Bombay High Court
Meghji Jetha Shah vs Kalyanji Najik Shah on 15 January, 1987
Equivalent citations: AIR1987BOM273, 1988(1)BOMCR263, (1987)89BOMLR107, AIR 1987 BOMBAY 273, (1987) MAH LJ 254, (1987) MAHLR 850, (1987) 89 BOM LR 107, 1987 BOM LR 89 107
ORDER
1. This revision application is directed against the order dated 13th November 1986 passed by the learned Judge, City Civil Court Greater Bombay inshort Cause Suit NO. 3172 of 1984 filed by the Respondent under s. 6 of the Specific Relief Acr of recovery of possession of the suit premises I,r Shop No. 20 Municiple Market at Borivili on the averments that he was carrying ongrocery business in those premises since the year 1971 and while he was in settled possession of the permises andwas running his grocery business he has without due procees of law forcibly dispossessedbyt he present Petitiner on 12the April, 1984 The Respondent took out a Notice Of Motion for appointment of Court Receiver with a dirction toappoint himas agent and allow him to run the business of Bharat Stores whichhe was runing tillhe has dispossed which the was running tillhe was dispossessed on 12th april, 1984. In suport of the Notice of Motion, the respondent (platintiff) filed his affidavit and produted various document.
2. the Petitioner (defendant) by his affidavit-in -reply opposed the Notice of Motion,According to the Peitioner (defendants_ he held the premises onliecence formthe Municpla Corporation and he was running the busisness at the suit premises. Accroding tohim the Respondent (Plaintiff) was working at his shop as his servant. He denied that the business under the name and style of Bharat Stores was bieng carried on by the respondent (plaintiff)in his rights ate this suit premises.
3. The learned trial judge after considering affidavits filed insupport and in reply andalsothe various documents produced by theparties on record, passed as order on 13th November, 1986 and thereby made the Notice Motion absoulte interms of prayer clauses (a), (b) and (c). In the final order he has set out vaious terms onwhich the Respondent (plaintiff) should be allowed rorun his business at the suit premises as agentof the Court Receiver.
4. Feelling aggrieved by the said order, the original defendatn first filed an appeal andlater on coverted it into revision.
5. The learned Counsel for the Peitioner (defendant) contends that in a suit under s. 6 of the specific Relidf Act thetrial court had no jurisdiction to pass orders of appointment of a receriver under O. 40, r. 1 Civil ..Procedure Code. He also contends that the respondent (plantiff) is the servant of the Petitioner (defendant) and as such being his licence onthesuit premises was not entitled tomaintain anaction under S. 6 of the Specific Relief Act. His third submission is that the Metropolitab Magistrite in theproceedings and Under S, 145 Cr. P. C. had already attracted and sealed the suit premises and,. Therefore, it was not proper onthepart of the learned trial Judge to appointa a Court Reciver and direct hom to allow the Respondent (plaintif) to conduct busincess at the suit premises as the agent.
5A. The learned Counsel for the Respondent (plaintiff) in the other land submits that there is voluminous evidence on record on the basis of which the learned trial Judge has found that the Respondent (plaintiff) oin his own right was conduting grocery business on the name and stayle of Bharat Stoes for the last may years andthere was not an iota of evidence except thebare word of the Petitioner (defendant) that the respondent (plaintiff was doing business at the suit premises as his servant. Therefore, according to the learned counsel for the Respondent (plaintiff), there is no substance in the contention of the learned councel for the petitioner (defendatn) that the Respondent (plaintiff) carried on the businsess as licensee of thie Petitioner and as such he was not entitled to maintain an action under S. 6 of he Specific Relief Act. The learned Counsel for the Respondent (plaintiff) submits that there is noting either in the Specific Relief Act or in the Civil Procedure Code debaring the Civil Court form exercising powers under O. 40, R, 1 Civil Procedure Code ina suit under S. 6 if the Specific relief Act. He submits that even int suit under S. 6 of the specific Relief Act a Civil Court can exercise all the powers it has under the Civil Procedure Code Regarding the third submisison made by thelearned Counsel for the Petitinoer )defebdant) the learned Counsel for the Resepondent) (Plaintiff) submits that on the volumionus evdidence onrecore t he learned trial judge found that the Responedent (plaintiff) was running the business at the suit premises and he was focibly removed formthe premises by the Petitioner on 12th April, 1984, ON the complaint of the Responddnt there wer proceedings under S. 145, Ciminal P. C. and the suit premises were sealed by the Metropolitan (plaintiff) is without business for the last upon more than two years cnainthe circumstnces of the present case it is not proper that suit premises should be kept sealed and the Respondent (plaintiff) shoud be kept without business for a mumber of years till the suit is finally decided bythe City Civil Court. According to the learned Counsel for the Respondent (plaintiff) the learned trial judge was perfectly right inappointing the Receiver and directing him to allow the Respondent (plaintff) to do business at the suit premises as his agent and the learned tria Judge also provided sufficient sagegurads for protecting the intersts of the Petitioner (defendant) Therefore, according to him, the learned trial judge wasnot all wrong in passing the impugned order and it could not be intergered with in this revision.
6. The learned Counsel for the Petitioner (defendant( in support of his contention that no receiver could be appointed in a suit under s. 6 of the specific Relief Act relied on the decision in Foujmal Manaji v. Bikhibai, AIR 1937 Sind 161 It was ............S. of the Specifice Relief Act of 1963. In that suit besides possession meane profits were also calimed and for collecitng meane profits receive wa appointed by the Trial Court Againt the ordr of the trial Court miscellanrous appeal was preferred before the Court of the Judical commissioner, Sind, J. C The relevant obsercation on page 161 of the report read as followe, "Under this section a suit for possession and mesne profits will not lie nor can the court pas a decree for mesne profits prior to the suit. Nor do think an order for meane profits during the pendency of th suit can be made under this sectiuon nor, do suit can be made under this section nor dowe think a recevier can be appointed. It is clear that this section provides a special andcompartiverly summary remedy for a person dispossessed without his consent and the section relates only to possession.' The learned Counsel for the Respondent (plaintiff) referred ot the Division Bench decision of this High Court of pandhari Shamrao Kolhe v. Meerabai w/o Laxman Kolhe, 1980 Mah Lj, 39 It was a case under S. 6 of the Specitifc Relief Act ;and it was held therei in that insuit under S. 6 of the Apecific Relief Act meane profits or damages could be claimed. Onpate 40 of the report it is observed thus;--
'................... Incidentally we think that Mr. Choduhari is not well advised in rasing theis contention inasmuch as there is authority to the proposition that insuit under S. 6 (former section ( of the Specific Relief Act) of the Specidic Relief Act relief of meane profits of demages couldbe joined. An authority for this proposition may be found in the Case of ram Parekh Bai. V. Sheodibai Joti (1893) ILR 15 All 384.' The Division Bench decision of the is court on the point of tenability of a claim for meane profits of the suot under s. 6 of the Specific Relief Act is directly contrary to the decision of the sind Judicual commissioners Court relied up by the learned Counsel for he Peitioner (defendant) . In thie Sind decision there are no reasons given for the opinion that a receiver cannot be appointed in a suit unde s. 6 of the Specitif Relief Act. I am unable top subscribed to the view expressed ................. Specitif Relief Act or in the Civil Procefure Code for the Civil Court toact udner O. 40 R,1 Civil P. C. in a suit under S. 6 of the specific Relief Act. The provisions of O. 40 R. 1 Civil p. C. empower the Civil Court toappoint a receriver if the Court considers it just and convenient. It is a salutary provision empowerring the Corut to do justice between the parties pending final decision of the suit and such powers are necessary even in a suit institutied under S. 6 of the specitif Relief Act. Consequently lam unable to agree with the Learned Counsel for the peitioner (defendant) that the learned trial judge had no jurisdiction toapoint a receiver under O 40 R. 1 Civil P. C. ina suit under s. of the specific Relief Act.
7. The learned Counsel for the Petitioner (defendant) in support of his contention that no suit could be instituted by a license under S,.6 of the Specitif Relief /Act relied on the decision in Maganala Radia v, state of Maharashtra , It was a suit filed by a licansee whose licence was revked and who was evited by summary procedure by the Revenue Officer, The suit was against the State of Maharashtra. Sub caluse (2) (b) of s. 6 of the Specifif Relief Actr specifically bars a suit under s. 6 agasint the Government In the present case there is not an iota iof evidence that the Respondent (plaintiff) wa consducting business at thesuit premises as a servant of the Peititioner (defendant) On the contrary there is a voluminous evidence on record which shows that the Respondent (plaintiff) wasdoing business on the suit premises ofhis show. Theregore, I am unable toagree with the contention of the learned Counsel that it is a suit by license agasint the licensor andas suchit is not tanable.
8. The last submission of the learned Counsel for the Petitioner (defendant) is that the suit premises having been sealed by the Metropolitan Magistrate in the Preceedings under S. 145, Criminal Proce dure Code the learned trialjudge should have allowed the same to remain sealed and should not have appointed a receriver with a direction that he should permit the Respondent (plaintiff) to use the premises for his business as the agent. In thepresernt case the Respondent (plaintiff),by producing voluminons evidence before the learned trial Judge satisfactorily prima facir provied that the was doing business at the suit premises for a number of years tillbe was wrongfully dispossessed on 12thApril, 1984 Hence I do no think that the learned tria Judge was wrong in appointing a receiver and directing him to allow the Respondent (plaintiff) todo business as his agent. He has provided sufficeient sageguards inthis order to protect the interest of the Petitioner (defendant) too. If is a matter of common knowledge that for final decision of the suits inth City Civil Court at Bombay one has towait of thefor a number of years ast hee is lot of congestion of work inthat court, It is not proper that the premises which were sealed on 12th AprIL, 1984 should be continued to be sealed for a number of years and the Respondent (plaintiff) should be kept without any business for those years. Therefore, in theCircumstances of the present case I find that the learned trial judge was perfectly right inallowing the Respondent (plaintiff) to conduct his business in thesuit premises as agent of the court Receiver.
9. Having considered all thesubmissions made before me by thelearned Counsekl for theparties I find that there is nothing for this court to interfere with the order passed by the learned trial Judge in this revision. Consequently the revision is dismissed in limine. At the request of the learned Counsel for the petitioner (defendant), he is granted 4 weeks time to approach the Supreme Court and for that period the order passed by the trialcourt is stayed. He agrees to give 3 days' notice the to Advocate for the Respondent (plaintiff) in case he moves the supreme Court for orders.
10. Revision dismissed.