Patna High Court
Tetri Kuer And Ors. vs Raj Mano Kuer And Ors. on 1 December, 1997
Equivalent citations: 1998(2)BLJR895
JUDGMENT Narayan Roy, J.
1. Heard Counsel for the parties.
2. By the order impugned dated 7.12.1995, passed by the learned Subordinate Judge I, Garhwa, in Partition Suit No. 9 of 1994, the prayer made on behalf of the plaintiffs respondent Nos. 1 and 2 under Order XL Rule 1 of the Code of Civil Procedure (hereinafter referred to as the Code) has been allowed and a direction has been issued for appointment of the receiver.
3. Learned Counsel appearing on behalf of the defendants-appellant submitted that there was no material whatsoever before the learned Subordinate Judge to pass an order upon the petition under Order XL Rule 1 of the Code and the learned Court below merely on the basis of a report of the Pleader Commissioner, which was submitted much before the filing of the present petition by the plaintiffs, has passed an order for appointment of the receiver.
4. Learned Counsel for the appellants further submitted that there was no material before the learned Court below showing that there was eminent danger to the properties of the co-sharers either by alienating the same or by cutting the trees etc. Learned Counsel, therefore, submitted that the learned Court below only after seeing the evidence adduced by the parties could have passed the order impugned for appointment of receiver.
5. Mr. Debi Prasad, learned Counsel appearing on behalf of respondent Nos. 1 and 2, however, submitted that the respondent Nos. 1 and 2 had already filed the petition on Oath and there it was stated that the defendants were cutting the trees and there was chance of alienation of the properties in dispute and since the same was not rebutted by the defendants-appellants by disputing all the facts alleged in the petition of the plaintiffs-respondents, the facts stated in the petition under Order XL Rule 1 of the Code was sufficient-before the learned Court below to pass the impugned order and the impugned order, therefore, cannot be said to be without jurisdiction.
6. It appears that after filing of the partition suit in question, a similar petition under Order XL Rule 1 of the Code was filed by the plaintiffs for appointment of the receiver, and the same was rejected by the learned Court below and the order rejecting the prayer of the plaintiffs was challenged in this Court in Misc. Appeal No. 303 of 1994 (R) and the said appeal was also dismissed by order dated 18.5.1995, as contained in Annexure-1. It further appears that again a petition was filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code for grant of injunction and the learned Court below, however, considering the facts and circumstances of the case issued an order for maintenance of status quo.
7. I have perused the order impugned. The only basis which has weighed before the learned Court below was the report of the Pleader Commissioner dated 15.5.1995 to the effect that he had found certain Cut mark of trees on the suit lands. The petition under Order XL Rule 1 of the Code was filed on 4.11.95, much after the submission of the report by the Pleader Commissioner. It would also be relevant to mention here that pursuant to the report of the Pleader Commissioner dated 15.5.1995, the order of status quo was passed by the learned Court below on 31.7.1995. After filing of the petition for appointment of receiver, it does not appear from the order impugned that evidence was led by the plaintiffs in support of their contentions nor there was any material before the learned Court below to come to a conclusion that there was eminent danger to the properties in question and there was chance of alienation and cuting of the trees.
8. I have already stated above that the plaintiffs, after institution of the suit, were repeatedly filing petitions, either for injunction or for appointment of the receiver. It is settled that the prayer for appointment of receiver in a suit filed for partition, should not be allowed save and except with the consent of the co-sharers and only when the Court is satisfied that there was wastage or mismanagement of the properties by fraudulent acts. In this connection reference can be made to the case of Bhubaneshwar Prasad Narain Sinha v. Rajeshwar Prasad Narain Sinha and Ors. reported in AIR 1948 Patna 195. Similarly, in the case of Tara Singh v. Surajdeo Singh, , a Division Bench of this Court has held that merely on the basis of allegation made by the plaintiff for appointment of receiver, the petition under Order XL Rule 1 should not be allowed in absence of any evidence adduced by the plaintiff in support of its contention.
9. None of the tests as noticed above was satisfied by the plaintiffs respondents for appointment of receiver and the learned Court below, in my opinion, therefore, has wholly erred in passing the order impugned.
10. For the reasons aforementioned, I allow this appeal and set aside the order impugned, but without cost. However, since it is a suit of 1994, the learned Court below shall take steps for early disposal of the same.