H.M. Kari Gowder vs H.M. Halan

N. Arumugham, J.—As the dispute among the parties herein relates to the same set of property with three distinct reliefs asked for in a suit,

which is pending disposal, with the consent of the Bar for the respective parties, for probing the identical question of law, all the three matters were

heard together and disposed of by delivering the common order.

The two appeals and the revision are directed by the first defendant by name Kari Gowder in the suit O.S.176/84, now pending before the

learned District Judge at Ootacamund in Nilgiris District, for the relief of partition, possession and so on, filed by the respondent herein. The parties

herein along with others are brothers owning extensive landed and house properties in and around Ootacamund in Nilgiris District like estates, tea

and coffee gardens, house properties, bank deposits and so on, which are the several items of the suit properties. The plaintiff, viz., the respondent

herein being the brother of the appellant/revision petitioner herein, claiming 9/40 share in all the items of the suit properties, on the basis that the

same are the joint family properties, laid the suit in the year 1984. By filing a written statement the appellant/revision petitioner herein being the 1st

defendant in that suit, mainly contended inter alia, that several items of the properties, particularly, the properties involved in these appeals and

revision are not the joint family properties, but however claimed them as his exclusive properties in his actual possession and enjoyment and having

denied the very claim of the plaintiff, he is resisting the suit. The trial of the suit commenced already and it appears recording of the oral and

documentary evidence on behalf of one party was almost over by now.

Even so, it appears that there was proceedings initiated u/s 145 of the Code of Criminal Procedure by the Executive Authorities and

consequently, the concerned Village Administrative Officer was put in charge of the properties involved in the applications as a Receiver, who by

the order of this Court on a prior occasion was removed from that assignment. Subsequently, on 14.9.1993 in Criminal R.C.523/93 the order

passed by the Revenue Divisional Officer, Coonoor, dated 19.7.1993, initiating Section 145 proceedings, was cancelled by this Court holding that

there was no scope for maintaining the said proceedings. While holding so, this Court found that the landed properties referred to, were found in

possession of Kari Gowder, who is the appellant/revision petitioner herein and the 1st defendant in the suit. In the last-two paragraphs of the

above order, I had the occasion to give the findings, which are extracted hereunder:-

I therefore do decide and declare that the ''A'' party Thiru H.M. Kari Gowder is entitled to possession of the disputed properties (as shown in

schedule below and retain such possession until evicted in due course of law and the rights over the properties are decided by competent Civil

Court and do strictly forbid any disturbance of his possession until such eviction.

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Village Survey No. Extent

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Nedugula 199 2.54 acres

204 1.41 acres

203 2.78 acres

200/1 1.85 acres

205 2.56 acres

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In view of the above decision, I hereby order u/s 145(6)(a) of the Cr.P.C. for the restoration of possession of the above lands to Thiru H.M. Kari

Gowder the (x''A''party). The attachment of properties ordered in Taluk proceedings No. MC No. 3/83 dated 7.8.94 is also withdrawn u/s

146(1) of Cr.P.C. from the Receiver and Village Administrative Officer Nedugula, and released in favour of the said ''A'' party and Thiru H.M.

Kari Gowder. The Receiver and Village Administrative Officer, Nedugula, is directed to hand over the attached properties and accounts to the

''A'' Party through the Tahsildar, Kotagiri, under proper acknowledgments"".

It appears that pursuant to the said order passed by this Court in the Criminal Revision Case above referred, the appellant/revision petitioner

herein got the actual possession of the properties, which are very much involved in these cases, viz., 5.31 acres of land situate in Survey Field No.

480 in Kothagiri village known as Hocholai Tea Estate with specified boundaries and 11 acres 4 cents of landed properties situate in survey Filed

Nos. 199, 204, 203, 200/1 and 205 of Nedugula Village known as Milidhane Tea Estate, consisting of valuable standing crops like silver oak and

other specified trees. While that being so, the trial commenced and the examination of the witnesses on behalf of the plaintiff was almost over by

recording oral and documentary evidence on his behalf. The rest of the evidence on behalf of the defendants is yet to commence.

In the meanwhile three applications were filed before the trial Court, viz., I.A. Nos. 736, 737 and 738 of 1993 by and on behalf of the plaintiff,

who is the respondent herein. The earliest of the applications I.A.736/93 was one praying for the appointment of a Commissioner by the trial Court

to go and visit the two items of the above properties and enumerate the existing trees standing thereon and to note down the cutting of the trees, if

any, and also to file a report thereon in the court on the ground that taking advantage of the possession of the landed properties by the 1st

defendant/appellant herein, he is cutting several valuable trees and removing it and thereby enriching himself to the detriment and prejudice of the

plaintiff, who is equally entitled to have a share in the property. The prayer asked for in the second application I.A.737/93 was for the appointment

of a Receiver to take charge of the said landed properties along with bank deposits on the same ground that the appellant revision petitioner is

making every one of his venture to obliterate and cut the existing trees and remove the money from the deposit. The last one I.A.738/93 is one

praying for granting of temporary injunction, pending disposal of the suit, restraining the appellant/revision petitioner herein and others and their men

and servants in any way obliterating or causing damages and cutting the existing trees in the suit property during the pendency of the suit.

These three petitions were resisted on behalf of the first defendant, who is the appellant/revision petitioner herein, by filing counter statement in

which it was contended inter alia that the plaintiff/respondent was not entitled to have the relief granted in his favour for the very reason that he was

all along scheming out in preferring case after case against this defendant and that, therefore, there were no merits at all in either of the petitioners.

In other words, a perusal of the counter statement filed on behalf of the appellant/first defendant would go to show that he has questioned the very

claim of the plaintiff in the suit, but however, not projected any material substance to the allegations made in the affidavit filed along with the three

petitioners.

On hearing the above three applications the Learned Judge on 27.1.1994 passed the orders disposing the above three application by appointing

a commissioner as prayed for and a receiver to taken charge of the properties and also granted a temporary injunction against the defendants as

prayed for by passing definite orders in all three applications.

Aggrieved at this, the first defendant in the suit by name Kari Gowder came forward with this Civil Revision Petition u/s 115 of the CPC and

filed two appeals against the orders passed in LA. Nos. 737/93 and 738/93 challenging their validity and correctness.

Mr. R. Krishnamurthy, the learned Advocate General, while pleading for the cause of the appellant/revision petitioner herein, mainly relied on

the order passed by me on 14.9.93 in Crl.R.C.523/93 holding that the properties very much involved in these appeal and revision are found to be

in actual custody and possession of the appellant/revision petitioner, who based his claim consistently from the very beginning that the suit

properties are his absolute self acquisitions and that, therefore, the same cannot be treated as the joint family properties and for the mere inclusion

of the same in the suit, it was contended that his possession and enjoyment cannot be curtailed. The learned Advocate General, while canvassing

the cause and grievance of the appellant/revision petitioner, has further stated the legal norm set out by the Courts of this country while exercising

its power, under Order 40, Rule 1 of the Code in appointing a Receiver to take charge of the property from the person, who is legally entitled to

has not at all been followed and that for the very reason the impugned order passed by the learned trial Judge in appointing a receiver in

I.A.737/93 is liable to be set aside. In so far as the reliefs granted in the other two applications are concerned, it was the endeavor of the learned

Advocate General to contend that the learned trial Judge has not identified the legal ingredients to grant equitable remedy of granting temporary

injunction from restraining a lawful owner from enjoying his property. All the said contentions centered round the suit filed by the respondent

herein, for the relief of partition, possession and so on which is in the halfway. While admitting that the decision to rendered in the suit after the full

trial is deemed to be the final conclusion, the learned Advocate General would contend that the reliefs granted by passing the impugned order

would certainly hamper and deprive the valuable right and perhaps the legal right of the appellant/revision petitioner, who is the 1st defendant in the

suit and that for the said reason alone, the impugned orders are to be set aside.

Per contra, Mr. Masilamani, the learned Senior Counsel would controvert every one of the contentions made by and on behalf of the

appellant/revision petitioner, by drawing my attention to the observations made by the learned Commissioner appointed by the trial Court in

I.A.736 of 1993, which demonstrably proves the very apprehensions and danger being perpetrated to the existing properties, viz., the valuable

standing trees at the handsand the behest of the appellant/revision petitioner,, which if allowed, all the sharers, who are entitled to the said item of

the properties would be totally disregarded and their rights will be taken away and that, therefore, the learned senior counsel would justify the

granting of the interim injunction as well as the appointing of Receiver to take charge of the properties involved, as well as deputising a

Commissioner for the purpose of enumerating the existing standing trees, cut trees and the stems, if any. In other words, the learned senior counsel

would totally justify the impugned orders passed by the learned trial Judge and plead for the rejection of the above appeals and the revision.

In the context of the above rival position the only question which arises before me for consideration is :-

Whether the impugned orders passed by the learned trial Judge in all the above three petitions are vitiated by any error of law, erroneous approach

and for any legal laches.

Several items of the suit properties, inclusive of item 1 to the extent of 5.31 acres in Survey Field No. 480 of Kotagiri Village known as

Hocholai Tea Estate and Schedule-II in an extent of 11.14 acres of Nedugula Village with all its superstructure, existing standing threes and so on,

with the various amounts in deposit at the Sub-Post Officer, Kotagiri, and State Bank of India, Kotagiri, the items in Schedule-III, are the

properties involved and deemed to be in the custody of the appellant herein. Admittedly, it is not in dispute that the appellant/revision petitioner is in

actual possession and custody of the petition mentioned properties above referred, after the disposal of the Criminal Revision case by this Court. It

was the claim of the respondent/plaintiff that since a week prior to the filing of the affidavit i.e., from 15.6.1993, the appellant herein has been

cutting some of the trees as seen from paragraph 3 of the affidavit in all the three petitions and in paragraph 5 he has claimed that the appellant had

deliberately laying waste in the suit properties out of spite and ill-will and that if allowed he will make illegal gain for himself whilst damaging the suit

properties. In all the affidavits filed in the three petitions, except the said averments, no more tangible overt-act has been specifically spelt cut by

and on behalf of the respondent herein. In the context of the suit being tried by recording the oral and documentary evidence adduced by the

plaintiff, if the averments referred to therein hare been taken to mean, one can easily identify that the appellant is alleged to have cut the valuable

trees standing in the suit property and removing the same for his own benefit to the total deteriment and deprivation of the right of the respondent

herein and the other sharers and that all such efforts are being taken under he pretext of the appellant being in possession of the same. To sustain

the prayer asked for the appointment of a Commissioner to visit the suit properties and to enumerate the existing valuable trees with its kind and

nature and enumerating the quantity of the same and to note down the cut trees if any and with its relative stems and to file a report thereon is an

equitable remedy, upon finding a prima facie case, and, even, the Court can grant the relief of appointment of Commissioner so as to enable the

respective parties and Court to have the first-hand knowledge abut the allegation and its counter allegations, and this cannot be disputed. In a

similar fashion, if the property itemised above or its superstructures or standing trees are obliterated or damaged or cut and removed by the person

with whom the custody of the suit property lies, then, in the contest of the pendency of the suit, the equitable remedy of injunction restraining such

person from causing such damage and act would have well to be granted is the judicial pronouncement, now being made available to enable the

respective parties to have the redressal before the Court of law. Merely for the reason that an alternative remedy is available to one of the sharers

like claiming damages cannot be countenanced by declining to grant such an equitable remedy as provided under Order 39, Rule 1 of Order 26

Rule 9 of the Civil Procedure Code. It is stated that prevention is better than cure, which concept must necessarily be the basis of the said legal

ratio, upon which the equitable remedy has been formulated and developed by the Courts of law in our land.

If the above ratio is to be made applicable of the facts of the instant case, it is noticed at this stage by having a mere casual reading of the

counter statement filed on behalf of the appellant herein in all the three petitions, which are almost identical in nature, that the very averments of the

cutting of the trees and removing the same for the purpose of enriching himself have not at all been denied by and on behalf of the appellant in any

form. What is seen to be contended is that the property absolutely belongs to him and that as such he is entitled to enjoy and that these petitions

are merely devices schemed cut to harass him and that no relief as prayed for could be granted. If such has the contention taken on behalf of the

appellant-revision petitioner, then I am totally unable to accept his grievance being canvassed in this appeal and revision. The cutting and removing

of the valuable standing trees in the schedule mentioned properties by the appellant-respondent under the pretext of his possession and custody

stands uncontroverted and it is not even challenged by and on behalf of the appellant-revision petitioner. This aspect would go to show the

substantiation of the averments made in the affidavits and the case of the respondent herein.

Perhaps it was on the above said facts identified by the learned trial Judge by basing the three cardinal principles for granting the equitable

remedy of injunction, the injunction prayer was granted against the appellant and consequently, to substantiate and to have a further detailed

accounting information, a Commissioner was appointed.

It was the consistent case of the respondent herein, as clearly spelt out in paragraph 6 of the identical three counter statements filed in these

cases that the Advocate Commissioner appointed in I.A. No. 736 of 1993 had inspected the petition mentioned properties and has submitted his

report and that as per the Commissioner''s report 11 stems of Silver oak trees were cut and removed and the girth of the stems varies from 1 to 2

feet, in Milidhane Tea Estate and 36 stems of trees cut varying in size from 6 inches to 1 feet in girth, out of which 33 are wattle tree stems and

three silver oak stems were cut and removed in Hocholai estate and that the said trees were used for making furnitures, doors, windows etc., and

the net value of the above trees would be more than Rs. 1,40,000/- and that the petitioner has made unjust enrichment at the cost of the plaintiff

and other two brothers.

Though several contentions have been raised in the counter statement repudiating the claim of the respondent, it has become necessary to refer

the report of the learned Commissioner appointed by the trial Court under one of the impugned orders, which report was dated 16.2.1995. A

perusal of the report filed by the learned Advocate commissioner above referred clinches the fact that he had visited the petition mentioned

properties after giving notice to the respective parties herein on 3.12.1994 about 11.00 A.M. The following are the observations made by him:

I gave notice to the petitioner/plaintiff and respondent/1st defendant and the advocate Receiver that I would be inspecting the petition mentioned

properties on 3.12.1994 at about 11.00 A.M. I visited the second schedule petition property, i.e., an extent of 11.14 acres of tea garden known

as ""Milidhane Tea Estate"" Nedugula Village on 3.12.1994 and enumerated the standing trees and also located the cut trees for which stems were

available. I found that there were 480 silver oak standing trees, One orange tree of small size and pear tree. I could located 11 stems of Silver Oak

trees cut. The girth of stems varies from 1 to 2 feet.

Thereafter I gave notice to the advocates on record as well as the receiver and visited the 1st item of the schedule mentioned property namely

Hocholai Estate"" in Survey Number 480 of Kotagiri Village measuring an extent of 5.31 acres on 15.2.1995 at about 2.00 P.M. and completed

the inspection around 5.00 p.m. I counted the standing trees. There are 133 Silver Oak trees, one small orange tree and one jungle tree. I could

located 36 stems of trees cut varying in sizes from 6 inches to 1 feet in girth, out of which 33 are wattle tree stems and 3 Silver Oak stems"".

In view of the observations made by the learned Advocate Commissioner upon his personal inspection one could, easily understand as to why a

specific stand denying of cutting and removing of the valuable trees in the suit properties has not been taken in the counter statement filed in the

three petitions. Though the Commissioner''s report dated 16.2.1995 was filed in the Court and came subsequently and not during the time when

the impugned orders were passed by the Court below, for the reasons indicated by me above, as per the settled judicial view, subsequent events

found relevant and having inter-action could be taken judicial notice of, and this would assume every importance and legal sanctity in the instant

case and that therefore, I am fully constrained to hold that the observations made by the learned Commissioner can certainly be looked into by the

Court of law while the parties are crossing their swords in the legal battle before the Court of law and in order to provide a legal remedy, however

interim it may be, it cold be definitely be based upon and looked into.

If I go through the impugned order passed by the learned trial Judge in a I.A. No. 737 of 1993, appointing a Receiver to take charge of the

suit properties, on the very finding and reasoning given by the learned Judge, I may not be inclined to sustain the same for the mere reasoning that

the learned Judge has not followed the legal mandate and the judicial pronouncement, while appointing the Receiver under Order 40 Rule 1 of Civil

Procedure Code.

In T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, , it was held as follows:

The appointment of a receiver is recognized as one of the harshest remedies which the law provides for the enforcement of rights and is allowable

only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril.

Therefore, this exceedingly delicate and responsible duty had to be discharged by the Court with the utmost caution and only when the five

requirements embodied in the words, ''just and convenient'' in Order 40 Rule 1 are fulfiled by the facts of the case under consideration.

These five requirements are:

The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

The court should not appoint a Receiver expect upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the

suit.

Not only must the plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency or danger of loss

demanding immediate action and one his own right he must be reasonably clear and free from doubt. The element of danger is an important

consideration.

An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause

irreparable wrong. It would be different where the property is shown to be in medio, that is to say, in the enjoyment of no one. And lastly,

The Court, on the application made for the appointment of a Receiver, looks to the conduct of the party who makes the application and will

usually refuse to interfere unless his conduct has been free from blame"".

It was also held in Muniammal v. Ranganatha Nayagar and Anr., 67 LW 1186 in the following words:

The principles which should guide courts in the appointment of a Receiver three in number. First of al, a plaintiff applying for the appointment of a

Receiver must show prima facie that he has a strong case and good title to the proprety special equity in his favour and the property in the hands of

the defendant is in danger of being wanted"".

I have had a preference on my part to add some views with the above legal ratio in a case held between A.R.N. Chinna Narayanan and Sree

Shyan Sayee Corporation and Ors. (1990 -2 L.W. 260) at page 261 for the following legal position :

A mere reading of Order 40 Rule 1, C.P.C. would made it clear that a Court can if the circumstances so warrant, pass an exparte interim order

appointing a Receiver, but for which, a notice should be issued to the party affected, thereby giving a chance to show cause against the order

passed. The above rule which provides that the Court may appoint a Receiver, ""Where it appears to the Court to be just and convenient"", far from

ruling out the applicability of that elementary rule of natural justice of hearing the affected party, embraces that concept within the expression ''just''

as an order, unless expressly provided to the contrary, cannot be said to have been justly made without affording the party affected or likely to be

affected by the order, a reasonable opportunity of being heard. The words, ''just'' and ''convenient'' stipulated in the above rule is so envisaged as

to the vesting of the mandatory obligation to the Court while exercising that obligation into a discretionary one with the condition that the

satisfaction of the Court is sufficient cause. This would virtually mean that the affected party must be heard before the appointment of a Receiver is

made"".

The five cannons of grounds propagated in the judicial pronouncement to be followed in the aforesaid paragraphs, in my esteemed view would

squarely come into operation to the facts of the instant case for the mere reasoning that the respondent has filed the suit claiming the relief of

partition and possession of his 9/40th share on the basis of the entire suit properties and the joint family properties and when the said suit is being

agitated among other grounds, particularly, when the properties mentioned in the petition are the absolute properties of the appellant herein, and

however it could be seen that in view of the dispute of shares it is certain that the respective parties are entitled to have a partial share in all the suit

properties. That apart, the contesting party is deemed to be in possession and custody of the petition mentioned property with all its valuable trees,

which is a vital proof and if the cutting and removing of the same either in part or in whole, while it remains in the custody of one, would

demonstrably prove the imminent danger to the existing value of trees and that therefore the Courts of Law are totally entitled to take cognizance of

the imminent danger to the properties and that therefore the facts of the instant case would clearly come into operation of the above law in all the

fours. Though the learned trial Judge has virtually failed to follow and overlooked the said legal exercise, but for the reason aforesaid with all

esteem and constrain, I would like to express my countenance with the arguments advanced by the learned senior counsel Mr. G. Masilamani, in

this case. While doing so with great constraint and esteem, I am totally unable to endorse my view with the contention of the learned Advocate

General.

The Bar is unanimous in claiming that the suit for the relief of partition and possession was filed in the year 1984 and pending for the last more

then 11 years for the reason of very many extraneous considerations and that even so the legal evidence adduced on behalf of the plaintiff was

almost over. The remaining part is only left for the appellant-revision petitioner herein to adduce his legal evidence to substantiate his case. It is

rather unfortunate that the bickerings emerged out of the same blood and brotherhood prolonged for such a long time; enabling the respective

parties to indulge in the long legal battle with the waste of very many items and energy. It is therefore under the circumstances, to provide an

immediate remedy to the aggrieved party, who is well identified by me in the court, and who is the respondent herein, during the pendency of the

case for the remedy provided already by the trial Judge and at the same time, the ends of justice compels me, as consented to by the Bar for the

respective parties, to direct the learned trial Judge to take up the trial of the case on a day-to-day basis and proceed with the same by avoiding

unnecessary adjournments and to dispose the case on merits, in accordance with law within the time frame of 10 weeks from the date of receipt of

a copy of this order. In the meanwhile, the impugned order passed by the learned trial Judge in all the three applications granting temporary

injunction and appointing a Receiver is to continue, thus after having considered the very gamut of the case and the rival contentions advanced, I do

not come across with any erroneous approach adopted by the learned trial Judge except the one which I have pointed out above.

In the result, for the aforesaid reasoning and in the light of my directions given above, the two appeals as well as the revision fail and

accordingly they are dismissed. The trial Judge is hereby directed to carry out my directions without any laches or delay and for which the Bar for

the respective parties have to cooperate. However, on the facts and in the circumstances of the case, there will be no order as to costs.