, who is the owner of the property, is kept away from the litigation and the plaintiff and defendant No.1 persuaded trial Court to pass order directing appointment of Court Receiver. Thus, there appears to be substance in the contention of defendant No.2 that order of appointment of Court Receiver itself is collusive one. 5 942.11-ao 5. The defendant No.1 after dismissal of earlier suits presented in the years 1973 and 1992 presented another suit being Suit No.15/2005 against defendant No.2 claiming decree of perpetual injunction against him from causing any obstruction in his action of putting fencing to premises admesuring 1447.75 sq.mtr. bearing Survey No.35, Hissa No.7 situated at Shahaji Nagar, Azij Baug, Ram Krishna Marg, Chembur, Mumbai. The said suit presented by defendant No.1 came to be dismissed by the trial Court against which First Appeal No. 196/2011 is presented and pending before this Court. In the first appeal, defendant No.1 presented Civil Application No.377/2011 and requested the Court that pending hearing and final disposal of the first appeal the defendant No.1 be permitted to fence the property. The application tendered by defendant No.1 in pending first appeal has been rejected by this Court by order dated 9th February 2011. Since the defendant No.1 himself has not been permitted to fence the property, the plaintiff in collusion with defendant No.1 presented instant application in the suit seeking direction to the Receiver to do the act which has already been turned down by this Court in earlier litigation. 6. Apart from this aspect of matter, the Court Receiver reported to the trial Court that suit plot is required to be demarcated and for that purpose an appropriate application is to be made to the concerned City Survey Office by the owner of the concerned plot. Thus, it is clear that the disputed property is not yet demarcated. In the circumstances, the trial Court was perfectly justified in turning down the request made by defendant No.1 in pending suit. The order 6 942.11-ao passed by the trial Court is legal and proper and does not call for any interference. Appeal from order presented by the appellant is devoid of any substance. 7. In the result, appeal is dismissed. In view of dismissal of appeal from order, pending civil application does not survive and stands disposed of accordingly. (R.M.BORDE, J.)