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2010 Supreme(UK) 473
2011 (1) UAD 663
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Tarun Agarwala
Appeal from Order No. 71 of 2009
MRS. RAZIA PARVEZ & ORS. – Appellants
Versus
SIKANDER PARVEZ & ANR. – Respondents
Decided on : 27.07.2010
For the Appellants :Mr. Kanwaljit Singh, Advocate
For the Respondents:Mr. T.s. Bindra, Advocate
Headnote:(A) Civil Procedure Code, 1908, Or. 40, R. 1 — Discretion of the court — Principles guiding — Appointment of receiver — (a) It is dependent on the view taken by the Court with regard to the purpose of protecting the right of all parties and subject matter — (b) Unless the plaintiff is able to make out a prima facie case that he has an excellent chance of success in the suit Court should not appoint a receiver — (c) The plaintiff shall not only show a case of adverse and conflicting claims to property but also he must show some emergency or danger or loss demanding immediate action and his own rights are reasonably clear and free from doubt — (d) Order having the effect of depriving a defendant of a defacto be in medio i.e. in the enjoyment of none — (e) Conduct of the party who must come with clear hands is also a relevant consideration. (Para 9)
(B) Civil Procedure Code, 1908, Or. 40, R. 1 — Mismanagement of the property in suit and misappropriation of the funds by the defendant — Allgations of — Held in absence of any explanation for such a delay in instituting the suit — A bald allegation was made to the effect that the defendants may misappropriate the funds — Such bald allegation is not sufficient to invoke the proviso of Or. 40 of the Civil Code — Nor such allegation just and convenient for the court to appoint a receiver. (Paras 10 to 12)
¼v½ nhokuh izfd;k lafgrk] 1908] vkns'k 40 fu;e I & U;k;ky; dk Lofoosd vkSj mlds ekxZn'kZu ds fl)kUr & fjlhoj dh fu;qfDr (a) ;g U;k;ky; ds bl n`f"Vdks.k ij fuHkZj djrh gS fd lHkh i{kdkjksa ds vf/kdkjksa dh vkSj fo"k; oLrq dh lqj{kk dh tk, & (b) tc rd oknh ,d okLrfod dsl nk;j djus yk;d uk gks rkfd mls okn esa lQyrk feyus ds csgrj volj izkIr gSa] U;k;ky; dks dksbZ fjlhoj fu;qDr ugha djuk pkfg, & (c) oknh }kjk dsoy uktk;t dCtk vkSj lEifRr ij fojks/kkHkk"kh nkos dk dsl gh nk;j ugha djuk pkfg, cfYd mls dqN rRdkyhu vFkok Hk; ;k gkfu ds okLrs QkSju dk;Zokgh djus dh ekax djuh pkfg, vkSj mlds futh vf/kdkj Hkyh izdkj ls vlafnXèk vkSj Li"V gksus pkfg, & (d) izfroknh dks oafpr djus ls lEcfU/kr vkns'k rF;ksa ij vkèkkfjr ,slk gksuk pkfg, tks fdlh dh i{k/kkfjrk u djrk gks & (e) i{kdkj ftUgsa 'kq) vkSj Li"V rF;ksa ds lkFk vkuk pkfg, mudk O;ogkj Hkh ,d lqlaxr fopkj.kh; igyw gksrk gSA ¼izLrj 9½
¼c½ nhokuh izfd;k lafgrk] 1908] vkns'k 40 fu;e I & izfroknh }kjk fookfnr lEifRr dh vO;oLFkk vkSj vk; dk nq#i;ksx fd;s tkus dk vkjksi & fu.kZ; esa dgk x;k fd bl izdkj ds okn ds nk;js esa gq, foyEc ds dkj.k dk Li"Vhdj.k fn;s fcuk vkSj fcuk fooj.k fn;s ,slk vkjksi yxk;k tkuk fd izfroknh /ku dk nq#i;ksx dj ldrk gS ,slk eu?kM+Ur vkjksi vkns'k 40 CPC dks ykxw djus ds okLrs i;kZIr ugha gS uk gh ,slk vkjksi U;k;ksfpr vkSj U;k;ky; ds okLrs fjlhoj fu;qfDr ds fy, lqfo/kktud gSA
¼izLrj 10 ls 12½
The plaintiffs/appellants filed a suit for partition and for accountancy alleging that the plaintiffs had a half share in the suit property. It is alleged that the plaintiff’s husband and the defendants were co-owners and that in the suit property, a hotel under the name of Hill Way and a school under the name of North Point was running. Further there were various tenants in various portions of the property which were fetching rent. It is alleged that the defendants were not giving the share of the rent and income to the plaintiffs and consequently, the suit was instituted.
2. Alongwith the suit the plaintiffs also filed an application under Order 39 Rule 1 and 2 C.P.C. for grant of a temporary injunction. The plaintiffs also filed an application under Order 40 Rule 1 of the Code of Civil Procedure for an appointment of a receiver.
3. Both the applications were resisted by the defendants admitting that the property was ancestral in nature and that the plaintiff’s husband had made an oral gift, gifting the land and building to the defendants. This oral gift was subsequently reduced in writing on 1st March, 1991. The defendants further contended that the hotel was being run by the defendants, who had constructed the same from his own funds and that the school was being run by a registered society. Consequently, the plaintiffs are not entitled for any relief.
4. That trial court, after considering the evidence on record, found that a prima facie case was made out by the plaintiffs. The trial court found that the hotel was running since 1982 and the school was running since 1986, and at that point of time, the property was joint and at the stage no oral gift, if any had been executed in favour of the defendants. The trial court, consequently allowed the injunction application and restrained the defendants from alienating the property during the pendency of the suit. The trial court, however, found that the plaintiffs were not entitled for an appointment of a receiver and consequently, rejected the said application. The plaintiffs, being aggrieved by the rejection of the application for an appointment of a receiver, has filed the present appeal under Order 43 Rule 1(s) of the Code of Civil Procedure.
5. Heard Mr. Kanwaljit Singh, the learned counsel for the appellants and Mr. T.S. Bindra the learned counsel for the respondents.
6. Learned counsel for the plaintiffs/appellants submitted that the defendants had taken advantage of the absence of the plaintiffs and her husband, who were residing in Sweden and were, therefore, unable to look after the property and that the defendants have illegally manufactured an oral gift, which cannot be taken into consideration and in any case could not be relied upon since the said oral gift was not registered, and which was compulsorily required to be registered under the Registration Act. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Radhakrishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and others reported in A.I.R. 1960 S.C. 1358 and in the case of Kumar Gonsusab and others and Mohammed Miyan Urf Baban and others reported in 2008 (73) A.L.R. 496. The learned counsel submitted that the court below found that a prima facie case was made out and found that the property was an ancestral property in which a hotel and a school was being run and that the property was let out to the various tenants. The learned counsel submitted that the trial court in order to protect the property should have appointed a receiver. The learned counsel submitted that it was just and convenient that the trial court should have appointed a receiver and had committed an error in rejecting the application. Learned counsel submitted that the plaintiff is a widow and in dire need of funds. It was further contended that the property being ancestral, no part of income was being given by the defendants and consequently, it was just and
