: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.92 OF 2008 WITH CIVIL APPLICATION NO.115 OF 2008 Sanjay J. Gupta ....Appellant V/s. Chedilal M. Gupta & Ors. ....Respondents Mr.V.Y. Sanglikar for the Appellant. Mr.M.P. Vashi i/b M/s.M.P. Vashi & Associates for Respondent No.1. CORAM : S.J. VAZIFDAR, J. DATED : 10TH NOVEMBER, 2008. P.C. : 1. The impugned order warrants no interference. The learned Judge has appointed a Receiver and passed detailed directions regarding permitting the Plaintiff on the one hand and Defendant Nos.1 to 6 on the other to occupy the premises and carry on the said business therefrom in rotation. 2. The business was only carried out by one Sarju Gupta. The said Sarju Gupta had two sons Pratap and Mataprasad. The said Sarju Gupta pre-deceased his sons. Pratap and Mataprasad expired in the year 1978 and 1980 respectively. The Plaintiff is from the Mataprasad branch. Defendant Nos.1 to 6 are from the : 2 : said Pratap branch. This Appeal from Order has been filed by Defendant No.1 alone. Prior thereto, Pratap and Mataprasad had resolved their disputes in terms of the agreement dated 17.7.1978. The agreement provided that the premises would be occupied and the business thereof would be conducted in rotation. Clause 8 of the agreement reads as under :- "8. The parties further agree that if Pratap Sarju dies during the pendency of this Agreement then his sons Ramdas and Prakash would come in his place and all the right and title and interest of Pratap Sarju will vest in his two sons. So also, if the Party of the Second Part, that is Mataprasad Sarju dies then, his son Shadilal will come in his place and all the rights, title and interest of the Party of the Second Part will vest in him and thus the shop will be conducted and managed in rotation in case of both or each of the parties hereto and all the terms and conditions would be binding on the sons of both the Parties themselves." 3. Mr.Sanglikar submitted that there is no averment in the plaint that the Plaintiff is entitled to a 50% interest in the property. Considering the nature of clause 8, it is difficult to accept this contention at this stage. 4. It is averred in the plaint that even after the death of Pratap and Mataprasad, the parties conducted the business in rotation. This fact is not only not specifically denied but admitted in the plaint. The mere fact that the tenancy receipt was : 3 : transferred in the name of Pratap is not determinative of the matter at this stage. The proceedings are pending in the Small Causes Court in respect thereof. It is not possible to state that the agreement in the plaint is absurd or totally unsustainable. 5. I am unable to accept at this stage Mr.Sanglikar’s contention that there is nothing to be considered at the trial Court. 6. The question as to valuation also can only be effectively determined at the hearing of the suit. It is difficult to reject the Plaintiff’s contention that the suit is not capable of monetary valuation. 7. In the circumstances, the Appeal from Order and the Civil Application are dismissed. The impugned order however shall remain stayed for a period of four weeks from today.