-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 800 OF 2007 IN NOTICE OF MOTION NO. 601 OF 2007 IN SUIT NO. 3505 OF 1998 WITH NOTICE OF MOTION NO. 4686 OF 2007 Jabir Habib Jagrala, age 44 years, ) Room No.4, Siddheshwar Chawl, Near Lok Chamber, ) Opp. Anjali Gas, Marol Maroshi Road, Marol Village, ) Mumbai-400 059 )...Appellant versus 1. Ishaq Yusuf, age 52 years, ) 2. Shoaib Haji Abdul Rahim, age 47 years, ) 3. Farooq Sharif Patel, age 47 years, ) carrying on business at Everjoy Apartment, ) shop Nos. 1 to 3, Marol Village, Andheri (East) ) Mumbai-400 057 ) 4. Abbas Peer Mohamed, age 60 years, ) Gulshan Co-op. Housing Soc. Ltd., ) Building No. C-1, Flat No.7, Andheri Versova ) Yari Road, Mumbai-400 060 )..Respondents Mr. Y.S. Jahagirdar, Senior Advocate, instructed by Mr. A.G. Damle, for the appellant. Mr. T.N. Subramanian, Senior Advocate, with Mr. A.C. Singh, instructed by Mr. D.R. Shah, for the respondents. CORAM: R.M.S. KHANDEPARKAR & P.B. MAJMUDAR, JJ. DATE: JUNE 11, 2008. -2- ORAL JUDGMENT: (Per P.B. Majmudar, J.) Challenge in this appeal is to the order dated September 19, 2007, passed by the learned single Judge in Notice of Motion No. 601 of 2007 in Suit No. 3505 of 1998. By the aforesaid order, the learned single Judge allowed the Notice of Motion in part and the appointment of the second defendant (appellant herein) as an agent of the Court Receiver made as per the order passed in below Notice of Motion No. 2729 of 1997 is cancelled and the plaintiffs were appointed as agents of the Court Receiver on the terms and conditions on which the second defendant was appointed as an agent of the Court Receiver by an order dated 25th August, 1999. 2. The respondent Nos. 1 to 3 herein has filed the aforesaid suit No. 3505 of 1998 for dissolution of the partnership firm. The partnership firm was carrying on business by the name M/s. Cafe Marol. The partnership was carried on by the plaintiffs and defendant No.1. The present appellant is defendant No.2 in the suit. The learned single Judge of this Court passed an order dated 28th August, 2000 in Notice of Motion No. 2729 of 1998, by which the plaintiffs and defendant No.1 were restrained from disturbing the peaceful possession of defendant No.2 of the suit premises as it was the case of defendant No.2 in the said Notice of Motion that he is lawfully occupying the premises as a “tenant” and, therefore, his possession cannot -3- be disturbed without following the due process of law. The learned single Judge decided the said Notice of Motion by holding that since defendant No.2 has already moved the Small Causes Court for establishing his tenancy rights and when there was an interim order in favour of defendant No.2, he cannot be dispossessed unless the said order is set aside by the Court. Accordingly, the ad-interim order, by which defendant No.2 was appointed as an agent of the Court Receiver, was made absolute in terms of the earlier order dated 25th August, 1998. The learned single Judge, however, gave liberty to the plaintiffs to apply, in the event the Court of the Small Causes Court or the Appellate Court reverses the order passed in favour of defendant No.2 (appellant herein). 3. It is not in dispute that subsequently the Small Causes Court at Mumbai decided the injunction application against the present appellant finding that he is not a tenant of the premises in question. The aforesaid order was confirmed by the Appellate Bench of the Small Causes Court by holding that the appellant was merely an employee of the firm. By giving cogent reasons, the Appellate Bench negatived the contention of the appellant about his tenancy rights. 4. The said order of the Appellate Bench was carried further by the present appellant by way of a writ petition before this Court and the learned -4- single Judge of this Court in that writ petition recorded the statement on behalf of the advocate for the original plaintiffs to the effect that they would not dispossess defendant No.2 without following the due process of law. The advocate for the plaintiffs also made a statement to the effect that as the suit has already been filed in the matter, the said statement should not come in their way to apply to the Court to appoint them as an agent of the Court Receiver in lieu of the petitioner i.e. appellant herein. The learned single Judge while deciding the said writ petition being Writ Petition No. 71 of 2003 has also observed in paragraph 4 as under: “4. This Court makes it clear that the respondents can very well take recourse to the remedy available to them including that of moving the Court which is seized of the matter for seeking appointment as agent of the Court Receiver by removing the petitioner. Needless to say that such an application would be decided by the Court after hearing the parties in accordance with law and which in no manner prejudice the case of either of the parties. More so, for the reason that it is pointed out by the respondents that the petitioner got into the premises through fraudulent means in collusion with one of the partners and factually speaking the petitioner was an employee of the firm. Therefore, the petition stands disposed of with no order as to costs.” 5. The Respondent Nos. 1 to 3, original plaintiffs, who are having 80 per cent of share in the partnership business thereafter moved the Notice of Motion No. 601 of 2007 in the said suit with a prayer that in place of defendant No.2, the plaintiffs be appointed as an agent of the Court Receiver. The said application was moved obviously in view of the order of -5- the Small Causes Court vacating the interim relief given initially in favour of defendant No.2. The learned single Judge, by the impugned order dated September 19, 2007, accepted the prayer by which the plaintiffs are appointed as agents of the Court Receiver on the same terms and conditions on which defendant No.2 (present appellant) was appointed as an agent of the Court Receiver by an order dated 25th August, 1998. 6. It is the aforesaid order of the learned single Judge which is impugned in this appeal at the instance of original defendant No.2. 7. The learned counsel appearing for the appellant vehemently submitted that even though it is true that interim injunction granted in favour of the appellant is vacated by the competent Court i.e. Small Causes Court , yet till the original plaintiffs obtain appropriate order from the competent court by way of a decree for possession, they cannot forcibly remove defendant No.2 from the premises. The learned Counsel further submitted that certain observations made by the learned single Judge in the impugned order are not factually correct as the learned single Judge as misread the order dated 28th August, 2000 as regards the liberty given to the plaintiffs for filing fresh Notice of Motion for removing defendant No.2 from the premises. The learned counsel further submitted that even though the injunction application submitted by the appellant is vacated by the Small Causes Court, that itself would not mean that the plaintiffs can dispossess defendant No.2 forcibly -6- without following due process of law. It is also submitted that defendant No.2 is paying substantial amount towards the rent and, therefore, even if he is continued as an agent of the Court Receiver, it would not prejudice the interest of the plaintiffs and the defendant No.1 in any manner. 8. Learned counsel appearing for respondent Nos. 1 to 3, on the other hand, submitted that at the relevant time when learned single Judge permitted the second defendant to act as an agent of the Court Receiver, an injunction order was already in force by which the plaintiffs were restrained from removing defendant No.2 from the premises. It is also submitted that now after considering the prima facie evidence on record, which is also in the nature of documentary evidence, when a competent court has given finding that second defendant is merely a servant, the plaintiffs can always apply for appointing them as agents of the Court Receiver especially when liberty was granted not only in the first order but also in the second order i.e. Order passed in writ petition which was instituted by the present appellant and even at the time of deciding the writ petition, specific liberty has been given by the learned Judge in paragraph 4 of the order extracted above. According to the learned counsel, therefore, there is no merit in the appeal and the appeal deserves to be dismissed with costs. 9. We have heard the learned counsel appearing for the parties at great length and gone through the papers of this appeal. In this behalf, -7- certain factual aspects are required to be taken into consideration. 9.1 The plaintiffs i.e. Respondent Nos. 1 to 3 are admittedly having 80 per cent share in the partnership firm. 9.2 There is nothing on record to show that defendant No.1 had any authority to induct defendant No.2 in the premises as a tenant. 9.3 After considering the voluminous documentary evidence, the competent court i.e. Appellate Bench of the Small Causes Court has given a finding of fact, may be prima facie, to the effect that defendant No.2 is merely an employee of the firm and he is not having an independent status as a tenant. 10. It is required to be noted that at the time of passing the initial order by which defendant No.2 was permitted to act as an agent of the Court Receiver, the learned single Judge has granted liberty to the plaintiffs to apply for modification of the order in case ultimately the order of the Small Causes Court is in favour of the plaintiffs. In view of the subsequent developments and in view of the liberty granted to the plaintiffs by the Court that the plaintiffs have moved the Notice of Motion with a request that now they may be appointed as agents of the Court Receiver in view of the changed circumstances i.e. the order of the Small Causes Court. Originally -8- the plaintiffs could not apply to the Court for appointing them as agents of the Court Receiver because there was an injunction operating at the relevant time. When the injunction is vacated, surely, the plaintiffs were absolutely justified in moving a fresh application in view of the express liberty given to them by the learned Judge. Even while deciding the writ petition of the appellant herein, the learned Judge has also given specific liberty in that behalf. The learned counsel for the appellant is also not in a position to point out any material justifying his presence in the premises as a tenant. In that view of the matter, when there is a specific finding of the competent Court after considering the evidence on record to the effect that defendant No.2 was inducted merely as a servant and having no independent right in any manner as a tenant, the learned single Judge was perfectly justified in replacing the second defendant by appointing respondent Nos. 1 to 3 herein as agents of the Court Receiver especially when the plaintiffs have got 80 per cent share in the partnership business which is not in dispute. It has been submitted by the learned counsel for respondent Nos. 1 to 3 that defendant No.1 only in order to deprive the plaintiffs from their rights has inducted defendant No.2, who is merely a proxy of defendant No.1. We would not like to go deep into the question as we are satisfied that the order of the learned single Judge needs no interference in this appeal in view of the facts and circumstances of the case as well as in view of the documentary evidence and other material on record. -9- 11. In view of what has been stated above, we do not find any merit in this appeal and the appeal is accordingly dismissed with costs. It is clarified that the observations made by us in this appeal is to be considered only for the purposes of deciding the Notice of Motion and it will have no bearing in the suit pending before the Small Causes Court as it is for the competent court ultimately to decide the main issue involved in the suit, after considering the evidence on record. 12. At this stage, learned counsel for the appellant requested that the interim stay granted by the learned single Judge and continued by this Court be continued for some time. However, considering the facts and circumstances of the case, we are of the view that since the second defendant has tried to take undue advantage of the situation and in view of the fact that the competent court has already given finding that the second defendant is not a tenant, the request for continuing the interim stay is rejected. The Notice of Motion is also accordingly dismissed. (R.M.S. KHANDEPARKAR, J. ) (P.B. MAJMUDAR, J.)