Judgment : 1. The Applicants have filed the above Petition for the following reliefs: “(a) That this Hon’ble Court be pleased to retrospectively grant formal leave to the Applicants for having continued to prosecute RAE Suit 809/3046 of 1982 before the Small Causes Court, Mumbai for the period (said to be 11 months) when the Court Receiver had been appointed and was said to have been in possession of Flat 4, 1st floor, Dhun-Abad, 106, Bhulabhai Desai Road, Mumbai-400 036. (b) In the alternative to prayer (a) above, the Applicants pray that the grant of leave be dispensed as not required or not necessary.” 2. The facts as stated by the Applicants, are briefly set out hereunder: 2.1 The Applicants, as Trustees, under an Indenture of Trust dated 6th October, 1937, are the owners and landlords of a building known as “Dhun Abad” situate at 106, Bhulabhai Desai Road, Mumbai-400 036 (hereinafter referred to as “the said Building”). 2.2 In May 1982, the Applicants filed R.A.E. Suit 809/3046 of 1982, in the Small Causes Court, Mumbai (“Small Causes Court Suit”) seeking possession of Flat No.4 on the first floor of the said Building (hereinafter referred to as “the suit flat”), inter alia, on the grounds of (i) non-payment of rent, (ii) sub-letting, (iii) carrying out additions and alterations of a permanent nature. The original Defendants to the Small Causes Court Suit (in the order arrayed therein) were: (1) Plaintiff No. 1 in the above Suit. (2) Mr. Satish Goel … Illegal sublettee. (3) Mr. B.M. Chakravarthi … Illegal sub-lettee. 2.3 The original defence of the Defendants in the Small Causes Court Suit, in their joint written statement dated January, 1984, was that Defendant Nos. 2 and 3 to the Small Causes Court Suit (referred to above) had no interest in the suit flat and were not residing in the suit flat and Plaintiff No. 1 herein (Defendant No.1 to the Small Causes Court Suit) was the sole tenant of the suit flat. 2 and 3 to the Small Causes Court Suit (referred to above) had no interest in the suit flat and were not residing in the suit flat and Plaintiff No. 1 herein (Defendant No.1 to the Small Causes Court Suit) was the sole tenant of the suit flat. 2.4 On 19th March, 1999, as a response to the Applicants drawing the attention of the Small Causes Court to the fact that the Plaintiff No. 1 herein (Defendant No. 1 in the Small Causes Court Suit) was residing in an ownership flat elsewhere and had several other residential flats, the written statement was amended to take a plea that though the suit flat had been taken in his name and the rent receipts had been issued in the individual name of the Plaintiff No. 1 herein (Defendant No. 1 to the Small Causes Court Suit), the same was for the purposes of providing accommodation to employees of Bombay Soap Factory, a Partnership Firm of which he was a Partner. 2.5 The Applicants therefore in April 2010, amended the Plaint to add Salim A. Oomerbhoy (Defendant No. 3 herein), Imtiaz Sattar Oomerbhoy (Plaintiff No. 2 herein), Rashid Sattar Oomerbhoy (Defendant No. 2 herein), Majid Oomerbhoy (Defendant No. 1 herein) and Mrs. Khatija Sattar Oomerbhoy as Defendant Nos. 4, 5, 6, 7 and 8, who are said to be the Partners of Bombay Soap Factory. This amendment was out of abundant caution and necessitated by the new plea of representative tenancy taken by the Defendant No. 1 in the Small Causes Court Suit, who is the sole recognized tenant of the Applicants. 2.6 In their joint written statement filed on 8th September, 2010, the heirs of Defendant No. 1 herein (being Defendant Nos. 7(a) to 7( c) in the Small Causes Court Suit), for the first time alluded to the fact that the Court Receiver of this Court had been appointed as the Receiver of the suit flat for the period 1991 to 1996 and thereafter the Receiver was discharged in view of the withdrawal of the Court Receiver Suit in the High Court. 2.7 The Applicants were till then unaware of even the appointment of the Court Receiver for the suit flat. According to the Applicants, the Court Receiver never informed the Applicants that he had taken physical possession of the suit flat. 2.7 The Applicants were till then unaware of even the appointment of the Court Receiver for the suit flat. According to the Applicants, the Court Receiver never informed the Applicants that he had taken physical possession of the suit flat. According to the Applicants, there are serious doubts about the plea that the Court Receiver took possession of the suit flat, since none of the indicia/incidents of the Court Receiver taking possession are present in this case. More particularly the evidence given by the Assistant to the Court Receiver, in the Small Causes Court Suit has established that: (a) at the time when possession of the suit flat was said to have been taken, no notice/intimation was given to the Applicants/landlords; (b) this being despite the wall outside the suit flat having a prominently painted notice stating that the suit flat was the subject matter of an eviction suit where the Court had granted injunction etc.; (c ) no rent was paid/tendered by the Office of the Receiver to the Applicants/Landlords; (d) no security guard had been appointed to guard the suit flat; (e) the Office of the Court Receiver could not say whether any independent verification had been done as to who was in possession of the suit flat and in what right/capacity, despite being expressly directed to do so vide Order dated 14th October, 1991, of this Court appointing a Receiver; (f) in any event, the Receiver claimed to have been in possession only for 11 months after taking possession in December 1991. 2.8 Although no pleading has been taken in the written statement of any of the Defendants in the Small Causes Court Suit, that the suit has been continued despite the suit flat being said to be custodia legis, the Applicants have been legally advised that since one of the heirs of Defendant No. 1 herein (Defendant No. 7 (b) to the Small Causes Court Suit) had examined the Court Receiver as his witness, this plea may be taken at the time of arguments in the Small Causes Court Suit. The Applicants have been advised that any such plea (if taken) is liable to be rejected as impermissible and/or without merit. The Applicants have been advised that any such plea (if taken) is liable to be rejected as impermissible and/or without merit. The Applicants have however been advised that out of abundant caution (to save valuable time in deciding any such objection), the Applicants should formally either seek leave of this Court for having continued the Small Causes Court Suit for the period when the Court Receiver was said to be in possession of the suit flat or seek dispensation of leave, as not being necessary. 3. The Applicants have therefore filed the above Petition seeking reliefs set out in paragraph 1 above. It is submitted on behalf of the Applicants that the Receiver, despite being aware of the Small Causes Court Suit, never objected to its continuance. It is further submitted that once the Receiver stood discharged, neither can an objection be raised by persons other than the Receiver, nor can such an objection be available or survive. The Applicants have submitted that in any event they reiterate that at all relevant times they were unaware of both the appointment and/or claimed possession of the Court Receiver and had therefore continued to prosecute the Small Causes Court Suit bona fide. It is submitted that the Applicants have the highest respect for this Court and have not intentionally attempted to do anything which could be construed as interference with an asset which was custodia legis. Leave has been sought out of abundant caution only so as not to afford anyone a needless technical defence and an opportunity to delay the Small Causes Court Suit further. 4. The Learned Advocate appearing for Nadeem Majid Oomerbhoy, son of original Defendant No. 1, has submitted that the Court Receiver stood appointed in respect of the suit flat pursuant to an Order dated 4th October, 1991, and the Court Receiver was discharged only in the year 1996. Hence the Court Receiver was appointed for a period of five years and not for 11 months as alleged. It is submitted that after discharge of the Court Receiver, the Court Receiver has not handed over possession of the suit flat to any person whomsoever. This fact is clear from the evidence given by the Second Assistant of the Court Receiver in the Small Causes Court Suit. It is submitted that after discharge of the Court Receiver, the Court Receiver has not handed over possession of the suit flat to any person whomsoever. This fact is clear from the evidence given by the Second Assistant of the Court Receiver in the Small Causes Court Suit. It is submitted that the Applicants have incorrectly stated that they were unaware that the Court Receiver was appointed in respect of the suit flat in Suit No. 3424 of 1991 until the same was mentioned in the written statement dated 8th September, 2010. It is submitted that the Applicants are therefore guilty of suppressing facts and making incorrect statements on oath and deserve no relief as prayed for or otherwise from this Court. It is submitted that the relief sought by the Applicants cannot be granted and the Petition deserves to be dismissed. Similar submissions are made by the learned Advocate appearing for the other heirs of Shri Majid Ahmedbhai Oomerbhoy, original Defendant No.1. 5. The Learned Advocate appearing for the Applicants has in rejoinder denied and disputed all the allegations made by the heirs of the original Defendant No. 1 and has reiterated that until the written statement dated 8th September, 2010, was filed, they were not aware that the Court Receiver was appointed in respect of the suit flat. The Applicants have also relied on an Order passed by this Court (Coram: Smt. Roshan Dalvi, J.) dated 4th September, 2008, wherein it is clarified that the Court Receiver was discharged on 2nd December, 1992. It is submitted that the Applicants have not made any averments in the Petition which are incorrect and have not suppressed any facts from this Court. 6. I have perused the above Petition and the Affidavits filed by the parties. I have also considered the submissions advanced by and on behalf of the parties. In my view, there is nothing on record to show that prior to the filing of the written statement dated 8th September, 2010, the Applicants were aware of the fact that the Court Receiver was appointed in respect of the suit flat in Suit No. 3424 of 1991. Admittedly the Office of the Court Receiver has not informed the Applicants (as landlords) that the Court Receiver, High Court, Bombay, has been appointed as Receiver in respect of the suit flat. Admittedly the Office of the Court Receiver has not informed the Applicants (as landlords) that the Court Receiver, High Court, Bombay, has been appointed as Receiver in respect of the suit flat. In my view, there is no provision in law prohibiting grant of leave retrospectively to a party for having continued to prosecute a suit during the period when a Court Receiver has been appointed in respect of the suit property. The Court can after considering the facts and circumstances of a given case, in the interest of justice, retrospectively grant leave for having continued a suit during the period when the Court Receiver was appointed in respect of the suit property. I am fortified in my view by the Judgment of the Hon’ble Supreme Court in the case of Everest Coal Company (P) Ltd. vs. State of Bihar and others (1978) 1 SCC 12 ).Paragraph 4 of the said Judgment is relevant and reproduced hereunder: “The laconic affirmance by the High Court of the trial court’s order has necessitated the appellant’s challenge of its propriety and legality. Instead of leaving the matter ‘astrologically’ vague and futuristically fluid, we shall state the legal position and settle the proposition governing this and similar situations. When a Court puts a receiver in possession of property, the property comes under Court custody, the receiver being merely an officer or agent of the Court. Any obstruction or interference with the Court’s possession sounds in contempt of that Court. Any legal action in respect of that property is in a sense such an interference and invites the contempt penalty of likely invalidation of the suit or other proceedings. But, if either before starting the action or during its continuance, the party takes the leave of the Court, the sin is absolved and the proceeding may continue to a conclusion on the merits. In the ordinary course, no Court is so prestige-conscious that it will stand in the way of a legitimate legal proceeding for redressal or relief against its receiver unless the action is totally meritless, frivolous or vexatious or otherwise vitiated by any sinister factor. Grant of leave is the rule, refusal the exception. After all, the Court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the receiver represents neither party, being an officer of the Court. Grant of leave is the rule, refusal the exception. After all, the Court is not, in the usual run of cases, affected by a litigation which settles the rights of parties and the receiver represents neither party, being an officer of the Court. For this reason, ordinarily the Court accords permission to sue, or to continue. The jurisdiction to grant leave is undoubted and inherent, but not based on black-letter law in the sense of enacted law. Any litigative disturbance of the Court’s possession without its permission amounts to contempt of its authority; and the wages of contempt of Court in this jurisdiction may well be voidability of the whole proceeding. Equally clearly, prior permission of the Court appointing the receiver is not a condition precedent to the enforcement of the cause of action. Nor is it so grave a vice that later leave sought and got before the decree has been passed will not purge it. If, before the suit terminates, the relevant Court is moved and permission to sue or to prosecute further is granted, the requirement of law is fulfilled. Of course, failure to secure such leave till the end of the lis may prove fatal.” 7. Again, in my view, no harm, loss, damage, injury or prejudice will be caused to the Defendants, if the leave as sought for is granted by this Court, whereas grave harm, loss, damage, injury and prejudice may be caused to the Applicants if the leave as sought for is not granted. 8. In the circumstances I pass the following Order: (i) Leave is granted retrospectively to the Applicants for having continued to prosecute RAE Suit No. 809/3046 of 1982 before the Small Causes Court, Mumbai, when the Court Receiver had been appointed and was in possession of Flat No. 4, 1st floor, Dhun-Abad, 106, Bhulabhai Desai Road, Mumbai-400 036. The above Petition is disposed of with no order as to costs.