Ignatius Lobo vs Antoinette Rodrigues

Ashok Agarwal, J.—Admit.

Respondent waives service.

By consent appeal called out for hearing and final disposal.

The present appeal is filed by the original plaintiff seeking to impugn the order, dated 3rd June, 1992 passed by His Honour Judge Shri A.V. Nirgude (in vacation) of the Bombay City Civil Court refusing ad interim injunction restraining the respondent-defendant who happens to be the wife of the appellant-plaintiff from interfering with his right to enter and continue in occupation of the suit flat. The flat in question which is a rented premises, prior to the marriage stood in the name of the mother of the defendant. After marriage it was transferred in the name of the plaintiff. It continued to be in his name till about 1989. In 1989 by consent of the parties the flat was transferred in the name of the defendant.

The defendant filed M.J. Petition No. 1596 of 1990 and obtained an ex parte order of judicial separation. It is common ground that at that stage the plaintiff was residing in the suit premises.

The plaintiff learnt that the defendant intends to migrate to Canada. She is likely to physically dispossess the plaintiff and induct third parties in the premises. It is in these circumstances that the present suit came to be filed for a perpetual injunction. As already stated a prayer for an ad interim injunction contained in the Notice of Motion was rejected on the ground that it is not probable that after passing of the decree for judicial separation the plaintiff would continue to reside in the suit premises. In the appeal several documents have been relied upon for the purpose of proving that the plaintiff has continued in possession of the suit premises till the date of the suit i.e. the common ration card, electricity bills and the correspondence received by the plaintiff at the suit premises. In my judgment, the plaintiff has made out a prima facie case for grant of ad interim reliefs prayed for in the Notice of Motion.

In appeal the defendant has filed an affidavit in reply. In paragraph 4 of the affidavit she has averred that after the prayer for ad interim reliefs was rejected by the trial Court she has parted possession of the suit premises to one Charmaine Pereira. According to the defendant the said Charmaine Pereira is in exclusive possession of the premises from 3rd June, 1992. In my judgment, the aforesaid act on the part of the defendant in parting with possession is a, deliberate act in order to make the entire suit anfractuous .At this stage the plaintiff has prayed for amendment of his prayers both in the Notice of Motion and in the present appeal. The Plaintiff seeks an additional prayer for appointment of a Court Receiver. The prayer is granted. The necessary amendments be carried out during the course of the day.

In my view this is a fit case for appointment of a Court Receiver. The Court Receiver will take the actual physical possession of the suit premises either from the defendant if she is found in possession or from the aforesaid Charmaine Pereira who appears to have inducted mala fide merely in order to thwart the present litigation. On obtaining the possession the Court Receiver will induct the plaintiff as his Agent on usual terms but without payment of royalty. It is clarified that the plaintiff will be bound to continue to pay the rent and other outgoings in respect of the suit premises.

For the foregoing reasons the appeal is allowed. Ad interim order is passed for appointment of Court Receiver. The Court Receiver will obtain actual physical possession either from the defendant, if found in possession, or from Charmaine Pereira and induct the plaintiff in possession as his agent on usual terms but without payment of royalty.

In view of the fact that the defendant is the wife of the plaintiff there shall be no order as to costs.

Counsel for the defendant prays for stay of my order to enable him to challenge the same in appeal. Since, on the showing of the defendant, she is no longer in possession, the prayer is rejected. Expedite the issue of certified copy.

Receiver to act upon the certified copy of this order.