The main legal point established in the judgment is that a receiver cannot be appointed under Order 40 Rule (1) of the Code of Civil Procedure if there is no prima facie case in favor of the applicant and if there is no imminent danger to the property.

JUDGMENT :

Chander Bhusan Barowalia, J.

The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner, against the order dated 03.05.2019, passed by learned Civil Judge (Jr. Div.), Palampur, District Kangra, H.P., in CMA No. 163/19, in Civil Suit No. 336/2009, whereby application filed by the petitioner-applicant, under Order 40 of the Code of Civil Procedure, for appointment of receiver, was dismissed.

2. Briefly stating the facts, giving rise to the present petition are that respondent No. 1, who is father of the petitioner, maintained a suit against the defendants, including the present petitioner for grant of decree of declaration to the effect that sale deed No. 1390/2007, dated 31.10.2007 and sale deed vide reference No. 353/2008, dated 25.02.2008 are illegal, null and void. During the pendency of the said suit, the petitioner-applicant filed application under Order 40 of CPC for appointment of the applicant as receiver for the purpose of management, protection, preservation and improvement of the suit land, wherein it has been averred that the suit is pending for the last more than 9 years and there is dispute regarding a Will and since the applicant is beneficiary of the alleged Will pertaining to the suit land, it is necessary for the management, protection, preservation, betterment and improvement of the suit land to appoint him as a receiver.

3. The application filed by the plaintiff was contested by the respondent by filing reply, wherein preliminary objections qua non-maintainability and no provision for appointment of applicant as receiver have been taken. On merits, it has been denied that there is any Will in favour of the applicant and for management, protection, betterment and improvement of the suit land appointment of receiver is necessary. Lastly, a prayer for dismissal of the application with costs has been made.

4. Learned trial Court vide order dated 03.05.2019 dismissed the application so filed by the applicant. Hence, the present petition.

5. Mr. Mukul Sood, learned counsel for the petitioner has argued that since there is a Will in favour of the petitioner-applicant, learned trial Court should have allowed the application and appointed receiver to protect the property and the order passed by learned trial Court is not sustainable in the eyes of law, as the learned trial Court has not considered the basic law on the subject.

6. On the other hand, Mr. Sunil Mohan Goel, learned counsel for respondents No. 4 to 11 has argued that the learned trial Court has passed the order in accordance with law, since the application was filed after 9 years of the pendency of the suit, which was maintained by the father of the petitioner against him. He has further argued that the purpose of the application was just to delay the proceedings and there is no question of Will involved in the suit, even otherwise also the application was not maintainable.

7. In rebuttal, Mr. Mukul Sood, learned counsel has argued that the question of Will is there, however, the learned trial Court without appreciating the facts to its true perspective, dismissed the application of the petitioner-applicant. Accordingly, the present petition may be allowed and order dated 03.05.2019 be set aside.

8. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail.

9. In the instant case, the applicant could not show the irreparable loss that would be caused to him, if receiver is not appointed. The learned trial Court has not appointed the receiver as there was no eminent danger of the property. The applicant has failed to show any prima facie case in his favour and from the record it is clear that the suit was maintained by the father of the applicant, in which he was one of the defendant. The law on the subject is very clear that a receiver cannot be appointed if there is possibility that he/she will dispossess the defendants from the suit land and results into irr