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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S.Patel, M.G.Sewlikar, JJ.
Mahendra Mangruram Gupta – Appellant
Versus
Rajdai Nandlal Shaw – Respondent
Appeal No. 83 of 2020, Notice of Motion No. 1189 of 2014, Suit No. 443 of 2013
Decided On : 15-06-2022
Court Receiver - Dispute over possession of shop - Maria Margarida Sequeira Fernandes & Ors v Erasmo Jack De Sequeira (Dead) Through LRs,(2012)5 SCC 370, T Krishnaswamy Chetty v C Thangavelu Chetty & Ors.,AIR 11955 Madras 430, Prabhudas Damodar Kotecha v. Manhabala Jeram Damodar,(2013) 15 SCC 358, Wander Ltd v Antox India Pvt Ltd,1990 (Supp) SCC 727, Mohd Mehtab Khan v Khushnuma Ibrahim Khan.,(2013) 9 SCC 221 - The court discussed the dispute over possession of the shop and the legal principles regarding the appointment of a receiver, permissive possession, and the circumstances under which a receiver can be appointed. The court emphasized the need to balance the views of different legal precedents and found that the appointment of a receiver at an interim stage should only be made in the most extreme cases. The court also highlighted the distinction between permissive possession and forcible dispossession, and the need to protect the property while maintaining status quo.
Fact of the Case:
The dispute arose over the possession of a shop, with the plaintiff seeking an injunction and the appointment of a Court Receiver to take physical possession of the shop. The defendants claimed permissive possession and resisted dispossession. The court considered the claims of the parties and the documents presented, including the redevelopment of the building where the shop was located.
Finding of the Court:
The court found that the defendants had not established a prima facie case of exclusive or settled possession of the shop. It also noted that the plaintiff's application sought possession from the defendants, indicating that the defendants were in possession. The court held that the appointment of a receiver to eject the defendants was incorrect at an interim stage and ordered the maintenance of status quo to protect the property.
Issues: The issues involved the disputed possession of the shop, the claims of permissive possession by the defendants, and the application for the appointment of a Court Receiver. The court also considered the legal principles regarding the appointment of a receiver and the circumstances under which possession could be disturbed.
Ratio Decidendi: The court's decision was based on the finding that the defendants had not established exclusive or settled possession, and that the plaintiff's application sought possession from the defendants, indicating their possession. The court emphasized the need to protect the property and maintain status quo, highlighting the distinction between permissive possession and forcible dispossession.
Final Decision: The appeal was partly allowed, and the impugned order was substituted with an order maintaining the Court Receiver, ensuring the defendants' possession was not disturbed, and imposing conditions on the defendants regarding royalty payment and agency agreement with the Court Receiver. The existing injunction against the defendants was also continued until the final disposal of the suit.
JUDGMENT
G.S.PATEL, J. - The Appeal is directed against an interim order dtd. 26/11/2019 passed by the learned Single Judge of this Court in Notice of Motion No.1189 of 2014. In that Notice of Motion the Plaintif sought an injunction restraining the 1st and 2nd Defendants from parting with possession and also sought the appointment of a Court Receiver to take physical possession of the suit premises, a bhel puri or chana kurmura vending shop.
2. After hearing both sides and considering the material on record, the learned Single Judge appointed the Court Receiver, directed the Receiver to take physical possession of the shop in question and then directed the Receiver to appoint the Plaintif as the Receiver's agent without security. The Receiver was to fx royalty which was to be deposited in Court and then invested.
3. Mr Railkar appears for the Appellants, original Defendants Nos. 1 and 2. He is not aggrieved by a previous order of injunction earlier granted by this Court. In any case, that injunction has been confrmed by Division Bench of this Court in Appeal on 9/12/2019. What aggrieves the Appellants is the order appointing the Court Receiver with an order to take possession from them and to put the Plaintif in possession.
4. For completeness, we note that on 1/8/2017 the Court had appointed a Court Receiver. This order was recalled at the instance of the 1st and 2nd Defendants since they said it was passed in their absence. The Plaintif's original Notice of Motion came to be restored to fle.
5. The parties are in dispute about Shop No.5, Ground Floor, Bajrang Kripa, N.M. Joshi Marg, Parel, Mumbai. The Plaintif says that her father Deep Narayan was a tenant of this shop. He conducted a chana-kurmura or bhel-puri business there. He did well for himself, and brought his younger brothers Mangruram and Baburam to Mumbai from Uttar Pradesh to help him in this business. Deep Narayan allowed his younger brothers to help in running the business. The Plaintif says that, at that time, Deep Narayan, Mangruram and Baburam each ran the business on a oneyear rotation until about 2012. Mr Railkar says that this narrative by the Plaintif may not be entirely accurate because of other documents. We will leave this aspect of the matter open for the present.
6. The Plaintif is Deep Narayan's daughter. Defendant No. 1 is Mangruram's son. Defendant No. 2 is the 1st Defendant's son. The Plaintif says that the 1st Defendant was, under this purported arrangement, to conduct the business in the shop for until the year ending 31/7/2012. He was then to make over the shop to Defendant No.3 (since deceased), Baburam, the other brother. The Plaintif claims that Mangruram's son and grandson refused to hand over the business and the shop to Baburam. They locked it up and did not even give possession to Baburam's sons, Defendants Nos. 4 and 5.
7. Defendants Nos. 1 and 2 brought suit against the Plaintif in the City Civil Court and fled a Notice of Motion seeking a restraint from being dispossessed. That Notice of Motion was dismissed by the City Civil Court on 21/12/2012.
8. The Plaintif herself says that the possession of Defendants Nos. 1 and 2 was permissive. She claims that these two Defendants have no right to occupy the premises.
9. Baburam's branch has supported the case of the Plaintif against Defendants Nos.1 and 2.
10. Defendants Nos.1 and 2 contested the Plaintif's Interim Application on the ground that all three brothers were co-tenants of the suit shop despite the fact that the rent received was only in the name of the eldest brother Deep Narayan. They relied on a joint declaration allegedly executed by Deep Narayan acknowledging the rights of the other brothers. They also claim that by an Afdavit dtd. 22/2/1990, Deep Narayan transferred his rights in the suit shop to Mangruram (the 1st and 2nd Defendants' father), and that upon Deep Narayan's death, his widow Anta Devi (the Plaintif's mother) executed a declaration relinquishing her right, title
AI
The main legal point established in the judgment is the need to balance the legal principles regarding the appointment of a receiver, permissive possession, and the circumstances under which possessi....
The court ruled that a trial court may appoint a receiver in a suit for injunction to prevent potential chaos, especially when possession claims are contested, without requiring a specific applicatio....
The main legal point established in the judgment is that the City Civil Court had no authority in law to entertain an application in a disposed of suit against which an appeal had already been pendin....
Appointment of a receiver requires a judicious exercise of discretion; failure to adhere to procedural fairness resulted in setting aside the trial court's order.
The court upheld the appointment of a Receiver to protect religious property, affirming the right to worship and correcting procedural omissions under inherent powers.
The main legal point established in the judgment is that the suit building remained custodia legis and the possession of the Court Receiver was prima facie violated. The Court provided an opportunity....
The court clarified that a receiver can only be appointed if there is a prima facie case, immediate danger, and it does not deprive the defendant of possession.
A suit for injunction simplicitor is not maintainable without a declaration of ownership, especially when the plaintiff admits that part of the property is in the possession of the defendants.
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