Hiralal Ghanshyamdas Kukreja and Ors. Vs Mohanlal Ghanshyamdas Kukreja and Anr.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION

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REVIEW PETITION STAMP NO. 21874 OF 2005
IN
CIVIL APPLICATION NO. 599 OF 2005
IN
CROSS OBJECTION STAMP NO. 28767 OF 2005
IN
FIRST APPEAL NO. 57 OF 2005
IN
B.C.C.C. SUIT NO. 1787 OF 1984

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 Hiralal Ghanshamdas Kukreja
 & Ors. ..Petitioners

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 versus

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 Mohanlal Ghanshamdas Kukreja
 & Anr. ..Respondents

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 Mr. U. J. Makhija with Mr. W. N. Yande and
 Ms. Preeti Shah, Advocates for the Petitioners.

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 Mrs. Gauri Godse with Mr. A. V. Jain for the
 Respondents.

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 CORAM : D. G. DESHPANDE,J.
 DATE : 6TH DECEMBER,2005

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ORAL ORDER : (IN CHAMBER)

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 1. Heard Mr. Makhija for the petitioners of
 this Review Petition and Mrs. Gauri Godse for the
 respondents.

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 2. First Appeal No. 57 of 2005 and Cross
 Objection Stamp No. 28767 of 2005 were before me.

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 Civil Application No. 599 of 2005 came to be filed
 by Mohanlal, who is the respondent in this Review
 Petition. There was another Civil Application No.
 127 of 2005 which came to be filed by the
 petitioners herein. Both the Civil Applications
 were decided by me by my order dated 16.9.2005
 whereby Civil Application No. 599 of 2005 filed by
 Mohanlal - the respondent herein was allowed and the
 Court Receiver was directed to visit the spot, give
 one opportunity to the original plaintiffs to offer
 two rooms and common use of kitchen to Mohanlal and
 if they do not accept the offer, the Court Receiver
 was directed to put Mohanlal in possession of one
 bedroom, hall for common enjoyment and kitchen for
 common enjoyment as an agent of the Court Receiver
 without any royalty and security. The Review
 Petition is directed against this order.

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 3. The Review Petition is permissible if new
 and important matter or evidence is discovered after
 the order, and, which could not be produced after
 due diligence when the impugned order came to be
 passed or it is permissible if there is some mistake
 or error apparent on the face of record or if there
 is any other sufficient reason. This is not a case

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 where there is any discovery of new or important
 matter. Therefore, this Review Petition is not
 under this particular provision of Order 47 Rule 1
 of the Code of Civil Procedure. According to Mr.
 Makhija, the review is because of an error apparent
 on the face of record, and, the error is not, taking
 into consideration the earlier orders of this Court
 and Mr. Makhija also contended that there is other
 sufficient reason for review.

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 4. Appeal No. 57 of 2005 came to be filed by
 the original plaintiffs, who are petitioners of this
 Review Petition. They had filed a suit for
 permanent injunction. That suit came to be
 dismissed by City Civil Court by Judgment dated
 9.9.2004 by deciding issue No.3, viz. Whether in
 view of the order dated 10.9.2001 passed in High
 Court Suit No. 1143 of 1986 reliefs claimed in the
 suit have become infructuous? First Appeal No. 57
 of 2005 of the Appellants was admitted. Original
 defendant Mohanlal filed Cross Objection in this
 appeal, and, then the aforesaid two Civil
 Applications came to be filed.

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 5. Suit No. 1143 of 1986 in the High Court

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 Original Side was a suit filed by Mohanlal for
 partition of his 1/18th share. A preliminary decree
 came to be passed in that suit. In the Civil
 Application No. 599 of 2005 prayer of Mohanlal was
 that the Court Receiver, High Court Bombay, be
 appointed in respect of one bedroom, hall and
 kitchen and he should be appointed as agent of the
 Court Receiver without paying royalty or deposit.
 These prayers were granted by me by impugned order,
 hence this Review Petition.

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 6. Mr. Makhija brought to my notice that my
 observations in the impugned order that "......Now
 by virtue of decree in his favour, he has become
 entitled to .........." they are without any basis
 and there is no decree in favour of Mohanlal. This
 is not a factual position. Preliminary decree for
 partition in suit filed by Mohanlal on the Original
 Side is there and that decree has given him a right
 to get possession. It may be that the said
 preliminary decree for partition has been challenged
 by the other side by filing appeal. But my findings
 in the impugned judgment are on the basis of the
 record and there is nothing wrong in that.

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 7. According to Mr. Makhija while passing the

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 impugned order, I did not take into consideration
 the other interim orders or ad interim orders, and,
 this has resulted in the wrong order being passed by
 me. My attention, in particular, was drawn by Mr.
 Makhija to the order passed by the Division Bench of
 Justice Lodha and Justice Mohta dated 27.2.2004 in
 Notice of Motion No. 3383 of 2003 (Notice of
 Motion not properly legible. It is annexed as
 Exhibit ’G’ page 84 of Review Petition). The order
 is as under:

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"After having heard the learned counsel for
the parties, we are satisfied that until
further orders the respondents be restrained
from parting with possession of the suit
bungalow or inducting any third party or
creating any third party right, title or
interest in respect of the suit bungalow or
any part thereof. We order accordingly.

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Notice of Motion stands disposed of."

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 Mr. Makhija contended that the prayers in the
 Notice of Motion were similar to those in Civil

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 Application No. 599 of 2005 i.e. prayers for
 appointment of Court Receiver and Mohanlal being
 permitted to use the aforesaid rooms in the said
 bungalow. Mr. Makhija contended that when the
 Division Bench by this order refused to grant any
 such reliefs, then, I should not have passed the
 impugned order.

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 8. I do not find any merit in this submission.
 The order of the Division Bench was an order in a
 Notice of Motion pending in an Appeal. I have
 passed the impugned order pending Appeal and Cross
 Objections. There is no final decision regarding
 the rights of the parties. My order is pending the
 Appeal. The final result of the Appeal will decide
 whether that order to continue for ever or it is to
 come to an end at the decision of the Appeal and
 Cross Objection. In my order, I have noted down the
 entire history of litigation between the parties and
 even if the order of the Division Bench, referred to
 above, is there, that does not disentitle Mohanlal
 from claiming the reliefs in this case because the
 order in the notice of motion was interim or ad

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 interim order. The application in view of the
 pendency of the present appeal and cross objection

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 was maintainable and when declaration of his right

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 in the preliminary decree is passed in his favour
 for partition, he becomes entitled to atleast till
 the pendency of the appeal to occupy bungalow.

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 9. It was also pointed out that in the suit
 filed for partition, he had not asked for possession
 but only claimed compensation. The preliminary
 decree has been passed in his favour but the
 delivery of possession is stayed, and, claiming
 compensation does not mean giving up a right of
 occupancy.

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 10. Mr. Makhija also contended that the
 bungalow is not divisible by metes and bounds. I
 have already noted his submissions in that regard.
 In my impugned order my order nowhere lays down that
 bungalow should be partitioned and he should be
 placed in possession. A mere right of occupation
 and residence is given by me. There is no merit in
 this Review Petition. It is dismissed. Interim

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 order of stay is vacated. No order as to costs.

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 6.12.2005 (D.G. DESHPANDE, J.)

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 . The matter was kept today in chamber for

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 orders. After the order was pronounced in Chamber,
 Counsel for the petitioners prayed for continuation
 of stay for a period of four weeks. Operation of
 this order is stayed for a period of four weeks from
 today.

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 6.12.2005 (D.G. DESHPANDE,J.)

Hiralal Ghanshyamdas Kukreja and Ors. v. Mohanlal Ghanshyamdas Kukreja and Anr.

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Hiralal Ghanshyamdas Kukreja and Ors. v. Mohanlal Ghanshyamdas Kukreja and Anr.

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