A receiver should not be appointed unless the property is in medio or there is proof that the party in possession is causing or is likely to cause damage to the subject-matter of the suit.

ORDER:- This application arises from the order of the District Judge, Panaji, dated October 10, 1975, dismissing the appeal filed by the applicant/original defendant against the order of the trial Court appointing a Receiver to take charge of the suit land.

2. The suit was filed by the respondent against the applicant for Obtaining recovery of possession of a liquor shop with furniture, fittings, glasses and so on, and also to restrain the applicant by a "mandatory injunction from interfering with such possession".

3. The case of the plaintiff is that he is the owner in possession of a house situated at Maimolem, Vasco; he used to run a liquor shop in the front portion of the house; the rear portion of the house was occupied free of charge by the defendant who is his brother-in-law; the liquor business is carried on by him for the last three years under a licence obtained by him from the Excise Commissioner, Panaji; there is a communicating door between the liquor shop and the portion of the premises occupied by the defendant; taking advantage of this position the defendant started wrongfully interfering with the business of the plaintiff and started giving others the impressions that he, the defendant, was the owner of the business; since April 15, 1975, the defendant actually deprived the plaintiff from the possession of the liquor shop; the plaintiff reported this fact to the Excise Commissioner, Panaji, who advised him to seek remedy in Court; he therefore filed the present suit on 12-5-1975.

4. On 21-6-1975 an application was made to the trial Court by the plaintiff praying for the closing down of the liquor shop or in the alternative for the appointment of a receiver in respect of the liquor shop. It was stated, inter alia, in the said application that loss and harm was being caused to the property. The application was supported by an affidavit of the plaintiff. The defendant opposed the application for appointment of receiver, filed an affidavit in reply to the application of the plaintiff and supported it by five documents namely an account book, three receipts and a letter regarding electric connections. After the arguments before the trial Court were over, the plaintiff filed another affidavit. The trial Court then passed the order appointing a Receiver. The defendant appealed to the District Court. The learned District Judge came to the conclusion that the documents filed by the plaintiff suggested that the plaintiff was the owner of the shop and had the possession of it prior to April 15, 1975; that the documents filed by the defendant suggested that the defendant was the owner of the shop and that he was in possession of it after 15-4-1975. The learned District Judge therefore concluded that the shop was in medio, and dismissed the appeal.

5. The order of the two Courts below is assailed on various grounds. It is argued on behalf of the defendant, the present applicant, that the defendant not only claimed the ownership of the shop, but has proved that he was in possession of the shop at least from 15-4-1975. Therefore, Shri Kolwalkar, learned advocate for the defendant states that the learned District Judge completely misdirected himself when he held that the liquor shop was in medio. I agree with Shri Kolwalkar that from the facts on record and even from the findings of the learned District Judge, it is not possible to conclude that the property was in medio. His decision is based on the fact that the property in dispute was in medio and is therefore based on a non-existing fact.

6. The next contention of Shri Kolwalkar is that the second affidavit and the documents on which the plaintiff relied in support of his case were produced after the arguments were heard and the hearing was over and further, that these documents were not placed on record; but were merely shown to the two Courts below and taken back by the plaintiff. The said documents were not at all shown to the defendant and the defendant was not gi