1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3970 OF 2007 IN SUIT NO.1055 OF 1989 Snehalata wd/o.Sohanlal B.Ghai and Ors. .. Plaintiffs Versus Anita Sohanlal Ghai and Ors. .. Defendants and Ashok Madhukar Potdar .. Applicant Mr.P.G.Lad for plaintiffs Ms.Shikha Raniwala i/b. Rawal Shah & Co. for defendant Nos.1, 2 and 5 Mr.S.G.Deshmukh, for applicants. CORAM : S.C.DHARMADHIKARI, J. DATE : 25th August 2009. P.C.: 1] Heard Mr.Deshmukh in support of the motion and Mr.Lad in opposition. Perused the notice of motion, annexures including the affidavit in support and reply. 2 2] After having perused the relevant materials what I find from the record is that the applicant states that he has an agreement in his favour in respect of the shop No.7 (which is the subject matter of the present motion). He claims that one Shirish Gadkar, an ordinary resident of Thane had entered into an agreement of sale of the concerned shop with the applicant and Mrs.Ujwala Arvind Misal, jointly referred to as purchasers. That agreement, a copy of which is annexed to the affidavit in support (page 46) is stated to be registered. My attention is also invited to the public notice issued on behalf of the said Gadkar by his Advocate (page 42) and the copy of the share certificate, stated to be issued by Akshata Cooperative Housing Society in favour of both the purchasers. 3] While it is true that in the agreement in favour of the applicant, a reference is made to the fact that the said Gadkar has acquired a shop from Sohanlal Ghai, stated to be predecessor in title of the parties to the suit, yet, what is apparent to me is that neither the said Gadkar nor the present applicant are parties to the 3 suit. Averments in the plaint do not indicate that Sohanlal Ghai has not been divested of his right, title and interest in the suit shop as the agreement for the said shop is allegedly not registered and in any event there being no conveyance in favour of the applicant. Hence, the title of the said Ghai is undisturbed and once that is the position, no right could be created in favour of Gadkar. If Gadkar had no right, then, even the applicants would not have any rights in respect of this shop. All this is now argued orally by Mr.Lad before me. Nothing of this kind has been stated in the plaint. There are no allegations in the plaint which would deal with the documents referred by me hereinabove. 4] Confronted with this position and the clear mandate flowing from Order 40 Rule 1(3) of Code of Civil Procedure, Mr.Lad prays for time to take instructions so that the plaint and proceedings could be amended. 5] Finding that there are no denials of the factual assertions made on affidavit before me and the law being clear that the 4 Receiver cannot dispossess the party who the plaintiff has no present right to so dispossess, there is no alternative but to make the motion absolute by clarifying that the order appointing Receiver shall not affect the occupation and possession of the Applicant in the concerned shop. 6] However, when this aspect was made clear, Mr.Lad seeks four weeks time to adopt appropriate proceedings to amend the plaint and, thereafter, to apply for such reliefs as are permissible in law. 7] In such circumstances, the following order would serve the ends of justice. ORDER (a) If within a period of four weeks from today, plaintiff does not adopt appropriate proceedings and seek appointment of Court Receiver in respect of the said shop premises, it is 5 directed that the order appointing the Court Receiver in respect of this shop dated 25th April 1995 shall stand set aside only to the extent of this shop. Thereupon, even the consequential orders making the Court Receiver’s report No.16 of 2007 absolute would stand set aside to this extent. (b) However, if appropriate proceedings are adopted by the plaintiffs, then, it would be permissible for the plaintiffs to apply for such reliefs as are permissible in law including seeking appointment of Court Receiver in respect of the shop. All questions and contentions with regard to the same are kept open and merely because this order is passed relying upon certain assertions of the applicant, would not prevent plaintiff from raising appropriate pleas and applying for reliefs aforestated. In that event, this order shall not influence the Court while trying the proceedings instituted by the plaintiffs. (c) It is confirmed that the applicants are in physical 6 possession of the shop premises. To enable the plaintiffs to adopt appropriate proceedings as above, for a period of four weeks, the applicant shall not alienate, encumber, transfer or part with possession of the concerned shop. However, if no orders are passed within the period aforestated, then the Court Receiver would stand discharged in respect of the suit premises but without passing accounts and on payment of usual costs, charges and expenses. Even the restraint placed by this order against alienation would then stand vacated. (d) Notice of motion is disposed off in the above terms with no orders as to costs. (S.C.DHARMADHIKARI, J)