Allowed

Smt. Mary John Gomes and Ors. v. Mrs. Ranjan Sukhtankar and Ors.

Bombay HC12 Jul 2013APP/343/2013

Case brief

AI extract

What is this about?

This appeal challenged an order of the Single Judge on a Court Receiver's Report wherein the Judge issued directions to bring heirs on record, notes later rendered infructuous by a Chamber Summons. The Supreme Court allowed the appeal, finding the Single Judge erred by making extraneous findings contrary to the subsequent Chamber Summons order and set aside the impugned order.

What did the court decide?

The appeal is allowed and the impugned order of the learned Single Judge dated 11 April 2012 is set aside. There shall be no order as to costs.

Smt. Mary John Gomes and Ors. Vs Mrs. Ranjan… — Civil Procedure and Limitation | Bombay HC (2013)

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APPL191-12.7

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL (LODG.) NO.191 OF 2013 IN COURT RECEIVER'S REPORT NO.274 OF 2009 IN

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SUIT NO.469 OF 1972

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Mary John Gomes and others versus Ranjan Sukhtankar and others

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..Appellants.

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..Respondents.

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Mr. G.R. Mishra for the Appellants. Mr. R.M. Vanoo for Respondents 1(a) and 1(b).

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CORAM : DR.D.Y.CHANDRACHUD, AND S.C.GUPTE, JJ.

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12 July 2013.

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P.C. :

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On the delay being condoned, the Appeal has by consent been taken on Board and has been called out for admission.

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The Appeal has been filed by the heirs of the original First Defendant against an order of the Learned Single Judge dated 11 April 2012. The suit was instituted in 1972 against the original Defendants for a declaration and for possession. The suit was filed in 1972 by the original Plaintiffs seeking a declaration of ownership and for possession of the suit property amongst other reliefs. During the pendency of the suit, a Receiver was appointed. It appears that the Receiver was discharged on 18 July 1979. On 14 December 1995 the Learned Single Judge made the report of the Court Receiver dated 21 August 1995 absolute in terms of prayer clause (a) by directing the Plaintiff to lodge a certified copy of the order discharging the Court Receiver. With reference to prayer clause (b) the Learned Single Judge directed the Receiver to hand back possession to the party from whom he had taken possession. In the event that such a party did not take possession, the report was made absolute in terms of prayer clause ( c) authorizing the Receiver to abandon the suit property at the costs and consequence of the parties. During the pendency of the suit. the original Plaintiff died and the First Defendant also died. A Chamber Summons

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APPL191-12.7

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was taken out by the heirs of the Original Plaintiff (Chamber Summons 1914 of 2009) which was made absolute in terms of prayer clauses (b) and (c ). Prayer clause (b) was for impleading the Applicants as the heirs of the Plaintiff while prayer clause (c ) was to implead the heirs of the First Defendant. Another Chamber Summons (Chamber Summons 1992 of 2009) was taken out by the heirs of the First Defendant for the following relief :

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“a) That the Court Receiver, High Court, Bombay be ordered and directed to comply with the order dated 14/12/1995 passed on Court Receiver's Report dated 21/8/1995 in the above suit and hand over the suit properties to the Applicants being the only legal heirs and representatives of the Original Defendant No.1 above named.”

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The Chamber Summons was made absolute by the Learned Single Judge on 11 April 2012 with the following directions :

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“The Chamber Summons is, by consent, made absolute as prayed. The legal heirs of defendant No.1 shall be brought on record. Amendments in that regard shall be made within 2 weeks in the plaint as also in the copy of the plaint served upon the defendants. The newly added defendants may file their written statement within 30 days or adopt the written statement of defendant No.1.”

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On the same day, the Learned Judge dealt with the report of the Receiver (Court Receiver's Report 274 of 2004). The prayers in the Receiver's Report were as follows :

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“(a) That the Parties may be directed to bring legal heirs on record to enable the Court Receiver to execute Court's Order dated 14 December 1995.

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(b) Any other directions that this Hon'ble Court may deem fit to give in the matter. (c ) Cost of this application be awarded in the sum of Rs.1,000/- lying in the hands of the Court Receiver.”

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On this report, the Learned Single Judge observed that since no party had taken possession from the Receiver, the Court Receiver had abandoned possession; that the property had been declared as a slum by a notification of the Slum Rehabilitation Authority and the Court Receiver could not handover possession to any party. The Single Judge observed that the order dated 14 December 1995 cannot be executed and clarified that the Court Receiver stood discharged and has abandoned the property.

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Now a reading of the prayers in the report of the Court Receiver would indicate that all that the Receiver sought was that the parties may be directed to bring the legal heirs on the record to enable him to execute the order dated 14 December 1995. This report of the Court Receiver was filed on 11 September 2009. Thereafter, as we have noted a Chamber Summons was taken out by the heirs of the original Plaintiff for bringing them and the heirs of the original First Defendant on the record which was allowed by the Learned Single Judge on 14 March 2012. In the circumstances, the report of the Court Receiver dated 11 September 2009 had been rendered infructuous and no orders were required to be passed thereon since the heirs had already been brought on the record. The Learned Single Judge has, in our view, erroneously entered upon a finding which is extraneous to the report of the Court Receiver and in fact those observations in the impugned order are completely contrary to the order which was passed on 11 April 20012 on Chamber Summons 1992 of 2009 which was taken out by the heirs of the First Defendant. Since the heirs were already brought on the record as a result of the order which was passed on Chamber Summons 1992 of 2009 on 11 April 2012, the report of the Court Receiver had been rendered infructuous. In the circumstances, no further directions were necessary on the report of the Court Receiver. For these reasons, we allow the Appeal and set aside the impugned order of the learned Single Judge dated 11 April 2012. The Appeal is accordingly disposed of.

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There shall be no order as to costs.

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(Dr. D.Y.Chandrachud, J.)

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(S.C. Gupte, J.)

Smt. Mary John Gomes and Ors. v. Mrs. Ranjan Sukhtankar and Ors.

Case brief

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Smt. Mary John Gomes and Ors. v. Mrs. Ranjan Sukhtankar and Ors.

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