Himachal Pradesh High Court
Gopal Sood vs Surinder Kumar Sood & Others on 11 November, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 396 of 2019 .
Reserved on: 31.10.2019 Decided on: 11.11.2019 __________________________________________________________ Gopal Sood .....Petitioner Versus Surinder Kumar Sood & others ......Respondents ____________________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1Whether approved for reporting? Yes.
______________________________________________________ For the petitioner: Mr. Mukul Sood, Advocate.
For the respondents: Mr. Sunil Mohan Goel, Advocate, for respondents No. 4 to 11.
Ms. Manju Dhatwalia, Advocate, for respondents No. 16(a) and 16(b).
____________________________________________________________ Chander Bhusan Barowalia, Judge The present petition, under Article 227 of the Constitution of India, has been maintained by the petitioner, against the order dated 03.05.2019, passed by learned Civil Judge (Jr. Div.), Palampur, District Kangra, H.P., in CMA No. 163/19, in Civil Suit No. 336/2009, whereby application filed by the petitioner-applicant, under Order 40 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 14/11/2019 20:24:34 :::HCHP 2of the Code of Civil Procedure, for appointment of receiver, was dismissed.
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2. Briefly stating the facts, giving rise to the present petition are that respondent No. 1, who is father of the petitioner, maintained a suit against the defendants, including the present petitioner for grant of decree of declaration to the effect that sale deed No. 1390/2007, dated 31.10.2007 and sale deed vide reference No. 353/2008, dated 25.02.2008 are illegal, null and void.
During the pendency of the said suit, the petitioner-
applicant filed application under Order 40 of CPC for appointment of the applicant as receiver for the purpose of management, protection, preservation and improvement of the suit land, wherein it has been averred that the suit is pending for the last more than 9 years and there is dispute regarding a Will and since the applicant is beneficiary of the alleged Will pertaining to the suit land, it is necessary for the management, protection, preservation, betterment and improvement of the suit land to appoint him as a receiver.
3. The application filed by the plaintiff was contested by the respondent by filing reply, wherein preliminary objections qua non-maintainability and no ::: Downloaded on - 14/11/2019 20:24:34 :::HCHP 3 provision for appointment of applicant as receiver have been taken. On merits, it has been denied that there is any .
Will in favour of the applicant and for management, protection, betterment and improvement of the suit land appointment of receiver is necessary. Lastly, a prayer for dismissal of the application with costs has been made.
4. Learned trial Court vide order dated 03.05.2019 dismissed the application so filed by the applicant. Hence, the present petition.
5. Mr. Mukul Sood, learned counsel for the petitioner has argued that since there is a Will in favour of the petitioner-applicant, learned trial Court should have allowed the application and appointed receiver to protect the property and the order passed by learned trial Court is not sustainable in the eyes of law, as the learned trial Court has not considered the basic law on the subject.
6. On the other hand, Mr. Sunil Mohan Goel, learned counsel for respondents No. 4 to 11 has argued that the learned trial Court has passed the order in accordance with law, since the application was filed after 9 years of the pendency of the suit, which was maintained by the father of the petitioner against him. He has further ::: Downloaded on - 14/11/2019 20:24:34 :::HCHP 4 argued that the purpose of the application was just to delay the proceedings and there is no question of Will involved in .
the suit, even otherwise also the application was not maintainable.
7. In rebuttal, Mr. Mukul Sood, learned counsel has argued that the question of Will is there, however, the learned trial Court without appreciating the facts to its true perspective, dismissed the application of the petitioner-
applicant. Accordingly, the present petition may be allowed and order dated 03.05.2019 be set aside.
8. To appreciate the arguments of learned counsel for the parties, I have gone through the record in detail.
9. In the instant case, the applicant could not show the irreparable loss that would be caused to him, if receiver is not appointed. The learned trial Court has not appointed the receiver as there was no eminent danger of the property. The applicant has failed to show any prima facie case in his favour and from the record it is clear that the suit was maintained by the father of the applicant, in which he was one of the defendant. The law on the subject is very clear that a receiver cannot be appointed if there is possibility that he/she will dispossess the defendant(s) from ::: Downloaded on - 14/11/2019 20:24:34 :::HCHP 5 the suit land and results into irreparable loss to the defendant(s).
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10. The discretion of the Court is to be exercised only where the Court finds that there are reasonable grounds to exercise jurisdiction, however, in the instant case there is no reasonable grounds made out by the applicant for exercising such jurisdiction. Order 40, rule 1 of the Code of Civil Procedure provides as under:-
"Order 40 Rule (1) Appointment of receivers:-
(1) Where it appears to the Court to be just and convenient, the Court may by order:-
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management or the receiver, and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
2. Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove".
Since there is no prima facie case in favour of the applicant nor the applicant makes out a case that the property will be destroyed or there is any element of ::: Downloaded on - 14/11/2019 20:24:34 :::HCHP 6 danger to the property, the question of Will is not the main question involved in the suit and the application was filed .
after 9 years of the pendency of the suit.
11. In these circumstances, this Court finds that the order passed by learned trial Court is as per law and calls for no interference after exercising the powers under Article 227 of the Constitution of India, as the applicant-petitioner has failed to show any perversity in the impugned order.
Accordingly, the present petition, which is devoid of merits, deserves dismissal and is dismissed. Pending application(s), if any, also stands dismissed. Parties to appear before the learned Court below on 28.11.2019.
(Chander Bhusan Barowalia) Judge November 11, 2019 (raman) ::: Downloaded on - 14/11/2019 20:24:34 :::HCHP