Mohammad Shafi Chaman and Another vs Abdul Rashid Najar and Others

Mansoor Ahmad Mir, J.—This revision petition is directed against the order dated 16th May, 2005 passed by learned Munsiff, Anantnag in

a suit titled Mohammad Shafi Chaman and Ors. v. Abdul Rashid Najar and Ors., whereby and where-under application for removal of received

sic (receiver) moved by the plaintiffs came to be rejected, which shall be hereinafter referred to as impugned order.

It is necessary to notice brief facts of the case herein;

Petitioners-plaintiffs filed a civil suit before the learned Munsiff, for dissolution of partnership and alongside the suit filed an application for

appointment of receiver which came to be allowed vide order dated 27th November, 2002 whereby and where-under receiver came to be

appointed and one G.A. Thakur came to be appointed as receiver.

Feeling aggrieved of the said order defendant No. 1-Abdul Rashid Najar filed an appeal before the District Judge, Anantnag, which came to be

partly allowed vide order dated 18th March, 2003 and the order of appointment of receiver dated 27th November, 2002 came to be modified.

It is profitable to reproduce the operative part of the order dated 18th March, 2003 herein, which reads as under:

Now the question for consideration is who is to be appointed as receiver? The partnership business consisted of hotel business namely Pamposh

Hotel. The nature of business is such which needs its own way of dealing with the customers and suppliers. The business needs full time control and

supervision and staff to run the hotel business so that it makes profit to cater the need of manpower to run the hotel and also to the parties. There

are no compelling circumstances to allow a stranger to take over the business and run it. The appellant is admittedly running hotel for last eight

years. It will be just and convenient to appoint appellant Ab. Rashid Najar as receiver....

Learned appellate court appointed Abdul Rashid Najar-partner-defendant as receiver instead of stranger-G.A. Thakur, Advocate. The parties

have not challenged the said order. Thereafter, plaintiff moved application before learned Munsiff for removal of the receiver-defendant No. 1 on

the grounds taken in the application. Learned Munsiff dismissed the application on the ground that the trial court is not having jurisdiction to enter

upon the application for the reasons that receiver came to be appointed by the appellate Court. Learned Munsiff has not dismissed the application

on the point that no ground is made out for removal of the receiver.

The moot point for consideration is whether the trial court is having the jurisdiction to vary/alter/modify the interim orders passed by it or by

appellate court/ revisional court during the pendency of the lis?

It is beaten law of the land that if an interim order is passed by trial court- appellate court-revisional court, the said order(s) can be varied-al-

tered-modified till suit is finally disposed of by way of decree but it is for the trial court to hold whether it is having jurisdiction and power and

whether circumstances warrant for passing such order(s).

The trial court/ appellate court can pass such interim order(s) in the interest of justice in order to protect the subject matter of the suit and the

interest of the party during pendency of the lis in terms of Orders 39, 40 CPC read with Section 94 and 151 of the Code.

The Apex Court has in case titled Gangadharrao Narayanrao Majumdar Vs. The State of Bombay and Another, , held that the court is clothed

with ample powers to extend the time and pass such orders in the interests of justice in order to do justice between the parties. Their lordships

have further held that the court has powers to extend time even if the court has passed pre-emptive procedural orders.

Applying the test to the instant case, the trial court is having powers to pass any interim order(s) till suit is finally disposed of by way of decree.

The opinion of the trial court that it lacked jurisdiction to pass order(s) is not legally tenable.

The question is whether the trial court could, in the given circumstances, remove the receiver?

As discussed hereinabove, trial court appointed receiver but appellate court modified the order to the extent of appointment of receiver as

stranger and appointed defendant-partner as receiver.

Order 40 of CPC mandates and provides that how receiver can be removed.

In the given circumstances it was for the trial court to ascertain whether allegations contained in the application justify the change of receiver

and whether it was in the interests of partnership firm to appoint stranger as receiver. The trial court has not discussed this aspect of the case.

The argument of learned Counsel for respondent that revision petition is time barred is devoid of any force.

Argument of learned Counsel for respondent that revision petition is not competent because impugneud order is appealable is also devoid of

force because appeal was to be filed before the District Judge and not before this Court. This court can exercise revisional jurisdiction when

appeal lies to District Court and not to this court.

Having glance of the above discussion, this revision petition is allowed, impugned order is set-aside and the trial court is directed to decide the

application keeping in view the facts and circumstances of the case and the law applicable. It is however, made clear that trial court shall not get

influenced by any observation made by this court.

Registry is directed to send copy of this order to the trial court for information and compliance.