The appointment of a Court Receiver without trial is unjustified when possession is disputed and prima facie evidence is lacking.

JUDGMENT :

Milind N. Jadhav, J.

This Writ Petition takes exception to twin orders dated 05.01.2023 passed by the learned Trial Court in Special Civil Suit No.296 of 2021 and order dated 31.10.2023 by the learned District Court in Misc. Civil Appeal (MCA) No.33 of 2023. Petitioner is Plaintiff before Trial Court. Defendant is his real brother. Plaintiff filed Suit bearing No.296 of 2021 before the Trial Court seeking declaration that Defendant has no right in the Suit flat being Flat No.204 situated in Jasmin Green Park, Survey No.119, Hissa No.2A, 2B and 3 of Village Shil, Taluka and District Thane and for possession.

2. Briefly stated, Plaintiff and Defendant both purchased two flats namely; Flat No.204 and Flat No.203 in their respective names by separate registered Agreements on the same date in August 2020. Both flats were purchased from the same vendor namely Ms. Savista Bano and Ali Jarrar Siddiqui. It is Plaintiff's case that vendor put the Plaintiff and the Defendant in possession of the two flats separately.

2.1. Thereafter, Plaintiff has averred that Defendant approached him and took the key of Flat No.204 to verify the area and promised to return the key, but did not do so and forcibly trespassed in to Flat No.204. Plaintiff has filed a police complaint dated 31.03.2021 in this regard. Plaintiff has also issued legal notice through his Advocate to Defendant. Thereafter, attempts made by Plaintiff to enter Flat No.204 have been thwarted by Defendant resultantly leading to filing of Suit on 10.05.2021 before the Trial Court. The aforesaid averments are the only averments made in the Suit plaint for cause of action.

2.2. In the above background, Plaintiff filed two Interlocutory Applications namely; Application below Order XXXIX Rule 1 of the Civil Procedure Code, 1908 (for short "CPC") seeking injunction against the Defendant in the interregnum alongwith Application below Exhibit "27" under Order XLI Rule 1 of the CPC for appointment of Court Receiver.

2.3. Both the above Interlocutory Applications were heard together and determined by common order dated 05.01.2023 by Trial Court. Trial Court restrained Defendant temporarily from dealing with the Suit flat until final decision in the Suit. However, in so far as appointment of Court Receiver is concerned, Trial Court held that appointment of Court Receiver and directing the Court Receiver to deliver the Suit flat to Plaintiff would amount to grant of decree without any trial. Hence, prayer for appointment of Court Receiver is refused.

3. Being aggrieved, Plaintiff filed MCA before District Court against order dated 05.01.2023. District Court however on a different ground altogether rejects the MCA by order dated 31.10.2023.

4. Mr. Verma, learned Advocate appearing on behalf of the Petitioner would submit that Plaintiff has a strong prima facie case on the basis of registered sale deed in respect of the Suit flat in his name. He would submit that in the written statement filed by Defendant, defence is raised on the basis of Memorandum of Understanding (for short "MOU") dated 22.12.2020 between parties on the ground that he is entitled to receive money as stated in the MOU from a common client, if the parties in respect of certain business dealings. He would submit that it is Defendant's case that since he has not received those monies, he would hold the Suit flat for himself.

5. Mr. Verma would point out that the MOU is dated 10.12.2020. He would assert that there is no nexus whatsoever between the MOU and acquisition of the Suit flat and a completely highhanded and arbitrary act on the part of the Defendant of linking the Suit flat with the MOU has been created without substantiating the same. In fact, according to him, Plaintiff has denied execution of the MOU and the signature appearing therein is forged and fabricated. He would submit that Plaintiff is used to append his signature in English at all times, but the signature appearing in MOU is in Hindi. He has drawn my attent