Back
2016 Supreme(HP) 763
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Mansoor Ahmad Mir & Sureshwar Thakur, JJ.
Dr. Yashwant Singh Parmar University of Horticulture and Forestry - Appellant
Vs.
Sh. Narender Dhand and others - Respondents
LPA No. 19 of 2011
Decided On : 31-03-2016
For the Appellant :Ms. Ranjana Parmar, Senior Advocate, with Mr. Karan Singh Parmar, Advocate.
For the Respondents:Mr. J.S. Bhogal, Senior Advocate, with Mr. Pramod Negi, Advocate, for respondents No. 1 to 4.
Mr. Shrawan Dogra, Advocate General, with Mr. Anup Rattan & Mr. Romesh Verma, Additional Advocate Generals, and Mr. J.K. Verma, Deputy Advocate General, for respondent No.5.
The main legal point established in the judgment is the stringent criteria for appointing a Receiver, emphasizing the need for a strong prima facie case, danger or loss demanding immediate action, and balance of convenience in favor of the appointment.
Headnote:
Receiver - Civil Procedure Code - Section 94, Order 40 - 94, Order 40
Fact of the Case:
The appellant/plaintiff/applicant sought the appointment of a Receiver for a suit property. The defendants/respondents/non-applicants were in possession of the property and were running a school. The appellant alleged that the possession was illegal and sought the appointment of a Receiver for preservation and control of the property.
Finding of the Court:
The court found that the appellant failed to establish a strong prima facie case, irreparable loss, and balance of convenience in favor of the appointment of a Receiver. The court held that the possession of the defendants was permissive and not illegal, and that the appellant did not demonstrate any danger or loss demanding immediate action. The court also emphasized that the appointment of a Receiver is one of the harshest remedies and should only be granted in extreme cases.
Issues: The issues revolved around the legality of the possession of the defendants, the necessity for the appointment of a Receiver, and the fulfillment of the criteria for appointing a Receiver as per the law.
Ratio Decidendi: The court applied the 'panch sadachar' principles established by various High Courts, emphasizing the need for a strong prima facie case, danger or loss demanding immediate action, and balance of convenience in favor of the appointment of a Receiver. The court also highlighted the harshest nature of the remedy and the need for caution and restraint in its application.
Final Decision: The court upheld the impugned order and dismissed the appeal, concluding that the appellant failed to satisfy the criteria for the appointment of a Receiver.
Mansoor Ahmad Mir, J.
This Letters Patent Appeal is directed against the order, dated 23rd July, 2010, passed by the learned Single Judge in Civil Suit No. 72 of 2008, titled as Dr. Yashwant Singh Parmar University of Horticulture and Forestry, Nauni versus Narender Dhand and other, whereby and whereunder miscellaneous application, being OMP No. 403 of 2008, for appointment of Receiver in terms of mandate of Order 40 Rule 1 of the Code of Civil Procedure (for short “CPC”) came to be dismissed (for short “the impugned order”).
2. Appellant/plaintiff/applicant has assailed the impugned order on the grounds taken in the memo of appeal which are almost the same grounds as taken in the plaint and OMP No. 403 of 2008.
3. The question is – whether the impugned order is legal or otherwise, is to be decided while taking note of the pleadings of the parties and the mandate of the provisions of Section 94 and Order 40 CPC.
4. Before we deal with the facts of the case, one has to understand what is the object of Order 40 CPC.
5. The aim and object of Order 40 CPC is to protect, preserve and manage the suit property during pendency of a suit. The said power is subject to the controlling provision of Section 94 CPC and is to be exercised for preventing the ends of justice from being defeated.
6. It would be profitable to reproduce Section 94 CPC herein:
“94. Supplemental proceedings. - In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,-
(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the Court or order the attachment of any property;
(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil prison and order that his property be attached and sold;
(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and convenient.”
7. The said provision of law mandates that the Court may pass orders to prevent the ends of justice from being defeated, if it is so prescribed.
8. What does the word 'prescribed' mean? Section 2 (16) CPC defines the word 'prescribed', in terms of which, 'prescribed' means prescribed by Rules.
9. In view of the above, Section 94 CPC can be pressed into service and orders can be passed if it is provided by the Rules.
10. In the case in hand, we are dealing with Section 94 (d) and (e) read with Order 40 CPC.
11. It is profitable to reproduce Order 40 CPC herein:
“ORDER XL
APPOINTMENT OF RECEIVERS
1. Appointment of receivers. - (1) Where it appears to the Court to be just and convenient, the Court may by order –
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver, and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.”
12. The mandate of Order 40 CPC is that the Court may appoint a Receiver of suit property, whether before or after the decree, if it appears to the Court to be just and convenient.
13. The crux of the matter is – whether it is
