http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 3  

CASE NO.: Appeal (civil)  2043 of 2008

PETITIONER: TAYABBHAI M. BAGSARWALLA & ANOTHER

RESPONDENT: MAHALAXMI METAL INDUSTRIES & OTHERS

DATE OF JUDGMENT: 12/03/2008

BENCH: S.B. SINHA & P.P. NAOLEKAR

JUDGMENT: JUDGMENT O R D E R   

       CIVIL APPEAL NO. 2043   OF 2008                 (ARISING OUT OF S.L.P.(C) NO. 23263 OF 2005)

1.      Leave granted. 2.      This appeal is directed against a judgment and order dated 29.9.2005  whereby and whereunder a learned Single Judge of the Bombay High Court held as  under:

\023(a) The Court Receiver is hereby discharged in respect of the  premises, in case he has taken possession of the said premises pursuant  to the orders passed by this Court in A.O. No. 1406 of 1991 or by the  City Civil Court, in B.C.C. Suit No. 1407 of 1991, from any of the  applicants or their officers.

(b)     Consequently the Court Receiver shall take steps to hand over the  respective premises if in his possession as at present and by identifying  the same in presence of the concerned applicant and the respondent Nos.  3 and 4.

(c)           So far as the applicant No. 1 is concerned the Court Receiver shall  determine the amount of royalty  payable  by it and the said amount  shall

be remitted by the said applicant within a period as determined by the  Court Receiver.  It is clarified that determination of the royalty  amount shall be in keeping with the orders  passed by this Court from  time to time.

(d)         The Court Receiver to take all further steps as are required to  be taken on his discharge in respect of the premises covered by this  order.

(e)     Needless to mention that the Court Receiver shall issue notice to  all these parties for discharge as well as handing over of the respective  premises.\024  

        3.          The basic fact of the matter does not appear to be much in dispute.  Appellants  herein are the owners of the suit premises.  Respondent No.5 was a tenant either  of the whole of the suit property or a part thereof.  According to Respondent No.  5, Respondent Nos. 1 to 4 are its sub-tenants whereas respondent Nos.1 to 4 are  claiming over the  suit premises independently.  

4.            A fire broke out in the suit premises on 25.8.1985 and one of its  portions go

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 3  

t  destroyed in the fire.  As respondent No.5 and/or its sub-tenants started raising  constructions on the said premises or a part of it, the appellants   filed  a   suit   for  injunction restraining

respondent No. 5 from carrying on the construction activities in violation of the  Building Rules framed under the  Bombay Municipal Corporation Act.  By an  order dated 15.2.1991, the City Civil Court, Bombay granted ad interim  injunction.  Some notices to stop unauthorized construction were also issued by  the Bombay Municipal Corporation.  By an order dated 29.11.1991, the City  Civil Court appointed a Receiver who admittedly took possession of the suit  premises and thereafter sealed it.  

5.            Learned senior counsel appearing for the Receiver states before us that the  possession had been taken principally from respondent No. 5  and not from  respondent Nos. 1 to 4.   However, the claim of respondent Nos. 1 to 4 appears to  be that they had been continuing in possession of part of the suit premises for a  long time and on or about 9.8.1994, pursuant to the order of the Court  dated  8.8.1994, they were dispossessed by the Court Receiver.

6.          Respondent No.1 contends that by reason of  order dated 15.6.1995 passed by  the High Court in Civil Application No. 5660 of 1994, it was appointed as an  agent of the Court Receiver. It appears that by order dated 3.7.1996,  the High  Court held that the City  Civil Court

had no jurisdiction to entertain and try the suit filed by the appellants.  Although  the suit was directed to be returned but it appears that the same has not been  done as yet and it is not presented before an appropriate court. However, the  contempt proceedings are still pending.  It appears that at several stages, the High  Court of Bombay and this Court had passed orders. It furthermore appears that  the Director of Respondent No. 5  was sentenced to one month’s imprisonment for  violation of this Court’s orders.        

7.    In the Contempt Proceedings, Respondent No. 5- tenant was not impleaded  as a party.  One of the contentious issues raised on behalf of the appellants before  us  is the jurisdiction of the Court to delegate its power in favour of the Receiver  to  handover possession to the parties from whom the possession had been taken.   Another contention raised by Mr. Shyam Divan, learned senior counsel appearing  on behalf of the appellants is that respondent Nos. 1 to 4 are not recognized by his  clients.  It was  furthermore contended that in any event, keeping in view the fact  that the High Court is yet to pass orders in regard to the directions for demolition  of the unauthorized construction issued by the Bombay Municipal Corporation as  well as the effect of raising of construction in violation of the orders of injunction as also during the  period when the Receiver had taken possession and, thus, the High Court  committed a serious error in passing the impugned judgment.

8.    We find some contentious issues here.  The Court, in our opinion, in a given  case, in exercise of its inherent power, in the event it is found that its order of  injunction had been breached, may direct the parties to be placed in the same  position  as if the order of injunction had not been violated.  Furthermore, if the  Court is in seisin of the matter in regard to  direction for demolition, there was no  occasion for it to pass a order for handing over the suit premises to the  Respondents at this stage. It was, in our view, premature to direct handing over of  possession to the parties purported to be in possession of a part of the premises in  suit, although, according to the Receiver, no such possession had been taken over  from respondent Nos. 1 to 4.

9.   We may also place on record that the learned counsel appearing on behalf of  the Receiver categorically stated before us that in 1991, the building comprised of  ground floor, mezzanine floor and first floor in part but in 1994

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 3  

when the possession was taken over, even the entire first, second and third floors  have  been constructed.  The effect of the said statement may also have  to be  considered by the High Court.

10.  We may, however, hasten to add that although we have made observations in  regard to  the jurisdiction of the High Court, it is for the High Court  to pass  appropriate orders keeping in view the effect of its order dated 3.7.1996 wherein it  held that the City Civil Court had no jurisdiction to entertain and try the suit of  the appellants.   We are informed that the plaint has not yet been taken back and   presented before an appropriate court having jurisdiction in the matter.

11.   We are, therefore, of the opinion that the interest of justice will be sub-served  if the impugned judgment of the High Court is set-aside and the matter is  remitted to the High Court for consideration of the matter afresh.  We order  accordingly.  

12.   Respondent No. 5 shall be impleaded as a party in the proceedings  before  the High Court.   All contentions of the parties shall remain open.  Keeping in  view the fact that the matter is pending for a long time, we would

request the High Court to consider the desirability of disposing of the matter as  expeditiously as possible preferably within a period of eight weeks’ from the date  of receipt of a certified copy of this order.  We would also request the High Court  to consider the desirability of hearing all connected matter together, if possible,  including the validity of the demolition proceedings.

13.          The appeal stands disposed of accordingly. No costs.