: 1 : 4318-11-wp=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4318 OF 2011 Memon Mohammed Rafique .. Petitioner v/s. Mrs. Savita Atmaram Limbachiya & Ors. .. Respondents ......... Ms. S.M. Poddar for the petitioner Mr. R.R. Mishra for respondent no.2 ......... CORAM : R.Y.GANOO, J DATE : 6th SEPTEMBER,2011. P.C. : 1. Heard learned Counsel on both sides. 2. Rule. Rule made returnable forthwith. Respondent no.1 is no more. Contesting respondent no.2 waives service of this petition through learned advocate Mr. Mishra. By consent, petition is taken up for hearing forthwith. : 2 : 4318-11-wp=.sxw 3. By this petition, the petitioner wants to challenge order dated 14th July, 2003 passed by learned Judge of the City Civil Court, Mumbai in Motion No.1019 of 2003 in S.C. Suit No.2917 of 1996. 4. I have understood from the Counsel on both sides the factual aspects of the matter. It is a common ground that as of today, the petitioner is in possession of the premises, which is covered by the present Suit No.2917 of 1996. The Court is informed that the aforesaid Suit No.2917 of 1996 came to be dismissed as per order dated 10th January, 1997 passed by the learned Judge of City Civil Court, Mumbai. The Court is informed that after this order dated 10th January, 1997, no steps have been taken to have the aforesaid suit restored. It is noticed that Notice of Motion No.1019 of 2003 was taken out in the year 2003. This will mean that the aforesaid notice of motion was taken out after the suit was dismissed on 10th January, 1997. Unfortunately, this fact of dismissal of the suit is not referred to anywhere in the impugned order, which is impugned in the present petition. 5. Since the suit has been dismissed on 10th January, 1997, the learned Judge of the City Civil Court could not have entertained the Notice of : 3 : 4318-11-wp=.sxw Motion No.1019 of 2003. 6. Learned Counsel appearing on behalf of respondent no. 2 submitted that respondent no.2 is interested in getting possession of the suit premises from the petitioner. It is required to be noted that respondent no.2 has not up till now filed any substantive suit to recover possession of the suit premises from the petitioner. Surely, that could not have been done by the respondent no.2 in the S.C. Suit No.2917 of 1996. This will mean that if at all respondent no.2 is interested in getting possession of the suit premises from the petitioner, he will have to file a substantive suit to get possession of suit premises. Now that the petitioner is in possession, respondent no.2 in near future, can file a suit for recovery of possession, if he so desires. In order to see that there is no change of hands, the petitioner can be restrained from creating third party rights and / or parting with possession of the suit premises till 31st December, 2011 so that the respondent no.2’s interest can be protected and he could take appropriate steps, if he so desires. The above restriction imposed by this order shall operate against petitioner till 31st December, 2011. 7. This petition is therefore disposed of by passing following order: : 4 : 4318-11-wp=.sxw ORDER (i) It is admitted by the respondent no.1 that as of today, the petitioner is in possession of suit premises i.e. Shop no.4, Kanhya Pada, Goregaon, Mulund Link Road, Malad (E), Mumbai. This court has not observed as to in what capacity the petitioner is in possession. If at all respondent no.2 is interested in getting possession of the aforesaid suit premises from the petitioner, the respondent no.2 is free to file a substantive suit in that behalf. Till 31st December, 2011 the petitioner is hereby restrained from creating third party rights and / or parting with possession in regard to the aforesaid suit premises. The petitioner as well as respondent no.2 are free to take appropriate contentions in a suit which may be filed by respondent no.2. All contentions in that behalf are left open. This Court has not expressed any views on merits of the order which was challenged in this petition as also the various contentions, which came to be raised before the learned Trial Court while the said motion was decided. (ii) At this stage, the Court is informed that Court Receiver is presently in charge of the premises though physical possession of the premises is with petitioner. : 5 : 4318-11-wp=.sxw (iii) Now that the suit has been dismissed on 10th January, 1997, there is no need to continue the receiver and the Court Receiver will have to be discharged. Accordingly, Receiver High Court, Bombay appointed in respect of the suit premises stands discharged without passing of accounts. If any amount is lying with the Court Receiver, he shall appropriate the same towards his costs and expenses. If any deficit remains, petitioner shall pay it to the Court Receiver. (R.Y.GANOO, J.)