Delhi High Court
Shri Gurvir Inder Singh vs Shri Jugvir Inder Singh And Others on 2 March, 2001
Author: Mukundakam Sharma
Bench: Mukundakam Sharma, Mukul Mudgal
ORDER Dr. Mukundakam Sharma, J.
1. This appeal is directed against the order dated 10.3.1998 passed by the learned Single Judge in Suit No.3084/1991. The present appellant is the plaintiff whereas the respondents herein are the defendants in the aforesaid suit.
2. The present appellant as plaintiff initially instituted a suit registered as S.No. 2526/1987 claiming partition of alleged Hindu undivided properties, one of which properties was the property situate at B-21, West End Diplomatic Enclave Extension, New Delhi, which is the subject mater of this suit out of which the present appeal arises. The aforesaid Suit No.2526/1987 was compromised between the parties and a judgment/order to that effect was passed on 5.9.1989. However, on the allegation that the aforesaid compromise decree was not given effect toby the other parties the appellant herein filed the present suit as the plaintiff seeking for a decree for partition of the aforesaid property located at West End Diplomatic Enclave Extension, New Delhi.
3. The said suit is being contested by the respondents herein. During the pendency of the aforesaid suit a number of applications came to be filed. I.A. No.1117/1991 was filed by the present appellant on 20.9.1991 praying for appointment of a Receiver for the safe custody and protection of the suit property namely, B-21, West End Enclave, New Delhi. The learned Single Judge took up the said application for consideration on 10.3.1998 and by order of the same date dismissed the said application holding that since the entire subject property is in the occupation of one Mrs. Ute Banerjea Kommers there is no need to appoint a Receiver to take care of the said premises, although there isa serious controversy between the parties with regard to the alleged tenancy of said Mrs. Kommers.
There was another application being I.A. No.10382/1997 which was also pending disposal. The said application was also filed by the appellant herein praying for appointment of a Receiver to take vacant possession of the suit property and also to keep the said property under the Receiver's watch and ward. An order was passed on the said application also on 10.3.1998 giving leave to the plaintiff to withdraw the said application with liberty to file a comprehensive application setting out the subsequent events and the said application was dismissed as not pressed.
I.A. 11583/1997 was disposed of by the learned Single Judge directing that the cheques issued by Mrs. Kommers towards rent of the premises shall be encashed by the defendants and the proceeds thereof deposited in the court within a week of the encashment.It was further ordered on the said application that Mrs. Kommers would issue cheques for the user of the suit properties favoring the Registrar of the High Court so that the cheques could be deposited directly in the Registry.
There were few other applications relating to the occupation of the suit premises by the previous tenant Mr.H.C.Von Sponeck, Resident Representative of United Nations Development Programme on Research Coordination. As Mr. Sponeck vacated the suit premises, those applications were held to have become infructuous and were accordingly disposed of. Orders on all the aforesaid applications were passed on 10.3.1998.
4.Counsel appearing for the appellant in support of his appeal submitted before us that the learned Single Judge erred in law and facts in not appointing a Receiver for the safe custody and protection of the suit property. He submitted that there is a serious dispute between the parties in respect to the title and occupation of the suit property and that Mrs. Ute Banerjea Kommers also surreptitiously entered into the possession of the said property and therefore, her occupation of the premises is not legal and valid and therefore, for safe custody, protection and proper management of the property a receiver was required to be appointed. He also submitted that only Rs.75,000/- per month is being received from the said suit premises as occupation charges which is being paid by Mrs. Ute Baner jea Kommes, which is much below the market rate prevalent in the said area where the suit property is located. According to him the property should fetch much higher much higher amount and that is because, there is no proper management of the suit property therefore, the property is in occupation on payment of charges much lower than what it could actually fetch in the open market if the said property is managed properly.
5. Learned Counsel appearing for respondents No.2 & 3, on the other hand submitted that this appeal is misconceived. He submitted that the pre-condition for appointment of a Receiver is not satisfied in the present case and therefore, the learned Single Judges rightly rejected the application field by the plaintiff for appointment of a Receiver. He submitted that since the property is in occupation of a tenant no Receiver could be appointed in respect of the said property during the period in which a tenant is in occupation of the property.
6. We have considered the aforesaid submissions of the counsel appearing for the parties. It is necessary to point out at this stage that Along with the present appeal the appellant field an application which was registered as C.M.2984/1998 praying for appointment of an interim Receiver or Local Commissioner for the purpose of ensuring that the person who is presently in occupation of the suit property does not part with possession of the premises to any third party. By an order dated 3.9.1998 the Division Bench of this court thought it appropriate in the fact sand circumstances of the case to appoint the Register of this court to be the interim receiver with a direction to Mrs. Ute Baner jea Kommers not to part with possession of the premises presently in her occupation, in whatever manner, to any person other than the Registrar of this Court. It was also directed that in the meanwhile for the use and occupation charges of the said premises an amount of Rs.15,000/- per day in terms of the original lease be deposited month to month with the Register of this Court, who will make a fixed deposit of the amounts received so as to earn the highest rate of interest. Pursuant to the aforesaid order although the Registrar of this Court was appointed as the interim receiver no payment at the r ate fixed by this court was paid by the said Mrs.Ute Baner jea Kommes till date. The Registrar has stated t hat the aforesaid amount although was directed to be paid by Mrs. Ute Banerjea, the same was not deposited with him. Since Mrs. Ute Banerjea allegedly had diplomatic immunity she avoided to attend the court in spite of receipt of the notice of the Court taking shelter of the diplomatic immunity. Be that as it may, an application was also field by the respondent No. 2 praying for recalling the order passed by this court on 3.9.1998, which was registered as C.M.3024/1998.
7. We have heard the learned counsel appearing for the parties on the appeal as also on the pending applications and we propose to dispose of the said applications as also the appeal in terms of the order passed herein.
8. The orders as against which the present appeal has been preferred as also the order in respect of which the application is filed by the respondents No.2 & 3 for recalling are inter-connected and therefore, they are to be dealt with together. The suit for passing a decree of partition of the suit property is pending disposal. Suit property is the property which is now under the occupation of Mrs. Ute Baner jea Kommers and her very occupation of the property is also challenged by the appellant/plaintiff. The appellant has not recognised her as the lawful tenant of the property and it is stated by the appellant that after the property was vacated by the previous tenant, she entered into possession of the said property surreptitiously without any notice to the appellant. It is also on record that Rs.75,000/- which is being received as occupation charges for the said property is much below the market rate prevalent in the said area. Appreciating the said fact this court had also ordered as an interim measure for payment of Rs.15,000/- per day for the use and occupation charges of the said property. The said amount in terms of the direction is not being by Mrs. Ute Banerjea who is in occupation of the said premises. It is also on record that although the previous occupant vacated the suit premises the same was without any knowledge to and of the appellant/plaintiff and the possession of the property was handed over by him directly to Mrs. Ute Banerjea Kommers with alleged connivance of respondents No.2 & 3 herein.
9. Since a suit for partition is pending between the parties in this court wherein a claim is laid by the appellant/plaintiff that the said suit property is required to be partitioned amongst the parties it would be necessary and just and proper that the suit property is properly preserved, protected and maintained during the pendency of the suit so that the property is neither misused nor there is loss to the parties so far yield from the property is concerned. It also transpires from the record that Mrs. Ute Banerjea Kommes has treated the respondents herein as her landlords as she was paxing an amount by way of cheques of Rs.75,000/- per month to the said respondents although the appellant herein does not recognise here as a lawful tenant of the premises. Therefore, there is every possibility of said Mrs. Ute Banejea Kommers using the property to the detriment of the appellant. There is also an apprehension raised by the appellant that possession of the suit property could be handed over by Mrs. Kommers to a third party at any time. The rent which is being deposited in court in terms of the order of the learned Single Judges also cannot be said to be market rent for the suit property. Taking all the aforesaid factors into prima facie considerations, this court has passed an interim order appointing the Registrar of this court as interim receiver with further direction to Mrs. Ute Banerjea Kommes not to part with possession of the premises presently in her occupation in whatever manner to any other person other than in Registrar of this Court.
10. It also transpires from the record that another application being application No.3604/1998 was also filed by the appellant herein praying for appointment of a Receiver for the suit property, which is pending disposal. Liberty was also granted by learned Single Judge to the appellant/plaintiff to withdraw his interim application for appointment of a receiver registered as I.A. 10382/1997 and filed a comprehensive application setting out the subsequent events.
11. As there is a serious dispute between the parties with regard to the title and occupation of the suit premises the learned Single Judge has directed that the cheque for occupation of the suit premises shall be issued by Mrs. Kommes in favor of the Registrar of the High Court. When an order is passed for deposit of the amount for occupation of the property in there name of the Register, the same could also be passed under Order 40 Rules 1 CPC for the restricted purpose of appointing a Receiver. The order to deposit the amount in the name of the Registrar of the High Court was passed with the intention of protecting and preserving the yield of the suit property and also for efficient management. But a Receiver appointed only for the purpose of collecting the amount towards occupation of the suit premises may not have the power to realise the amount and also t o receive possession of the suit premises, if the same is vacated by the present occupant. Thus the order passed by the learned Single Judge rejecting the application (I.A.No.1117/1997) only on the ground that the suit property is in occupation of Mrs. Kommes although being aware of the fact that the said occupation itself is under controversy and challenge cannot be upheld . The said order is also liable to be set aside on the ground that the learned Single Judge by the order of the same date has given liberty to the appellant to file a comprehensive application for appointment of Receiver giving facts regarding subsequent events and also for the fact that another application seeking for the same relief being I.A.3604/1998 is also pending. According, the order dated 10.3.1998 passed in I.A.1117/1997 is set aside and matter regarding appointment of Receiver is remitted back to the learned Single Judge for fresh consideration allowing the appellant three weeks time to file a comprehensive application on the subject matter of appointment of Receiver in terms of the order dated 10.3.1998 of the learned Single Judge in I.A.10328/1997. The order dated 10.3.1998 passed by the learned Single Judge, therefore, is interfered with only to the aforesaid extent. In the event of filing of such an application within 3 weeks the same shall also be considered by the learned Single Judge Along with the other two applications. The learned Single Judge shall consider the contents of the applications read withe the reply field thereto by the respondents No.2 & 3 in accordance with law and pass orders on the applications for appointment of Receiver not being in any manner influenced by the prima facie observations made in the present order as also in the order dated 3.9.1998. The learned Single Judge shall be free to decide the issue in any manner by exercising his own judicial mind an in accordance with law, on consideration of the entire facts and circumstances of the case. While doing so he may also consider the ratio of the decision of the Madras High Court in T.Krishnaswamy Chetty Vs. C. Thangavelu Chetty & others ; . It may also be necessary for him to consider whether the share of the appellant is in dispute or not and the fact that the property is in medio or not. The appeal stands disposed of in terms of the aforesaid order. The order for deposit of the rent of the suit property in this court in the name of the Registrar and the order appointing Registrar of this court to be interim receiver with a direction to Ms. Ute Banerjea Kommers not to part with possession of the suit premises presently in her occupation, in whatever manner, to any person other than Registrar of this court shall continue to operate till an order is passed by the learned Single Judge in terms of the order passed here.