1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIGINAL SIDE NOTICE OF MOTION NO.1165 OF 2006 IN SUIT NO.889 OF 2006 P.B. Enterprises & Anr. .... Plaintiffs Vs. Vishnu Moorthy Nayak & Ors. .... Defendants S/Shri Rajendra Satal i/b Pradeep Sharma in support for the Plaintiffs. Shri Deepak Lulia for Defendant Nos.1 and 3. CORAM: A.P. BHANGALE, J. DATED: APRIL 30, 2010 P.C: 1. Heard submissions. The motion was taken out with prayer for appointment of Court Receiver, High Court, Bombay under Order 40, Rule 1 of Civil Procedure Code with power to take possession of the suit flat and to appoint plaintiff No.2 as agent of the Court Receiver with further prayer for interim injunction to restrain defendant No.1 from alienating, encumbering and parting with possession or creating third party interest in respect of the 2 suit flat. Learned counsel for the plaintiffs invited my attention to the averments in the plaint, particularly to the alleged dispossession of the plaintiffs during the night intervening between 24-6-2004 to 25-6-2004. According to the plaintiffs, they were dispossessed without following due process of law and therefore civil suit was instituted in the Bombay City Civil Court in which an objection as to jurisdiction of the Court was taken. It is contended that the Court found that the suit was not triable by the Bombay City Civil Court on the ground that it is beyond the pecuniary jurisdiction of the said Court and therefore the plaint was returned on 15-6-2005, which was represented before this Court on 21-2-2006. It is not disputed that ad- interim injunction was not granted, as it was not pressed. 2. Be that as it may, according to the learned counsel for defendant Nos.1 and 3, during the pendency of the suit, the suit flat was already handed over to one Shri Akash Khetan under a registered leave and licence agreement. Further, according to the learned counsel, plaintiff No.2 had lodged a dispute with the Malad Police Station vide N.C. No.2312 3 of 2004 regarding disbursement of shares and accounts but no averment was made in that complaint regarding the alleged dispossession from the suit flat. Under these circumstances, admittedly, the plaintiffs have already lost possession of the suit flat and it is in possession of a third party under a registered leave and licence agreement. Of course, such physical occupation of the suit flat will have to be subject to final order that may be passed in the present suit. I think the plaintiffs can claim damages, if they succeed in the suit. According to the plaintiffs, they were forcibly dispossessed and were deprived of possession for a certain period in respect of the suit flat. At this stage of the suit, balance of convenience appears in favour of defendant Nos. 1 and 3 as they are the owners of the flat and according to them, the partnership of plaintiff No.1 is not duly registered so as to institute a suit. The plaintiffs have already lost physical possession/occupation of the flat. I think there is no question of any uncompensatable disadvantage to the plaintiffs as the parties will have to abide by the final decree that may be passed in the suit. Therefore, considering the prayer for injunction, as also the prayer for appointment 4 of Court Receiver, in my opinion, no exceptional case is made out to entertain the prayer for appointment of Court Receiver as Court Receiver can be appointed only when it is just and convenient to do so. In the facts and circumstances of the case and having regard to the lawful title of defendant No.3 to the suit flat as the owner thereof, it is not necessary to remove him or anybody who may have been inducted as lawful licencee under a registered agreement. 3. For all these reasons, I am not inclined to appoint Court Receiver as also to grant interim injunction as prayed for. The parties are at liberty to move for an early hearing considering that it is a suit under Section 6 of the Specific Relief Act. The notice of motion is dismissed. (A.P. BHANGALE, J.)