None 1951 of 2009 on 18 June 1992

1

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO.1951 OF 2009

IN

APPEAL NO.226 OF 2009

IN

NOTICE OF MOTION NO.3646 OF 2008INSUIT NO.2952 OF 1991

WITH

NOTICE OF MOTION NO.1952 OF 2009INAPPEAL NO.227 OF 2009INNOTICE OF MOTION NO.3647 OF 2008INSUIT NO.2952 OF 1991

WITH

NOTICE OF MOTION NO.1953 OF 2009INAPPEAL NO.228 OF 2009INNOTICE OF MOTION NO.3648 OF 2008IN

SUIT NO.2952 OF 1991

Ashok Parsram Bokani and Ors. .. Petitioners.Vs.Mrs.Premlata alias Poonam alias Kukoo wife of Kumar Atmaram Sharma and Ors. .. Respondents.

Mr.Chirag Balsara with Ms.Usha Gadagkar i/be Divya Shah and Associates for the petitioners.Mr.Tushar Goradia for respondent no.2.Mr.B.Unnikrishnan for respondent nos.4 to 6.

CORAM : D.K.DESHMUKH & R.P.SONDURBALDOTA, JJ.

DATED : 16TH AUGUST, 2010.

P.C.

The appeals are not on board. They are taken on board and are heard finally by consent of the parties. Suit No.2952 of 1991 has been filed by the plaintiff seeking decree of declaration that the plaintiffs and defendant no.1 are the only heirs of deceased father – Late Maharaj Ramchandra Ganesh Ram. They also claim declaration that they are entitled to equal shares in the suit property and its possession. The plaintiffs took out Notice of Motion No.2164 of 1994 in that suit. By the order dated 18th June, 1992 the learned Single Judge of this court appointed the receiver on the property which is subject matter of the suit and directed “Receiver shall permit the accommodation on the second floor premises situated at Khar to be occupied by needy persons on temporary basis as the agent of the Receiver without charging any compensation, but on sufficient undertaking being given to the Receiver to vacate the same as and when deem fit and desired by the Receiver”. In the year 2008, three notice of motions were taken out being Notice of Motion Nos.3646/08, 3647/08 and 3648/08. There were three prayers made in that Notice of Motions which read as under:

“(a) That this Hon’ble Court be pleased to condone the delay, if any, in taking out the present Notice of Motion.(b)That this Hon’ble Court be pleased to modify the order dated 18.6.1992 being Exhibit – 1 to the extent of taking possession of the 2nd Floor premises being Flat No.202 from this Defendant and the said part or the order be declared as void ab initio, illegal and be pleased to order that the said order has been obtained by fraud, misrepresentation by Plaintiff and Defendant 1 and 2 upon this Hon’ble Court.

(c) That this Hon’ble Court be pleased to restrain the Hon’ble Court Receiver from taking physical possession of the suit flat being flat no.202 on 2nd floor admeasuring 700 sq. ft. in the building known as Rameshwar Ashram, Plot no.220B, 9th Floor, Khar (W), Mumbai 400 052 from the Defendant No.4 pending the hearing and final disposal of the suit.”

2. Thus, by the notice of motions’ modification of the order dated 18th June, 1992 was sought. This notice of motion were disposed of by the learned Single Judge of this court on 17th October, 2008. The learned Single Judge without giving any reason modified the order dated 18.6.1992 and directed the receiver to continue defendant nos.4 and 5 in possession. That order was clarified by the order dated 18th December, 2009. It is these orders which are challenged in the appeal on the short ground that the learned Single Judge has not given any reason for modifying the order dated 18.6.1992. We have heard learned counsel appearing for respondent nos.4 and 5. The only reason given by the learned counsel appearing for respondent nos.4 and 5 is that the order has been made by consent of the parties but perusal of the order shows that it has not been made by the consent of the parties and the consent of parties was given only for disposal of the motion at that stage. We find that the order dated 17th October, 2008 has been made modifying the order of 18.6.1992

without giving any reason for doing so. In our opinion, the order will have to be set aside. In our opinion, the following order will meet the ends of justice:

Notice of Motion Nos.3646/08, 3647/08 and 3648/08 in suit No.2952 of 1991 are set aside. The Notice of Motions are remitted back to the learned Single Judge for denovo consideration and decision.

The appeals are disposed of.

In view of disposal of the appeals, Notice of Motion Nos.1951/09, 1952/09 and 1953/09 do not survive for consideration.

During pendency of the motions before the learned Single Judge possession of respondent nos.4 and 5, who are admittedly, in possession, be not disturbed.

(D.K.DESHMUKH,J.)

(R.P.SONDURBALDOTA,J.)