Telangana High Court
Mr. R.Chandra Shekhar vs Mr. S. Venkatehswar Rao on 20 December, 2024
THE HONOURABLE SRI JUSTICE SUJOY PAUL
CIVIL REVISION PETITION No.4041 of 2024
ORDER:
This Civil Revision Petition filed under Article 227 of the Constitution takes exception to the order dated 28.11.2024 in I.A.No.2602 of 2024 in O.S.No.319 of 2024 on the file of II Additional Chief Judge, City Civil Court, Hyderabad, whereby the application filed under Section 151 of CPC was allowed.
2. The singular contention raised by Sri Aadesh Varma, learned counsel for the petitioner is that the relief claimed in the impugned interlocutory application shows that the singular direction prayed for was to deposit half of the rent amount in respect of petition schedule 'A to H' properties therein in the bank account of respondent herein or to the credit of the suit until final adjudication of the rights of the parties. The trial Court passed order beyond the relief claimed by appointing Receiver and therefore, the said order is bad in law. In this regard, reliance is placed on the judgment of Supreme Court in the case of Ganapati Madhav Sawant v. Dattur Madhav Sawant 1.
1 (2008) 3 SCC 183 2
3. Sounding at contra note, Ms. Manjari S. Ganu, learned counsel for the respondent placed reliance on the judgment of Bombay High Court in the case of Vishnu Damodar Solankar v. S. Purandara Lakshmi Janardana Joisa 2 and judgment of the High Court of Andhra Pradesh at Hyderabad, in the case of Ravi Lakshmaiah v. Nagamothu Lakshmi S. Ramadoss 3 and urged that in view of these judgments even if relief is not specifically claimed in the present case, the trial Court is justified in appointment of Receiver.
4. The learned counsel for the parties have confined their arguments to the extent indicated above.
5. Before dealing with rival contentions, it is apposite to look into the relevant part of the impugned order which reads thus:
"10. As seen from the pleadings of both the parties, petitioner is claiming that he invested the amount along with the respondent for the purchase of petition schedule 'A to H' properties and developed same. On the other hand, respondent disputed the same stating that petitioner has no financial capacity and only his name is incorporated in the sale deeds. In fact, respondent himself paid the entire sale consideration, however, he handed over the amounts to show that cheques are issued on the name of the plaintiff in some of the transactions. In the present case, both the parties not filed the original documents and only filed copies of the said sale deeds. Even as per the admission of the respondent, name of the petitioner is shown in the sale deeds and 2 2009 SCC OnLine Bom 1830 3 1970 SCC OnLine AP 44 3 development agreements as a co-purchaser. Though respondent contended that petitioner has no financial capacity and petitioner has not paid any amount and in fact, he has paid amount in cash to petitioner and see that cheques are issued on the name of the petitioner. Since the name of the petitioner is found in all the sale deeds under which schedule 'A to H' properties are purchased as co-purchaser and in view of Sections 3 to 4 of Benami Transactions (Prohibition) Act, 1988, respondent is not permitted to claim exclusive ownership over the suit schedule property. Therefore, this Court can safely conclude that both the petitioner and respondent are the joint owners of the petition schedule 'A to H' properties.
11. In the case on hand, further both the parties admitted that all the petition schedule 'A to H' properties are let out to various tenants and entire properties are in the occupation of the said tenants. As rightly contended by the counsel for the respondent, petitioner simply claimed that each property is fetching rent, but no proof like statement or the receipts issued to the tenants or any other material in support of the quantum of rent paid by each tenant in respect of petition schedule 'A to H' properties is filed. Therefore, in the absence of such material, this Court is unable to conclude what is total amount getting as rent from petition schedule 'A to H' properties. When the learned counsel for the respondent objected with regard to the quantum mentioned in the petition and claimed by the petitioner as rents and his half share, the learned counsel for petitioner would came up with another argument stating that if there is a dispute with regard to the quantum of rent, which has to be decided after full-fledged trial, as petitioner is entitled for half share in the petition schedule properties, an Advocate Commissioner or any Receiver can be appointed for collection of the rents and same can be deposited to the credit of the present suit and both the parties can share the same after adjusting the maintenance and other ancillary charges and further he has relied upon the judgments reported in Vishnu Damodar Salonkar Vs. S.Purandara Lakshmi Janardana Joisa, 2009 SCC Online Bom 1830, Ravi Lakshmaiah Vs. Nagamothu Lakshmi S.Ramadoss, 1970 SCC Online AP 44 and in Durlabhji Dhanjibhai Patel and Others Vs. Competent Authority and Deputy Collector, Surat and others, 1996 SCC Online Guj
48. This Court also perused the said judgments, wherein, the Hon'ble Courts held that "There is no bar to appoint any Receiver or Advocate Commissioner to maintain the 4 properties with an intention to prevent the same from misuse."
12. In the present case, respondent having knowledge that petitioner alleged that he alone is collecting rents and utilizing the same and stopped payment of rents from May 2024 onwards, respondent did not choose to deny the same and he has not pleaded anything stating that he is not collecting the rents. As it is established that petitioner and respondent are joint owners of the petition schedule 'A to H' properties and both of them are entitled to share benefits arising out of the petition schedule 'A to H' properties. As it is established that respondent alone is collecting rents and as there is dispute with regard to the quantum of the rents fetching out of the petition schedule 'A to H' properties, this Court is of the opinion that a Receiver can be appointed to collect the rents from tenants. Further, the pleadings shows that both of them have no cordial relationship, therefore, it may not be proper to permit both the parties to manage themselves and it may give further scope to further litigation. Viewed from any angle, this Court is of the opinion that it is better to appoint an Receiver to collect the rents and to maintain the properties. Further more, since all the properties are in possession of tenants, if Receiver is appointed no prejudice would be caused to anyone.
Point is answered accordingly.
In the result, the petition is allowed and Sri B.Rajeshwar Rao, Advocate at Sl.No. 192 is appointed as Receiver and Receiver is directed to collect rents from the tenants over the petition schedule 'A to H' properties and to deposit the said rents to the credit of the suit account on or before 15th of every month from December, 2024. His fees is fixed at Rs. 15,000/- per month, which has to be deducted from the rents collected from the tenants by him over the petition schedule 'A to H' properties. The Receiver is directed to file statement of account along with receipts showing expenditure incurred for payments of taxes and ancillary charges etc., if any, for every month into the Court, until further orders."
(Emphasis Supplied)
6. A plain reading of the order shows that the Court has given reasons why Receiver needs to be appointed. The main question 5 raised is whether in absence of any prayer the appointment of Receiver is permissible. Learned counsel for the petitioner has relied upon the judgment of Supreme Court in Ganapati Madhav Sawant (supra), which deals with a different aspect and relates to grant of mesne profits and the same is not relating to the appointment of Receiver.
7. Learned counsel for the respondent placed reliance on the judgment of Division Bench of Bombay High Court in the case of Vishnu Damodar Salonkar (supra), in which the judgment of Madras High Court in the case of Sri Naryana Dossju Varu, the Mahant of Sri Hathiramjee Mutt, Tirupati v. The Madras Hindu Religious Endowments Board, by its president at Nungambakkam 4 was considered and opined as under:
"17. The next question which arises for consideration is as to whether the learned Single Judge is justified in appointing the Court Receiver, especially when plaintiff had not amended the notice of motion by asking for such relief, as the original relief asked for in the notice of motion is that the defendant may be restrained from disturbing the possession of the plaintiff. In this behalf, Mr. Soni, learned Counsel for the appellant, has placed a strong reliance in the case of (Sri Narayana Dossju Varu, the Mahant of Sri Hathiramjee Mutt, Tirupati v. The Madras Hindu Religious Endowments Board, by its President at Nungambakkam)1, A.I.R. (38) 1951 Madras 706, wherein a view has been taken by the Madras High Court that if no specific prayer for appointment of Receiver is made, the Court cannot appoint Receiver.4
AIR (38) 1951 Madras 706 6
18. At this stage, reference is required to be made to the decision of the learned Single Judge of this Court (R.M. Lodha, J. as His Lordship then was), in the case of (Mulji Umershi Shah and etc. v. Paradisia Builders Pvt. Ltd.)2, 1997 (4) Bom.C.R. 97 : AIR 1998 Bom. 87. In the said case, it is held that in view of the provisions of Order 40 Rule 1, in a given case the Court on its own can appoint Court Receiver if the facts and circumstances of the case so demand. The relevant observations in this regard, reads as under:
"19. In my view, in suitable cases, the Court is not powerless to pass appropriate order for appointment of receiver without any application by any of the parties while rejecting the application for temporary injunction. Such power of course has to be exercised sparingly and in exceptional cases, where dismissal of an application for grant of temporary injunction may lead the parties to take law in their own hands and use their own devices either for protection of unlawful possession of recent origin or for gaining possession of such like circumstances. There is no impediment put by the Code of Civil Procedure, in passing such order to prevent the ends of justice being defeated. Such order may be imminently required to be passed also so that possession may be made over to that party who is prima facie entitled to possession but is deprived by unlawful conduct or illegal act of the other party. An appointment of Receiver can be made on the application of either parties to the litigation as well as suo motu and therefore, absence of application shall not preclude the Court from passing such order it it is just and convenient. The cases may be varied and many. A party may not have any right to the property and still comes in possession of the property unlawfully and illegally which may be of recent origin and on that basis, may seek to protect his possession by filing suit for injunction and by making an application for temporary injunction. The Court may find that such person has no title, right or interest in the property and is not in lawful possession and therefore, is not entitled to grant of any temporary injunction. To avoid grave situation where the parties may take law in their own hands even while temporary 7 injunction has been refused, in the absence of any application, the Court may make an order of appointment of Receiver. Such exceptional order is permissible under law to prevent larger mischief if it is just and convenient in the facts and circumstances of the case. There is nothing wrong if by taking such recourse the plaintiff who has unlawfully come in possession recently is dispossessed during pendency of suit. In suitable and appropriate case, if the trial Court appoints the receiver while rejecting the application for temporary injunction, it cannot be said that such power is without jurisdiction. I find myself in respectful disagreement with the abstract proposition of Madras High Court in Sri Narayan Dossgu Vari (A.I.R. 1951 Mad 706) (supra) that in a suit for injunction it is not open to the Court to appoint a receiver. The view of Allahabad, Travancore, Cochin and Andhra Pradesh High Courts in the cases referred here-in-above, appear to be more sound and to which 1 fully agree."
(Emphasis Supplied)
8. A similar view is taken by the High Court of Andhra Pradesh at Hyderabad in the case of Ravi Lakshmaiah (supra), the relevant portion reads thus:
"4. Further under O. 40, R. 1 C.P.C. the court has the power to appoint a receiver where it appears to the Court to be just and convenient. The said order does not require that there should be an application for the appointment of receiver. Even without such an application, if the facts and circumstances are brought to the notice of the court justifying the appointment of a receiver it may do so suo motu even without an application by any of the parties for that purpose. In this case, the court, while hearing the application for an injunction came to the conclusion that it was just and convenient to appoint a receiver. We do not find anything either in Or. 39 or Order 40 C.P.C. which would preclude the Court from passing such an order. On the other hand, on a reading together of O. 39 and Order 40 C.P.C. we are of the view that the court is entitled to pass an order appointing a receiver even in an application for an injunction 8 under O. 39 C.P.C. The decision of the Madras High Court in Narayana Dossji v. Madras H.R.E. Board [A.I.R. 1951 Madras P. 706.] (Supra) was distinguished by the same High Court in D.K. Raja v. P.S. Kumaraswami Raja [A.I.R. 1955 Madras P. 360.]."
(Emphasis Supplied)
9. In view of these judgments, in the considered opinion of this Court, the view taken by the trial Court is a plausible view and it cannot be said to be a view which is wholly impermissible. The scope of interference under Article 227 of the Constitution is limited. If the impugned order is passed by a Court having no jurisdiction, order suffers from any patent illegality or palpable procedural impropriety, interference can be made. Another view is possible, is not a ground for interference. This Court cannot act as bull in the china shop to interfere on mere asking (see Shalini Shyam Shetty vs. Rajendra Shankar Patil 5). In the instant case, there is no ingredient on which interference can be made.
10. In the result, the Civil Revision Petition is dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
_______________________ JUSTICE SUJOY PAUL Date: 20.12.2024 GVR 5 (2010) 8 SCC 329