1997 Supreme(Guj) 222

Gujarat High Court
Judgename :R.R.Jain
NARAYANDAS NATHUMAL HEMRAJANI - Appellant
Versus
TARABEN kalimuddin MULLA MITAWALA - Respondent
C.R.A. 300 of 1997
Decided On : 05/06/1997

Headnote:(a) Civil Procedure Code, 1908 - Sec. 94(d) read with Sec. 151 & Order 41 Rule 1 - Appointment of receiver - Order could be made to protect, preserve, improve & manage the property in dispute during pendency of litigation to meet the ends of justice - In the instant case subject matter of suit is not regarding the right, title or interest and/or possession qua the land in question - It is the validity of notice issued by orignal defendant Dahod Nagarpalika, requiring the respondents plaintiffs to remove wire fancing alleging unauthorised construction & encroachment is challenged - Consequently impugned order of appointment of receiver not validly made - It is illegal & without jurisdiction.

       One of the avowed object of appointment of Receiver is to protect, preserve, improve and manage the property in dispute during pendency of litigation to meet the ends of justice. In other words, immovable property for which Receiver is to be appointed shall be the subject-matter of suit between the parties. During pendency of litigation if the property is not properly managed, protected or preserved may get destroyed adversely affecting the rights of the parties defeating the ends of justice. In the instant case, the subject-matter of suit is validity of the notice issued by the original defendant Dahod Nagarpalika requiring the respondents plaintiffs to remove wirefencing alleging unauthorised construction and encroachment. In my view, the right, title or interests and/or possession qua the land in question is no more the subject-matter before the court. Consequently, there was no reason for the court to pass any such order though the question of protection/preservation or management was not for consideration and there was no case for defeating ends of justice merely because the plaintiffs come with some allegations. The suit was not filed for protection or preservation of the land in question. Therefore, the purpose of appointment of Receiver could not be for achieving the object as provided under Sec. 94(d) of the C.P. Code. Thus, on the face of it, the order is illegal, patently erroneous and without jurisdiction.

       [Para 6]

       (b) Civil Procedure Code, 1908 - Sec. 115 - Revision - Filed by third party - Maintainability - No express provision requiring leave of the Court - Even than petitioner has already moved an application for amendment for grant of leave of the Court - Also that on facts it could not be said that petitioner is total stranger to the litigation - He may not be party to original litigation but on being aggrieved, it could not be held that he is not competent to maintain revision against the impugned order.

       It is true that the petitioners are third parties to the suit but, on facts, cannot be such as total strangers because the record shows that aggrieved by the first order of appointment of Receiver passed below Annexure-F dated 13.2.1997, the petitioners approached the Trial Court vide Exh. 51 at Annexure-I and filed objections and prayed for stay of operation of the order. Accordingly, exercising inherent powers the Trial Court stayed operation of the order dated 17.3.1997. Thus, the petitioners though not parties to the suit were very much before the court and at one point of time considering the objections the court had issued appropriate orders. In my view, in these circumstances and facts of this case they have right to approach this Court without leave when they are aggrieved by any order. By saying so I do not lay down a broad proposition of law that in all cases a third party can approach this Court under Sec. 115 and challenge legality of any order to which he is not a party. In the facts and circumstances of this case, the petitioners though not parties to the original litigation yet are not totally strangers and had already made their appearance before the court, consequently, in my view, for all purposes are parties to the litigation. What is required under law for proper adjudication of dispute is presence of proper and necessary parties by whatever mode. In a given case, plaintiffs may not join and implead all necessary and proper parties, yet having come to know one can appear before the court and pray for appropriate relief and thereby presence can confer the status as being party.

       [Para 9]

       Assuming that leave of the court as per law is required, then by subsequent amendment the petitioner has already prayed for leave. As per well recognised principle, any amendment made during pendency would relate back to institution unless expressed otherwise. Therefore, shall be deemed to have prayed for leave of course the first order expressly does not refer to any leave granted but the fact that petition on behalf of third party is entertained the court shall be deemed to have granted impliedly as has not been rejected. Therefore, in my view, the contention that the petition is without prior leave of the court is not maintainable.

       In Court view, looking to Sec. 115 no leave is required if the jurisdiction is invoked by one present before court but not a party to proceedings. I do not find any express bar to this effect in the said provision. On the contrary, under the provisions High Court can suo motu call for record of a subordinate court and examine the legality of order. Thus, the rights conferred under the C.P. Code are unfettered rights and the object is to do substantial justice. The rights can be exercised either suo motu or on being brought to the notice by any party or agency to prevent miscarriage of justice. Any party or agency bringing such illegal orders to the notice of court is merely an instrumentality calling upon the court to exercise suo motu powers for preventing miscarriage of justice. Therefore, in my view, under Sec. 115 of the C.P. Code prior leave of court is not required when the revision is filed by a person who is present before trial but and yet may not be party.

       [Para 10]