-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 56 OF 2008 IN SUIT NO. 3987 OF 1993. Rajnikat M. Patel & Others. ..Plaintiffs. Versus Rajendra Ambalal Jhaveri & Others. ..Defendants. Mr. M. U. Pandey for the defendant nos. 1 to 3 in the suit and for the plaintiffs in the Counter-Claim. Mr. Shankar G. Lakhani for the defendant nos. 4, 5, 6 & 8 in the suit and for defendant nos. 7, 8, 9 & 11 in the Counter-Claim. Coram : R. V. MORE, J. Date : January 11, 2010. P. C. : 1. The above suit is originally filed by six plaintiffs against nine defendants. The suit property admeasures about 1368 sq. yards and is comprising of 2 old buildings and one new building known as “Harihar Niwas”. The plaintiffs filed the suit for declaration that the agreement dated 7th August 1978 between themselves and the defendant no.1 stood terminated. The defendant nos. 1 to 3 in this suit filed counter claim against the plaintiff for specific performance of the said agreement. 2. It is the case of the defendant nos. 1 to 3 that in pursuance of the above-said agreement they have constructed Harihar Niwas, i.e., the new -: 2 :- building, and the defendant nos. 4 to 9 are placed in possession thereof as purchasers and there is no dispute in this regard. So far as the old constructions are concerned, the same were occupied by the tenants. He further submitted that during the pendency of the suit, the plaintiff nos. 3 to 6 – the joint owners of the above property have executed a conveyance in favour of the defendant nos. 1 to 3 and thereby the defendant nos. 1 to 3 have become owner so far as the shares of the plaintiff nos. 3 to 6 are concerned. 3. The share of the plaintiff nos. 1 and 2 in the suit property comes to approximately 33% and the balance share as stated above belongs to the plaintiff nos. 3 to 6 which the defendant nos. 1 to 3 have purchased during the pendency of the suit. It is the case of the defendant nos. 1 to 3, i.e., plaintiffs in the counter claim, that Room No. 4, 5, 6 & 7 facing Besant Road, Room No. 7 facing Podar Road and the Room on the terrace of the building on the land being original plot No. 31-A1-31-B1 and final plot Nos. 41 and 48 in TPS-II, Santacruz (West), CTS. No. 128 admeasruing 1368 sq. yds were earlier occupied by the tenants, however, now they have vacated the same and possession thereof is taken by the plaintiff nos. 1 & 2. Learned counsel Mr. U. M. Pandey submitted that since the defendant nos. 1 to 3, i.e., plaintiff nos. 1 to 3 in Counter-Claim have 66% share in the suit property, the interest of justice will be subserved if the Court Receiver, High Court, Bombay is appointed as the receiver in respect of these six rooms. -: 3 :- 4. Learned counsel for the defendant nos. 4, 5, 6 & 8 submitted that no relief is claimed against the defendant nos. 4, 5, 6 & 8 and submitted to the orders of the Court. 5. Inspite of the due service on the plaintiff nos. 1 & 2, none appears on their behalf. 6. The subject matter of the aforesaid notice of motion is the six rooms mentioned in the above paragraph. Admittedly, these rooms belonged to the plaintiffs and the rights were created in favour of the defendant nos. 1 to 3 in pursuance of the agreement dated 7th August 1978. The said agreement is the subject matter of the above suit. The plaintiffs claim declaration that the said agreement stood terminated and the defendant nos. 1 to 3 claim specific performance of the said agreement. The statement of the defendant nos. 1 to 3 made in the affidavit-in-support of the notice of motion that the plaintiff nos. 3 to 6 have already executed conveyance in their favour in respect of their share in the suit property has not been disputed by the plaintiffs, either by appearing in this notice of motion or by filing reply thereto. The statement in the notice of motion is therefore not controverted by the plaintiffs. Thus, it can be safely presumed at this stage that the defendant nos. 1 to 3 have stepped into the shoes of the plaintiff nos. 3 to 6 and they can legitimately claim interest against the 66% share in the suit property. The contention of the defendant nos. 1 to 3 that the above said six rooms have been vacated by the tenants and the possession thereof has been delivered to the plaintiff -: 4 :- nos. 1 & 2 is also not controverted by the plaintiffs by filing reply. Since the defendant nos. 1 to 3 in the suit and the plaintiff nos. 1 to 3 in the counter claim have, prima facie, proved their claim in the six room that came to be vacated by the tenants, in my opinion, it would be just and convenient to appoint the Court Receiver, High Court, Bombay as receiver of the above said six rooms. In the above facts, I dispose of the present notice of motion by passing following order. : O R D E R : (i) Pending the hearing and final disposal of the Counter claim, the Court Receiver, High Court, Bombay is appointed as the Receiver of the aforesaid 6 rooms with all powers under Order- XL, Rule-1 of the Code of Civil Procedure, 1908. (ii) It is clarified that if the said rooms are found in possession of third parties, the Receiver shall not dispossess them and shall only take symbolic possession. (iii) There shall be no order as to cost. (R.V. MORE, J.)