Mani Lal vs IIIrd Addl. District and Sessions Judge and Others

D.K. Seth, J.—This is an application for vacating the stay order granted by this court. The hearing of the said application would in fact decide the controversy involved in the writ petition between the parties. The learned counsel for the parties have, therefore, agreed to address the court on merit for a final decision.

The order dated 28.7.1995 passed by the learned IIIrd. Additional District Judge, Kanpur Dehat in Civil Misc. Appeal No. 35 of 1994 which learned counsel for the Respondent contends to be a Misc. Appeal has been challenged. The order appointing receiver by the learned trial court by an order dated 11th May, 1994 passed by the learned 1st. Additional Civil Judge, Kanpur Dehat in Suit No. 114 of 1993 was the subject-matter in the appeal. Learned trial court, though it found that there was no sufficient case made out for grant of injunction but on the ground that both the parties are claiming possession, therefore, receiver was appointed. While the learned lower appellate court reversed the said order on the ground that the Plaintiff had no possession. On the other hand he found further that the Defendant was in possession and by reason of Sub-rule (2) of Rule 1 of Order XL, CPC the Defendant could not be removed from possession of the property since the Plaintiff did not have any legal right to remove the Defendant from such possession.

Learned counsel for the Petitioner contends that the lower appellate court did not apply its mind to the finding of fact by the learned trial court that the Plaintiff was in possession of the property, therefore, the said order cannot be sustained. He vehemently argued that sufficient case for appointment of receiver was made out. According to him by reason and by virtue of the agreement to sell he has acquired an interest in the property and has a right to remove the Defendant.

Learned counsel for the Respondent on the other hand contends that the learned appellate court having come to a clear finding that the Defendant was in possession and the Plaintiff was not in possession. The said finding being a concurrent finding for the purposes of interlocutory order this court should not interfere with the same. According to him there is no infirmity in the order impugned so as to bring the same within the scope of ratio decided in the case of Ganga Saran Vs. Civil Judge, Hapur, Ghaziabad and others,

After having heard learned counsel for the parties it appears that the learned trial court in its order which is Annexure-5, as translated at the bar, had held that it could not be denied that at the first sight it appears that the Plaintiff did not have real possession. At the same time the learned trial court has further found that both the parties are claiming possession in respect of the properties. The question of possession can be decided only at the final decision. In that view of the matter though refused to grant injunction the learned trial court had proceeded to appoint receiver. Nothing has been drawn to my notice by the learned counsel for the Petitioner to point out that the learned trial court has held that the Petitioner has acquired any right, title or interest in the property by reason of the said agreement on account whereof he had acquired the right to remove the Defendant from possession of the property. On the other hand learned counsel for the Respondent, while translating at the bar, pointed out from the order of the learned lower appellate court that the lower appellate court had found, that from the Khasra, titles, that the Defendant is the owner and is in possession of the property. On the basis of the irrigation receipts : it had also found that the Defendants have been paying the irrigation charges. Therefore, the Plaintiffs claim for possession was found to be untrue. Thus, from the papers it found that the Defendant is the owner in possession and had been cultivating the properties and that the title of the Defendant is not disputed. Learned lower appellate court has also recorded that in view of Sub-rule 2 of Rule 1 of Order XL, CPC no right could be established by the Plaintiff to remove the Defendant from possession of the property.

Thus, it appears that neither the learned trial court had found even prima Jacie that the Plaintiff is in possession. On the other hand the learned lower appellate court has found the Defendant to be in possession. In the facts and circumstances of the case the attention of the court has not been drawn to anything so as to prima facie show that the Plaintiff had acquired any title on the basis of the alleged agreement for sale.

Mere assertion by both parties to be in possession has never been considered to be a sufficient ground for appointment of receiver. When prima facie the trial court had found that the Defendant is in possession and considered it a case unlit for grant of injunction, it cannot allow receiver to be appointed in such case. Inasmuch as for grant of injunction a prima facie case coupled with balance of convenience is to be made but for appointment of receiver a case little stronger than prima facie and just and convenient is required to be principles guiding the discretion of the court for appointment of receiver may be summarised as:

(a) it is dependent on the view taken by the court with regard to the purpose of protecting the right of all parties and subject-matter;

(b) unless the Plaintiff is able to make out a prima facie case that he has an excellent chance of success in the suit court should not appoint a receiver;

(c) the Plaintiff shall not only show a case of adverse and conflicting claims to property but also he must show some emergency or danger or loss demanding immediate action and his own rights are reasonably clear and free from doubt:

(d) order having the effect of depriving a Defendant of a de facto be in medio i.e., in the enjoyment of none;

(e) conduct of the party who must come with clear hands is also a relevant consideration, vide T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, ; Srinivash Rao v. Baba Rao AIR 1970 Mys 141 ; S.B. Industries, Freegunj and Another Vs. United Bank of India and Others, ; Khaderan Ram and Others Vs. Sharda Prasad and Others,

The expression "Just and convenient" used in Order XL, Rule 1, CPC have been borrowed from English Judicature Act which greatly enlarged the power formerly exercised by the court of Chancery. This expression does not mean that the court has to appoint receiver simply because the court thinks it convenient. It Is to be done according to legal principles taking into account all the circumstances of the case for protection of the right of all the parties interested in the controversy and in the subject-matter and for prevention of injury based on the fact that there is danger to the property and no other adequate means of saving it is available and that there is reasonable apprehension of waste, malversation, misappropriation or removal of property which may result in irreparable loss, vide Prabhat Misra v. Jai Shanker Tripathi ALJ 672; Dibakar Naskar v. Rotary Village 82 CWN 44 . The primary consideration should be to see how the suit property is best preserved without being wasted Jambagavalli Ammal Vs. Govindaraja Kandlar,

Though a party in possession can be removed from possession even if the Plaintiff does not have a present right to remove him Hiralal Patni Vs. Loonkaram Sethiya and Others, , when it is just and convenient but convenience of a party is not the Justification for depriving the opposite party of his possession. It is the competing interest that is to be weighed and the test is whether the order is Justified when viewed in that context Mohammed Hidayat Ali Vs. Alopi Shanker and Others, Just and convenient denotes what is practicable and what interest of justice demands. It depends on the facts of each case. Receiver cannot be appointed against a bona fide possessor with legal title unless the property is in danger of being wasted, destroyed or lost Vijay Kumar v. B.K. Thappar AIR 1976 J&K 30.

The present revision arises out of a suit for specific performance of contract of sale. Appointment of receiver in such a suit is not called for where the Defendant is in possession and there is no apprehension of damage or deterioration of the property Hari Mohan Sharma v. C.S.R. Poultry Research AIR 1993 Del 293.

Nothing has been pointed out by the learned counsel for the Petitioner to show that the above principles were attended to by the learned trial court while passing the order for appointment of receiver. Neither the attention of this court was drawn to any such circumstances as above were made out or had been shown by the Plaintiff in the present case.

In the facts and circumstances of the case, therefore. I do not find any reason to interfere with the order impugned particularly when nothing has been brought to the notice of the court to show that there has been any violation of the fundamental principles of law by reason whereof this court can interfere with the order in exercise of writ Jurisdiction following the ratio decided in the case of Ganga Saran (supra).

In view of these observations, this writ petition fails and is accordingly dismissed. There will, however, be no orders as to costs.

However, this court hopes and trust that the hearing of the suit may be expedited.