Calcutta High Court
Northern Properties Pvt. Ltd. And Ors. vs Kedarnath Fatehpuria And Ors. on 25 January, 2007
Equivalent citations: 2007(4)CHN105
JUDGMENT Prabuddha Sankar Banerjee, J.
1. This revisional application as per Article 227 of Constitution of India is at the instance of defendants and is directed against Order No. 67 dated 9.12.2003 passed by learned Civil Judge (Senior Division), 4th Court, Alipore, in connection with Title Suit No. 28 of 1997.
2. The said suit was brought by the present opposite parties against the present petitioners.
3. The fact leading to the filing of the said suit may be summed up thus:
(i) That the present opposite parties filed a suit praying for declaration that the opposite parties became the absolute owners of the suit properties by way of adverse possession and also prayed for declaration that the lease deed dated 22.8.1973 is void and not binding upon the plaintiffs. The opposite parties also prayed for declaration that the ex parte eviction decree dated 11.9.1975 passed in connection with T.S. No. 144 of 1974 is void. Other consequential reliefs including perpetual injunction etc. were prayed for in that suit. The said suit was numbered as T.S. No. 28 of 1997 and is pending before the learned 4th Civil Judge (Senior Division), at Alipore.
(ii) The present petitioners appeared and filed written statement in that case.
(iii) It is the case of the plaintiffs of that case that the property as mentioned in Schedule-'A' of the plaint originally belonged to one Asit Kumar Ghosh and during his lifetime, the said property was leased out to petitioner No. 1 of this revisional application. The said deed of lease was for 99 years and was duly registered. In the year 1934, the executor of the estate Akshay Kumar Ghosh, since deceased, granted monthly tenancy to one Mr. E.A. Hartley in respect of the suit premises and after death of the said E.A. Hartley, his son namely E. G. Hartley became tenant on the basis of his request.
(iv) In the year 1950 E.G. Hartley left India permanently and settled at U.K. However, without knowledge of the original owner, he let out the leasehold property to the plaintiff/opposite party No. 1 and since then the O. P. No. 1 is in wrongful possession of the property as a trespasser.
(v) One ejectment suit was filed against E. G. Hartley which was numbered as T.S. No. 144 of 1974 and the said suit was decreed on 11.9.1975 ex parte. On the basis of the said ex parte decree, one execution case was filed which was numbered as T. Ex. Case No. 15 of 1976 before the learned Civil Judge (Junior Division), 4th Court, at Alipore which is still pending.
(vi) Long after passing of the said decree, the present opposite parties filed the suit before the 4th Assistant District Judge, Alipore in which the ex parte decree of ejectment passed in connection with T.S. No. 144 of 1974 is the subject-matter.
(vii) During pendency of the said suit, another suit being T.S. No. 213 of 2002 was filed by the present opposite parties before the 9th Judge, City Civil Court for declaration that he is one of the Director and Shareholder of the Northern Properties Private Limited and prayed for injunction and other consequential reliefs. The plaintiff Dilip Chand Kankaria moved one application under Order 40 Rule 1 C.P. Code for appointment of Receivers over the properties which was allowed by the Court on 30.10.2002. The plaintiff along with one Smt. Bratati Das, Advocate were appointed as joint Receivers over the properties of Northern Properties Private Limited including the suit property. However, the said order regarding appointment of Joint Receivers was passed ex parte.
(viii) The present petitioners appeared and filed one application under Order 7 Rule 11 read with Section 151 C.P. Code praying for rejection of the plaint as a preliminary ground. The said application was allowed by the Judge, City Civil Court and by order dated 20.6.2003, the learned Judge, City Civil Court directed to return the plaint to the filing lawyer so that the same can be filed before the appropriate forum.
(ix) It is the case of the present petitioners that after the order of return of plaint was passed, The existence of the order regarding appointment of Receivers ceased.
(x) Subsequently, the plaintiffs of T.S. No. 28 of 1997 filed application for addition of parties with respect to the Receivers who were appointed by the Judge, City Civil Court.
(xi) The said application was opposed by the defendants of that case by filing written objection.
(xii) By the order impugned, the learned Trial Judge allowed the application for addition of parties thereby making the Receivers as parties to the said suit.
4. Being aggrieved by the said order of the learned Trial Judge, the instant revision under Article 227 of the Constitution has been preferred by the defendants.
5. Mr. Ajoy Kumar Chatterjee, learned Senior Advocate appearing, for the present petitioners challenged the impugned order on the following grounds:
(a) That the Court below did not consider that after order of return of plaint by the learned Judge, City Civil Court was passed, the order of appointment of the Receivers came to an automatic end.
(b) That the learned Trial Judge did not consider that the application for addition of the Receivers as parties to the suit does not arise as the said suit was pending before the Receivers were appointed.
(c) That the Court below ignored the fact that though there was specific direction by the learned Judge, City Civil Court to file the plaint before the proper forum, the same was not filed till filing of the revisional application.
(d) That the Court below committed error in allowing the application for addition of parties as different reliefs were prayed for in the said pending suit.
6. The said pleas were strongly opposed by Mr. S.P. Mukherjee, learned Senior Counsel for the opposite parties. He challenged the said pleas as raised by Mr. Chatterjee on the ground that once Receivers were appointed, they will be deemed as Receivers with respect to the properties in question unless they are discharged by specific order by the Court who appointed them.
7. It was the contention of Mr. Mukherjee that as there was no such order by which they were discharged, they are deemed to be Receivers with respect to the property in question and the learned Trial Judge rightly allowed the application for addition of parties. It was the further contention of Mr. Mukherjee that the said Receivers are answerable to Court and for that reason they were made parties to the said suit in which the property in question was also included as subject-matter.
8. The following facts are not in dispute:
(1) That T.S. No. 28 of 1997 was filed long before institution of T.S. No. 213 of 2002 before 9th Judge, City Civil Court.
(2) That Joint Receivers namely Dilip Kumar Kankaria and Smt. Bratati Das were appointed as Receivers with respect to the properties which were the subject-matter of T.S. No. 213 of 2002.
(3) That on the basis of application of the defendants in T.S. No. 213 of 2002, the plaint was returned to the filing lawyer with direction for presentation of the plaint before the competent authority to get relief within 60 days thereof.
(4) That in spite of the said order of the learned Judge, City Civil Court, the plaint was not taken back nor it was filed before the appropriate forum.
9. Mr. Chatterjee, learned Senior Counsel for the petitioners challenged the order impugned mainly on the ground that the Court did not consider that the application for appointment, of Receivers was defective from the very beginning as it was not verified or supported by affidavit. It was the further contention of Mr. Chatterjee that the Court passed the impugned order on the basis of an application which was not as per statute and the said plea was taken in the written objection and the Court did not consider the same but passed the order impugned.
10. At the same time, Mr. Chatterjee contended that, there is difference in between the cases where final order has been passed in which Receiver was appointed and no specific order of discharge was passed with respect to their appointment and in the case of return of plaint in which also the Receiver was appointed.
11. It was the further contention of Mr. Chatterjee that the moment there is order for return of the plaint, automatic presumption would be there that the Receivers, if appointed would be discharged. In other words, it was the contention of Mr. Chatterjee that as there was no existence of any suit, continuation of the Receivership does not arise.
12. I have already stated that the said pleas were opposed by Mr. Mukherjee mainly on the ground that if there is any order of appointment of Receiver, the said Receiver in the eye of law will continue to function unless he is discharged by specific order. It was the further contention of Mr. Mukherjee that in the instant case, the learned Judge, City Civil Court did not pass any specific order by which the Receivers, so appointed by the Court were discharged and in that event the Court must presume that the said Receivers are to be treated as "Receivers" with respect to the properties in question. It was the further contention of Mr. Mukherjee that on the basis of interpretation of statute by different High Courts and the Apex Court, this Court must come to the conclusion that the Receivers were still functioning even after return of the plaint and the learned Trial Judge by allowing the application for addition of parties did not commit any mistake.
13. In this regard, I have already stated that the application for appointment of Receivers was made with respect to a pending case before the learned Trial Judge at Alipore which is numbered as T.S. No. 28 of 1997. The said application was filed by the plaintiffs mainly on the ground that the Receivers were appointed in another case with respect to the properties which was also the subject-matter of that case.
14. Mr. Chatterjee, learned Counsel for the present petitioners challenged the said order also on the ground that the Court had no jurisdiction to pass such order as the present opposite parties defied the order of the learned Judge, City Civil Court by not filing the plaint before the appropriate forum after taking back the plaint from the Court of learned Judge, City Civil Court. Mr. Chatterjee contended that under no circumstances the present, opposite parties acquired any right to implead the said Receivers as parties to the said suit namely T.S. No. 28 of 1997.
15. I have already mentioned that the present opposite parties who filed the suit before the learned Judge, City Civil Court which was numbered as T.S. No. 213 of 2002 did not comply with the order dated 20.6.2003 by taking back the plaint and by presenting the same before the appropriate forum within 60 days from the order.
16. It is therefore, clear that there was wilful defiance or disobedience of the Court's order by the present opposite parties.
17. The main question which is to be decided is whether the order of return of plaint in which Receivers were appointed will be in the same footing with final order in any suit in which the Receivers were appointed but not discharged by specific order.
18. In this regard, learned Lawyer for the O. P. relied upon the following cases:
(i) Muthu Vira Reddi Rami Reddi v. C. Subbaramiah and Ors. reported in Vol. III ILR Madras Series page 967.
(ii) Shankar Das v. Behari Lal and Ors. reported in AIR 1925 Lahore 445.
(iii) Howrah Trading Company Pvt. Ltd. and Ors. v. Pramila Jalan and Ors. reported in 1994 (2) Cal LJ 279.
(iv) Chaturbhuj Durgadas Factory v. Damodar Jamnadas Zawar and Ors. reported in AIR 1960 Bom. 424.
(v) Ram Charan Agarwala and Ors. v. Shridhar Mishra and Ors. reported in AIR 1982 All 610.
(vi) ILR Calcutta Series Vol. XXXIV page 336.
(vii) Bhimappa Timmappa Kividi v. Gireppa Laxmappa Kivadi reported in AIR 1969 Mysore page 173.
(viii) Indra Motor Private Limited v. Bina Pani Daw and Ors. reported in 2002 CWN page 563.
(ix) Heralal Patni v. Loonkaran Sethiya and Ors. .
19. Shri Chatterjee, learned Lawyer for the petitioners however, relied upon the cases in between Indra Motor Private Limited v. Bina Panl Daw and Ors., already referred by Mr. Mukherjee, Harshad Chimanlal Modi v. DLF Universal Ltd. and Anr. and the unreported case of our Division Bench in between Saraogi Industrial Corporation and Ors. v. Subhadra Trading Company and Ors. Indian Law Reports 34 Calcutta page 337.
20. I propose to deal with the cases as referred by learned Lawyer for the parties.
21. In the case in between Muthu Vira Reddi Rami Reddi v. C. Subbaramiah and Ors., the Hon'ble Judges refused to accept the plea that the Receiver has been discharged. I quote the following lines "We are unable to accept the contention. The Receiver had not been discharged by the Court which appointed him, time for preferring the appeal would expire before the High Court, which appointed the Receiver, could be moved to pass orders on the re-opening of the High Court in July, 1922, and in the circumstances we think that the Receiver's appeal could not be said to be incompetent, as contended by the appellant. We accordingly overrule this objection."
22. In the case between Shankar Das v. Behari Lal and Ors., the Hon'ble High Court, Lahore came to the conclusion. A Receiver is an officer of the Court, and as long as the order appointing the receiver remains unreversed, and as long as the suit remains lis pendens, his functions continue until he is discharged by order of the Court. Hence the mere passing of a preliminary decree in a partition suit, declaring the shares of the parties in the estate, and directing partition of the property other than the agricultural land does not put an end to the appointment of the receiver and despite the provisions of Order 20 Rule 18, it is legal for the Court to pass an order for ad interim injunction restraining interference with the receiver's possession of agricultural land."
23. In the case in between Hawrah Trading Company Pvt. Ltd. and Ors. v. Pramila Jain and Ors., this Court held "in law the position is that despite the suit having been settled and dismissed for non-prosecution, the Receiver will continue until specifically discharged by the Court. The Court is not minded to discharge the Receiver in respect of the property at this stage without an application being made specifically for such purpose. Since the Receiver is still continuing over the asserts of the plaintiff-company, the application pro inter se suo is maintainable."
24. In the case between Chaturbhuj Durgadas Factory v. Damodar Jamnadas Zawar and Ors., head note provides that the Receivership will be deemed to be continuing till specific order of discharge is passed.
25. In the case between Ram Charan Agarwal and Ors. v. Shridhar Mishra and Ors. the head note (e) runs as follows:
There is no automatic discharge of Receiver mainly because the proceeding in which he is appointed terminate, if the objects for which he was appointed are yet to be achieved.
26. In the case in between Rabeholme v. Smith and Ors. reported in Vol. 34 ILR page 336, the relevant page being 339 runs with the following lines:
The simple question then is whether the suit having been dismissed the Court had the power to make the order giving liberty to the Receiver to sell. I am bound to say that I do not think that the Court had that power, and for this short reason. By the dismissal of the suit, the suit came to an end, and although, where a Receiver has been appointed, the Court usually directs, at the instance of the parties or some of them that the Receiver should pass his final accounts and then be discharged....
27. In the case between Bhimappa Timmappa Kividi v. Gireppa Laxmappa Kivadi in para 9 the Hon'ble Court opined that although the suit came to an end the moment the order was made directing the return of the plaint, the Court was competent to issue directions with regard to the discharge of the functions of his office as a Receiver even if refiling of the plaint by the plaintiff in a proper Court.
28. In this regard, I am to state that this case will not help Mr. Mukherjee and the present opposite parties did not comply with the direction of the learned Judge, City Civil Court by filing the case before the proper forum within the stipulated period. The said case also goes to show that if any order with respect to the Receiver is required to be passed, it is the Court which passed the order for return of the plaint, has the power to pass appropriate order for continuation of the functioning of the Receiver.
29. In the case between Indra Motors Pvt. Ltd. v. Bina Pani Daw and Ors., the Hon'ble Judge of this Court opined on the basis of interpretation of statute that unless there is specific order of discharge of the Receiver, the Court shall presume that the functioning of the said Receiver will continue.
30. In the case between Hiralal Panti v. Loonkaran Sethiya and Ors., Hon'ble Apex Court held on facts that Receivers continued by the preliminary decree are entitled to function in that capacity till they are discharged, even though a final decree for the sale of the properties of the defendant was passed.
31. On the basis of the aforesaid decisions, Mr. Mukherjee contended that as there was no specific order regarding discharge of the Receivers by the learned Judge, City Civil Court, it must be presumed that the functioning of the Receivers is still in force and the Court by passing the impugned order only upheld the said view by allowing the application.
32. Mr. Chatterjee, learned Lawyer for the petitioners also relied upon the case in between Rabeholme v. Smith. He also relied upon the case in between Indra Motor Private Limited v. Bina Pani Daw and pointed out the difference in case of appointment of Receivers with respect to a suit and appeal and the case where order for return of plaint has been made. Shri Chatterjee relied upon the case in between Harshad Chimanlal Modi v. DLF Universal Ltd. and Anr. (supra) and on the basis of the same it. was submitted that the order of appointment of Receivers passed by the Judge, City Civil Court was without jurisdiction and when the plaint was returned with direction to present it before the proper forum, it does not come within the purview of transfer. As such, Mr. Chatterjee contended that the cases as referred by Mr. Mukherjee are not attracted in the instant case as the fact of the instant case is totally different from the cases as referred by Mr. Mukherjee.
33. Mr. Mukherjee, learned Lawyer for the opposite parties contended that in the case in between Saraogi Industrial Corporation and Ors. v. Subhadra Trading Company and Ors., which was numbered as APO No. 35 of 2006, the Division Bench headed by Hon'ble Mr. Justice Bhaskar Bhattacharya dealt with the Special Officers and in no circumstances the said Special Officers can be treated as Receivers.
34. Let me quote the relevant portion from running page 24 of the said judgment. "We, therefore, hold that after the withdrawal of the writ application by the Subhadra, the Court appointing the Special Officers has no further right to pass any direction affecting the right of the respondent over its properties and the only direction that can be passed is as regards the furnishing of the accounts by the Special Officers and the refund of the money lying in their hands to the respondent, the SAIL, after adjusting their remuneration."
35. On the basis of the same Mr. Chatterjee, learned Counsel for the petitioner contended that the Receivers, so appointed by the learned Judge, City Civil Court is answerable only to the said Judge if law permits. At the same time, Mr. Chatterjee contended that as the order was passed by a Court having no jurisdiction, the order of such appointment of Receivers is void ab initio and the appointment of Receivers came to a natural death after the order of return of plaint was passed.
36. On the basis of the reported cases and after hearing learned Lawyer for the parties I am of clear opinion that there is gulf of difference where order for return of plaint has been passed and the cases where the suit or appeal has reached its finality though order of discharge of the Receiver was not passed specifically.
37. In view of the decision in the case between Bhimappa Timmappa Kividi v. Gireppa Laxmappa Kivadi (supra) it is clear that where order for return of plaint has been made in connection with a suit where Receiver has been appointed, the Court which passed the order can pass appropriate order for continuation of the said Receiver.
38. I have already stated that in this case order passed by the learned Judge, City Civil Court was not complied with by the plaintiffs who were also plaintiffs in T.S. No. 28 of 1997 and as such, the said order passed by the learned Trial Judge in allowing the application for addition of parties cannot be supported.
39. Accordingly, this revisional application is allowed on contest but without any cost. The impugned order passed by the learned Trial Judge is hereby set aside.
40. Urgent xerox certified copy of this order be given to either of the parties on appropriate application within 15 days from this order.