AJN v. Domnik Thomas Nunis & Ors.

Mr. Rakesh Agarwal for the appellant. Mr. R.U. Singh for the respondents. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 1ST OCTOBER, 2008. P.C. :-

By impugned order dated 16/6/2008, learned Single Judge has dismissed the notice of motion taken out by the appellant/plaintiff praying for appointment of the Court Receiver, High Court, Bombay and, in the alternative, for an order of injunction restraining the respondents/defendants from parting with possession of the suit property. The suit is filed under section 6 of the Specific Reliefs Act. Learned Single Judge has while AJN 2 dismissing the notice of motion observed that the appellant was unable to point out any material to show his prior possession within six months immediately preceding the suit.

Notice of Motion No.3148 of 2008 was taken out by the appellant/plaintiff under Order XXXXIII Rule 2 read with Order XXXXI Rule 27 of the Code of Civil Procedure, 1908 praying that he may be permitted to produce additional documentary evidence. On 17/9/2008, Division Bench of this court (S.B. Mhase & R.V. More, JJ.) noted that the respondent had no objection to allowing the notice of motion for production of additional documents. Notice of Motion No.3148 of 2008 was made absolute in terms of prayer clause (a). Prayer clause (a) of the notice of motion reads as under:

(a) That the Appellant/original Plaintiff herein may be permitted to produce and read additional documentary evidence exhibited to the affidavit in support of this motion (Exhibit B) which are material to decide the motion and appeal and issues between the parties hereto under the provisions of Order XXXXIII rule 2 read with Order XXXXI rule 27 of the CPC

. AJN 3 As a consequence, there are certain documents on record today, which according to the appellant/plaintiff establish his possession.

We have heard learned counsel appearing for the appellant/plaintiff, at some length. We have also heard learned counsel appearing for the respondents.

Though we are not expressing any final opinion as to whether the appellant/plaintiff could be said to be in possession of the suit premises six months preceding the filing of the suit, looking to the nature of documents produced by him, we feel that in the interest of justice the appellant/plaintiff must get a chance to establish his alleged possession. We, therefore, feel that the impugned order must be set aside and the matter should be remanded so that the appellant/plaintiff gets a fair chance to establish his alleged possession. Needless to say that the respondents/defendants will also have a chance to refute all the contentions raised by the AJN 4 appellant. Hence, we pass the following order :

Appeal is disposed of in the aforestated terms. [SMT. RANJANA DESAI, J.]

[K.K. TATED, J.]