1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.4211 OF 2008 IN FIRST APPEAL NO.2408 OF 2007 IN S.C.SUIT NO.2925 OF 1989 Shyamsingh Omkar Singh Bhatkaria .. Applicant V/s. Kanaiah J.Mansinghani .. Respondent Mr.Anil Yadav for the Appellant/Applicant. Mr.S.N.Vaishnawa i/b. N.N.Vaishnawa & Co. for the Respondent. CORAM : R.M.SAVANT, J. DATED : 11TH SEPTEMBER, 2008. P.C. By the above Civil Application, the Applicant/original Plaintiff prays for following reliefs : 2 “(a)Pending the hearing and final disposal of the Appeal, the Respondent be directed to deposit sum of Rs.10,000/- per month in this Hon'ble Court and and the Applicant be permitted to withdraw the same without any security; (b) Pending the hearing and final disposal of the Appeal, it be directed to put a lock on the suit premises; (c) Pending the hearing and final disposal of the Appeal, this Hon'ble Court be pleased to grant interim and ad-interim order and injunction restraining the Respondent and/or his agents, servants and/or any person or persons claiming through or under his from in any manner dealing with, disposing of, alienating, encumbering and/or parting with possession of the suit shop viz.Shop No.55, situated at Kesar Baug, Dr.Ambedkar Road, Dadar, Mumbai 400 014; (d) pending the hearing and final disposal of the Appeal, this Hon'ble Court be further pleased to appoint Court Receiver, High Court Mumbai, or some other fit and proper person to be the Receiver of the suit shop viz. Shop No.55, situated at Kesar Baug, Dr.Ambedkar Road, Dada, Mumbai – 400 014, with full power under order 40 Rule 1 of the Code of Civil Procedure, 1908; (e) Pending the hearing and final disposal of the Appeal, this Hon'ble Court be also pleased to appoint the Applicant/Original Plaintiff as Agent of the Court Receiver, 3 in addition to the appointment of Court Receiver, High Court, Mumbai, or some other fit and proper person to be the Receiver of the suit shop viz. Shop NO.55, situated at Kesar Baug, Dr.Ambedkar Road, Dadar, Mumbai 400 014, with full power under Order 40 Rule 1 of the Code of Civil Procedure, 1908;” 2. The First Appeal is directed against the Judgment and decree dated 21st February, 2003 passed by a learned Judge of the Bombay City Civil Court by which the suit filed by the Applicant came to be dismissed. The said suit was filed by the Applicant for a declaration that the Respondent/Defendant is a rank trespasser and for mandatory injunction directing the Defendant to remove himself from possession of the suit premises and for mesne profits and for other reliefs. The Plaint proceeded on the premise that the Respondent i.e. the Defendant in the said suit was the partner of the Appellant/Plaintiff in the business venture which is presently being carried out by the Respondent namely of a bakery. The plaint 4 contained an averment that though the partnership between the Plaintiff and the Defendant was unregistered, but infact they were carrying on the business in partnership. It is on the basis of the said averments in the plaint that the parties went to trial. The Trial Court considering the averments in the plaint wherein the Plaintiff has stated that the Respondent was his partner and that the said partnership was not registered, on the application of section 69 of the Indian Partnership Act held that the said suit as filed was not maintainable. 3. The Trial Court also recorded a finding that the Plaintiff had proved that the suit premises was his share in the assets of the firm. The Trial Court has therefore of the view that the Defendant who was his partner could not termed as a rank tresspasser. 5 4. By the above Civil Application, the Applicant apart from the other reliefs principally claims a relief that the Respondent should be directed to deposit an amount of Rs.10,000/- peroration in this Court on the ground that he is utilizing the premises of which the Applicant is a tenant. In the context of the decree of the Trial Court and the findings recorded therein, the reliefs sought by the Applicant in the above Civil Application, in my view, cannot be granted. If the Applicant ultimately succeeds in the First Appeal which is filed and which has been admitted, the Applicant would be entitled to claim mesne profits which he had prayed for before the Trial Court but which reliefs was rejected. 5. The Civil Application is therefore, rejected. 6. Considering the age of the Applicant, 6 hearing of the Appeal is expedited. 7. However, it is clarified that pending the hearing and final disposal of the above First Appeal, the Respondent would not create any third party rights or any other encumbrance in respect of the suit premises. [R.M.SAVANT, J.]