Mohd. Tajuddin vs Smt. Muneerunnisa Begum and Others

B. Seshasayana Reddy, J.—This Civil Miscellaneous Appeal is directed against the order dated 12-08-2009 passed in I.A. No. 141 of 2009 in I.A. No. 69 of 2009 in O.S. No. 2142 of 2005 on the file of the IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad whereby and whereunder the learned Additional Senior Civil Judge allowed the application filed under Order XL Rule 1 C.P.C. appointing Sri J. Rama Mohan Rao, Advocate, as receiver to take custody/charge of the business of Janta Service Station of Petrol and Diesel and Janta Weigh Bridge.

The appellant is the 3rd defendant in O.S. No. 2142 of 2005 on the file of the IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad.

For the sake of convenience, the parties herein are referred to as arrayed in the suit.

The plaintiff filed the suit for partition and separate possession of her 4.38% share in all the suit schedule properties. More precisely, the prayer sought for in the suit reads as hereunder:

A decree for partition and separate possession in respect of item No. 1 to 7 of schedule "I" properties be passed in favour of the plaintiff by allotting 4.38% share in all the properties to her with meets and bounds and in case the partition is practically not possible in meets subject to sale by public auction and out of the sale proceeds 4.38% share amount be ordered to be paid to plaintiff.

A decree for partition in respect of schedule "II" "III" properties passed in favour of the plaintiff by allotting 4.38% share to her it by ordering to put to sale the same and out of the sale proceeds 4.38% share amount be ordered to be paid to plaintiff.

A decree of consequential perpetual injunction is passed in favour of the plaintiff and against the defendants restraining them from alienating transferring or creating any type of charge over schedule properties and from changing its existing structure a nature till the plaintiffs claim is settled in full and final.

Costs of the suit may be awarded.

Any other relief or relieves for which the plaintiff found entitled may also be granted.

The plaintiff filed the impugned petition under Order XL Rule 1 read with 151 C.P.C., seeking appointment of a receiver to take charge of the business of Janta Service Station of Petrol and Diesel and Janta Weigh Bridge and to collect the daily business amount, profits and deposit the same before the Court.

It is stated in the affidavit filed in support of the petition that defendant No. 3 alone is doing business since the death of his father and he alone is enjoying the business of the Petrol Pump and Weigh Bridge and is not paying any amount to the plaintiff towards her share. For better appreciation, I may refer paragraph No. 3 of the affidavit filed in support of the receiver appointment application, which reads as under:

It is further submitted that one of the matruka property that is item No. 7 of the plaint schedule is the Janta Service Station of Petrol and Diesel and Janta Weigh Bridge bearing Municipal No. 8-13-96 admeasuring 2390 square yards in survey No. 49 situated at Bombruknu Dowla, village, Mir Alam Tank, R.R. District admittedly this property is a matruka property as respondent No. 3 herein who is the defendant No. 3 in the main suit admitted in his written statement that the said property is left by his deceased father and the business was started by his deceased father and the respondent No. 3 alone is running the said business.

The defendant No. 3 filed the counter affidavit resisting the application for appointment of receiver.

The learned Additional Senior Civil Judge, on considering the material brought on record and on hearing the Counsel appearing for both the parties, proceeded to allow the application by order dated 12-08-2009. The said order is under challenge in this appeal.

On 15-10-2009, an interim suspension of the order impugned in this appeal came to be granted vide CMAMP No. 1920 of 2009. Subsequently, the plaintiff filed CMAMP No. 1991 of 2009 with a prayer to vacate the interim order dated 15-10-2009 passed in CMAMP No. 1920 of 2009. When the vacate stay petition came for consideration, with the consent of the Counsel appearing for the parties, the appeal itself is taken up for final disposal.

Heard the learned Counsel appearing for the appellant -defendant No. 3 and the learned Counsel appearing for respondent No. 1 - plaintiff.

Learned Counsel appearing for the appellant - defendant No. 3 submits that the trial Court has committed error in observing that there are waste and damage to the petition schedule property without there being any material to substantiate the same. Learned Counsel took me to the affidavit filed in support of the receiver appointment application to convince that there is no such allegation of waste and damages pressed into service by the plaintiff. Learned Counsel also contended that the trial Court ought to have considered the offer made by the defendant No. 3 to deposit Rs. 2,86,721/- to the credit of the suit so as to safeguard the interest of the plaintiff, even in the event of her success in the suit.

Learned Counsel appearing for the 1st respondent - plaintiff submits that the appellant - defendant No. 3 has been managing the Petrol Pump since 1999 and no part of the income has been given to plaintiff. A further submission has been made that the trial Court has considered the material brought on record in right perspective and recorded a finding with regard to waste and damage and proceeded to appoint a receiver to take custody of Janta Service Station of Petrol and Diesel and Janta Weigh Bridge and the order passed by the trial Court does not warrant interference.

In support of his submissions, the learned Counsel appearing for the 1st respondent - plaintiff placed reliance on the decision of this Court in Chavali Venkataswami Vs. Chavali Kotayyas and Others, , the decision of the Karnataka High Court in Ganapati (since deceased by L.Rs.) and Ors. v. Smt. Sukri (since deceased by L.Rs.) and Anr. AIR 2009 Kant 667 and also the decision of the Supreme Court in Kasturi Bai and Others Vs. Anguri Chaudhary, .

In Kasturi Bai''s (3 supra) case, the order of the appellate Court in appointing a receiver for collection of rents came to be affirmed by the Supreme Court on the ground that the appellant No. 1 therein was an old lady who cannot take upon herself the task of collecting rents from the tenants regularly, of maintaining accounts of the collections and to ensure proper maintenance of the structures etc.

Indisputably, share of the plaintiff is 4.38%. The Petrol Pump is leased out to Hindustan Petroleum Corporation Limited i.e. respondent No. 27. I have read and re-read the affidavit filed in support of the appointment of receiver application. There is no whisper that item No. 7 of the suit property i.e. the Petrol Pump is being misused or mismanaged and there is likelihood of damage being caused to the Petrol Pump. The Madras High Court in T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, laid down 5 principles, which are described as Panch Sadachar, for exercising equity jurisdiction with regard to appointment of a receiver, which are as under:

The appointment of a Receiver in a pending suit is a matter vesting in the discretion of the Court;

The Court should not appoint a Receiver except upon proof of prima facie that plaintiff has a very excellent chance of succeeding in the suit;

Apart from conflicting claims to the property, the plaintiff must show some emergency or danger or loss demanding immediate action and therefore the element of danger is an important consideration;

Where the property is shown to be "in modio" that is to say in enjoyment of none;

The conduct of the party who made the application shall be free from blame.

The above said principles have been reiterated by this Court in Kallam Mangamma v. Kallam Brahmareddy 1989 (1) ALT 331.

In Chelikam Rajamma Vs. Padileti Venkataswami Reddy and Others, , this Court held that the party seeking appointment of receiver must make out that he or she was not only kept out of possession unauthorisedly, but also the party in possession is indulging in acts of waste leading to the inference of incompetence.

As I stated earlier, the affidavit filed in support of the petition does not disclose the acts of waste or damage being caused by the party in possession of the Petrol Pump. The trial Court on mere conjectures and surmises proceeded to observe that there are some wastage and damage to the petition schedule property. The observation made by the trial Court in paragraph-11 of the impugned order is solely unsustainable and not based on any material. In the given facts and circumstances, the offer made by defendant No. 3 to deposit Rs. 2,86,721/- is just and reasonable. The trial Court ought have accepted the offer instead of appointing the receiver to take charge of a running business.

For the above mentioned reasons, the impugned order dated 12-08-2009 passed in I.A. No. 141 of 2009 in I.A. No. 69 of 2009 in O.S. No. 2142 of 2005 on the file of the IX Additional Senior Civil Judge (FTC), City Civil Court, Hyderabad is set aside subject to defendant No. 3 depositing Rs. 2,86,721/- within four (4) weeks from the date of receipt of a copy of this order.

Accordingly, the Civil Miscellaneous Appeal is allowed.