Rajasthan High Court - Jodhpur
Dev Prakash And Anr vs Smt. Indra And Ors on 1 October, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:38140]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 913/2015
1. Dev Prakash S/o. Heera Lal Soni, aged 45 years,
2. Rameshwar adopted son of Vasudeoji Soni, aged 57 years,
Both are resident of In front of Sunaron Ki Panchayat
Bhawan, Old Jail Road, Bikaner.
----Appellants
Versus
1. Smt. Indra D/o. Late Prabhu Dayal W/o. Manoj Kunar Soni, R/
o. Gali No. 7, Near Jail Tank, Bikaner.
2. Bindu D/o. Prabhu Dayal, R/o. Near Kanwarji Temple, Mudia
Malion Ka Mohalla, Sunaraon Ki Badi Guwad, Bikaner. (Deleted
vide order dated 24.07.2019)
3. Teena D/o. Prabhu Dayal W/o. Mahesh Kumar Soni, R/o. In
front of Luharon Ki Masjid, Bikaner.
4. Pinki D/o. Prabhu Dayal, W/o. Praveen Kumar Soni, C/o.
Poonam Chand Soni, Praveen Soni, Nirnay Nagar,
Sector-8/AG/11, B-9-12, Ahmedabad.
5. Rubi D/o. Prabhu Dayal, W/o. Yogesh Kumar Soni, R/o. Rangdi
Chowk, Bikaner.
6. Smt. Asha Devi W/o. Prabhu Dayal Soni, Sunaron Ki Badi
Guwad, Bikaner.
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 958/2015
1. Dev Prakash S/o. Heera Lal Soni, aged 45 years,
2. Rameshwar adopted son of Vasudeoji Soni, aged 57 years,
Both are resident of In front of Sunaron Ki Panchayat
Bhawan, Old Jail Road, Bikaner
----Appellants
Versus
1. Smt. Indra D/o. Late Prabhu Dayal W/o. Manoj Kunar Soni,
R/o Gali No. 7, Near Jail Tank, Bikaner.
2. Bindu D/o. Prabhu Dayal, R/o. Near Kanwarji Temple, Mudia
Malion Ka Mohalla, Sunaraon Ki Badi Guwad, Bikaner. (Deleted
(Downloaded on 03/10/2024 at 09:52:08 PM)
[2024:RJ-JD:38140] (2 of 23) [CMA-913/2015]
vide order dated 24.07.2019)
3. Teena D/o. Prabhu Dayal W/o. Mahesh Kumar Soni, R/o. In
front of Luharon Ki Masjid, Bikaner.
4. Pinki D/o. Prabhu Dayal, W/o. Praveen Kumar Soni, C/o.
Poonam Chand Soni, Praveen Soni, Nirnay Nagar,
Sector-8/AG/11, B-9-12, Ahmedabad.
5. Rubi D/o. Prabhu Dayal, W/o. Yogesh Kumar Soni, R/o. Rangdi
Chowk, Bikaner.
6. Smt. Asha Devi W/o. Prabhu Dayal Soni, Sunaron Ki Badi
Guwad, Bikaner.
----Respondents
For Appellant(s) : Mr. JL Purohit (Sr. Adv.) with Mr.
Rajeev Purohit
For Respondent(s) : Mr. Nishank Madhan
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment Reserved on: 10/09/2024 Pronounced on: 01/10/2024
1. These misc. appeals are filed by the appellants/defendants under Order 43 Rule 1(s), Civil Procedure Code, 1908 (hereinafter as 'CPC') against the orders dated 25.04.2015 passed by the Additional District Judge No. 3, Bikaner (hereinafter as 'the trial court') in Civil Misc. Case No.(s) 12/2015 and 13/2015 respectively, whereby the learned trial court has allowed applications filed by the respondent no. 1 to 5 under Order 39 rule 1 & 2 read with Section 151 of the CPC and Order 40 Rule 1 read with Section 151 of the CPC respectively.
2. Briefly stated, the facts of the case are that on 10.02.1995 the partnership firm- M/s Chandratan Heeralal, Luharon ka (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (3 of 23) [CMA-913/2015] Muhalla, Naya Kuan, Bikaner(hereinafter as 'the firm') was created between Late Prabhu Dayal (hereinafter as 'deceased partner')and Mr. Dev Prakash (hereinafter as 'Appellant no. 1') and a partnership deed was executed between them on 15.08.1995 and they both had equal partnership in the properties of the firm. The firm was registered with Registrar of firms and a license under The Rajasthan Shops and Commercial Establishments Act,1958 was also taken. The immovable property(at Luharon ka Muhalla, Naya Kuan, Bikaner) at which firm is situated was an immovable property of the deceased partner, which he inherited from his grandfather as part of his share in the ancestral property. Thereafter, on 30.05.2014 the deceased partner met his demise. Afterwards, when the legal representatives (respondents herein) of the deceased partner went to the firm to take care of the properties of the firm, they got to know that the appellant no. 1 has recreated the firm (after its dissolution as a result of the death of the deceased partner) with Appellant no. 2 as the new partner. The respondents approached the appellant no. 1 to get their share in the properties of the firm, which they claimed in the capacity of legal representatives of the deceased partner and also to get back the immovable property on which the premises of the firm is situated as being a personal property of the deceased partner. However, the appellant no. 1 communicated to them that the firm has been recreated therefore, the respondents have no share in the firm. Thus, a dispute arose between the parties and the respondent nos. 1 to 5(Plaintiffs) filed the suit for permanent injunction along with two applications- Civil Misc. Case No.(s) (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (4 of 23) [CMA-913/2015] 12/2015(application under Order 39 Rule 1 & 2, CPC) and 13/2015(application under Order 40 Rule 1,CPC) before the learned trial court.
3. It was contended by the respondent nos. 1 to 5 before the learned trial court that the immovable property on which the firm was working does not belong to the firm and rather it is the personal property of the deceased partner which was given by him to the firm for operation of the firm business. However, when the respondents approached the appellant no. 1 for the immovable property of the deceased partner and their share in the properties of the firm(in capacity of the legal representatives of the deceased partner) they were told by the appellant no. 1 that they have no share in the properties of the firm.
4. It was contended by the respondent nos. 1 to 5 before the learned trial court that the appellants herein have no right to use the properties of the dissolved firm as well as the income earned from the use of it as records of accounts of the dissolved firm was not available. Further, they contended that the appellants herein were not justified in using the goodwill of the firm without the consent of the legal representatives of the deceased partner. Thus, the respondent nos. 1 to 5 sought temporary injunction and appointment of receiver by citing grounds of balance of convenience and to avoid irreparable damage to the immovable and movable properties of the firm.
5. It was contended by the appellants herein in their reply to the applications before the learned trial court that the firm is a family partnership which was created in the year 1962 by (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (5 of 23) [CMA-913/2015] Heeralal(Father of the appellant no.1) and Chandratan(father of the deceased partner) and all the machineries and other things of the firm were bought by Heeralal and Chandratan. It was further, contended by the appellants herein before the learned trial court that the immovable property on which the firm is working was not a personal property of the deceased partner rather it is in the name of Late Kodu Ram (Grandfather of appellant no. 1 and the deceased partner) and vide decree dated 13.05.2003, in a suit for partition (Civil Case no. 180/1996), a share of 1/6 was decreed by the learned Additional District Judge no. 1, Bikaner amongst the 6 heirs of the Late Kodu Ram, and as a result the deceased partner along with his 2 siblings got 1/6 share. It was also stated by the appellants herein before the learned trial court that the counter claim filed by the deceased partner in Civil Case no. 180/1996 was rejected, against which an appeal no. 209/2003 was preferred by the deceased partner before this Court, which is still pending.
6. It was contended by the appellant no. 1 herein before the learned trial court that after the death of the deceased partner, the appellant no. 1 has given Rs. 1,20,000/- in cash to respondent no. 6 (wife of the deceased partner), after settling the accounts of the earlier firm, and also requested her to inform him about her remaining share as per the records of accounts of the firm, which are with her and to which she agreed. And only after the full satisfaction of the respondent no. 6 with respect to the settlement of the accounts, the new partnership was created on 01.07.2014. However, later on respondent no. 6 along with other respondents(Plaintiffs) came to the premises of the firm and (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (6 of 23) [CMA-913/2015] interrupted the business of the firm by stating that she is the partner of the firm and also filed false cases against the appellants, with a motive to create pressure upon the appellants herein. And against such interruptions in the workings of the firm by the respondent no. 6, the appellants herein filed a suit no. 272/2014 before the Civil Judge, Bikaner for injunction against the respondent no. 6 to restrain her from hindering the working/business of the firm, which was allowed by the court and a temporary injunction was granted against respondent no. 6 restraining her from hindering the business of the firm.
7. It was further contended by the appellants herein before the learned trial court that the respondent nos. 1 to 5(Plaintiffs) have filed the suit for declaration of their share in the firm however, neither the firm has been impleaded as a party nor the appellants have been impleaded in the capacity of the partners of the firm. It was also contended by the appellants herein before the learned trial court that the settlement of the accounts of the firm has already been done with the respondent no. 6 and the immovable property, where the firm is situated, does not belong to the firm and rather is the ancestral property of the appellant no. 1 and the respondents.
8. It was also contended by the appellants herein before the learned trial court that a partnership firm is a contract between two partners and question of right of inheritance does not arise. And the legal representatives of the deceased partner do not have any right to a share in the partnership firm. Moreover, the respondents herein have never specified their share in the firm or (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (7 of 23) [CMA-913/2015] tendered the accounts of the properties that were put in the firm and also the partnership deed that has been produced does not contain mention of the properties of the firm. It was also alleged by the appellants before the learned trial court that the respondents herein do not have any right in the immovable property or the properties of the firm after the death of the deceased partner as the immovable property is an ancestral property and a lis with respect to its partition is sub-judice.
9. After hearing arguments of both the parties the learned trial court vide two separate orders dated 25.04.2015 allowed both the applications - Civil Misc. Case no. 12/2015 and 13/2015 respectively filed by the respondent nos. 1 to 5(Plaintiffs) and issued temporary injunction against the appellants herein to restrain them from using and alienating the properties of the firm and the immovable property as mentioned in the plaint of the respondent nos. 1 to 5(Plaintiffs) and also appointed a receiver with the consent of the parties with direction to the appointed receiver to take into his custody the properties of the firm and to restrain any of the parties to use such properties and to preserve the same till the disposal of the main suit or passing of any other order in this regard. And the counter claim of the appellants herein was rejected.
10. Aggrieved by these orders present appeals have been filed by the Appellants.
11. The learned counsel appearing on behalf of the appellants submitted that the respondents have failed to make out any case for appointment of receiver as well as grant of injunction in their (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (8 of 23) [CMA-913/2015] favour. He further submitted that a receiver cannot be appointed merely because it is expedient or convenient to one of parties to do so and the plaintiffs must not only show a case of adverse and conflicting claims to property, they must further show some emergency or danger or loss demanding immediate action and further the plaintiffs own right must be reasonably clear from doubt, which the respondents have failed to do. He also submitted that the findings of the learned Trial Court on the question of balance of convenience and irreparable loss are wrong as the respondents have failed to establish their right over the property. The properties are ancestral for which the appeal is pending before this court. He further submitted that the appellants are doing their business and in case the stay order granted by the learned trial court is continued they will suffer irreparable loss which will cause great hardship to the them.
12. The learned counsel appearing on behalf of the appellants also submitted that the appointment of receiver pending a suit is a matter resting in the discretion of the court but the discretion cannot be exercised arbitrarily or in an unregulated manner, it must be exercised judicially, cautiously and according to legal principles on a consideration of the whole of the circumstances of the case. He submitted that the court should not appoint a receiver except upon proof by the plaintiff that he has a prima facie case and has a very excellent chance of succeeding in the suit, which the respondents have failed to do. He further submitted that an order of appointing a receiver will not be made where it has the effect of depriving a defendant of a de-facto (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (9 of 23) [CMA-913/2015] possession since that might cause irreparable wrong. It would be different where the property shown to be in medio i.e. to say, in the enjoyment of no one, which is not the case in the present matter. Thus, the order for the appointment of receiver cannot be sustained.
13. The learned counsel appearing on behalf of the appellants submitted that respondent nos. 1 to 5 have filed a suit claiming 1/2 share in the properties of the firm however, on account of the death of the deceased partner the firm stood dissolved. He further, submitted that admittedly respondent nos. 1 to 5 have not impleaded firm as a party nor the Appellant no.1 herein (defendant no. 1 in the suit) or the appellant no. 2 herein (defendant no. 2 in the suit) have been impleaded in the capacity of the partner of the firm therefore, suit as filed by them is not maintainable.
14. The learned counsel appearing on behalf of the appellants submitted that the firm was working on the immovable property, which is an ancestral property. And it is an admitted position that a partition suit was filed between the successors of Kodu Ram and in that suit 1/6th share of Chand Ratan(father of the deceased partner) was determined and appeal against the preliminary decree granted by the Trial Court is pending before the this Court, therefore, on the face of these facts the ownership of the deceased partner over the property is not established. Moreover, there is no recital in the partnership deed that immovable property was included by the deceased partner. He also submitted that the movable property of the firm, as per the inventory (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (10 of 23) [CMA-913/2015] prepared by the Court Commissioner, are all machines and equipments for the purpose of polishing the ornaments or utensils and these properties are ancestral properties which were purchased by the partners who constituted a firm in 1962 and none of the properties mentioned in the inventory were purchased by the deceased partner. The fact that these properties are ancestral has not been denied by the respondents and thus, claim of the respondents over the immovable property and the properties of the firm cannot be accepted and once it is established that the respondents have no right over the properties of the firm as well as the immovable property then in that circumstances the learned trial court had no jurisdiction to grant injunction in favour of the respondents as well as to appoint a receiver.
15. The learned counsel appearing on behalf of the appellants submitted that in the present suit plaintiffs have claimed 1/2 share in the properties of the deceased partner or of the firm however, the learned trial court misconstrued the prayer made in the paint and came to the conclusion that present suit is for dissolution and for rendition of accounts after winding up the firm whereas there is no such prayer in the plaint, therefore, the finding given by the court below is perverse.
16. The learned counsel appearing on behalf of the appellants submitted that the respondent nos. 1 to 5 have come with a case that properties mentioned in Para No. 10 of the plaint is the property of the deceased partner as an owner and they have not claimed their rights on the basis of the provisions of Indian (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (11 of 23) [CMA-913/2015] Partnership Act. He also submitted that in the suit no. 272/2014 filed by the appellants herein against the respondent no. 6, the court has already granted injunction in favour of the appellants restraining respondent no. 6 from interfering in the working of the firm and the appeal filed against this order was also dismissed therefore, the finding of the learned trial court declaring right to demand the accounts of the firm is perverse.
17. The learned counsel appearing on behalf of the appellants submitted that the finding of the learned trial court that the immovable property will be treated as property of the firm as the same was used by the firm for its business purposes, is wrong. The property used by the firm for its business purposes is an ancestral property for which the partition suit/appeal is still pending. Therefore, it cannot be treated to be the property of the firm.
18. The learned counsel appearing on behalf of the appellants placed reliance on the following judgments:
C.D. Grover and Ors. vs. Ashok Kumar[AIR 1997 Raj 281], Dhokal Singh v Ridhmal[1955 0 RLW (Raj) 346], Dilman Rai Vs. Srinarayan Sharma and Ors. [AIR 1983 Sik 11], Gumanlal v Shambulal[1955 0 RLW (Raj) 20], Jagannath Parulekar Vs. Uday Mandrekar [AIR 1976 Goa, Daman and Diu 70], Jai Narayan Misra Vs. Hashmathunnisa Begum [AIR 2002 AP 389], Mohd. Laiquiddin and Ors. Vs. Kamala Devi Misra (Dead) by L.Rs. and Ors. [(2010) 2 SCC 407].(Downloaded on 03/10/2024 at 09:52:08 PM)
[2024:RJ-JD:38140] (12 of 23) [CMA-913/2015]
19. Per contra, the learned counsel appearing on behalf of the respondents submitted that the firm was created on 15.08.1995 between the deceased partner and appellant no.1 and the partnership deed was executed. Thus, the contention raised on behalf of the appellants that the partnership firm was established by their ancestors way back in 1962 is not correct as no documentary evidence regarding the same has come on record.
20. The learned counsel appearing on behalf of the respondents submitted that after the death of the deceased partner, the firm stood dissolved in light of section 42 of the Indian Partnership Act, 1932 moreover, according to section 46, on the dissolution of a firm every partner or his representative is entitled, as against all the other partners or their representatives, to have the property of the firm applied in payment of the debts and liabilities of the firm, and to have the surplus distributed among the partners or their representatives according to their rights. He also submitted that as per section 53, after a firm is dissolved, every partner or his representative may, in the absence of a contract between the partners to the contrary, restrain any other partner or his representative from carrying on a similar business in the firm name or from using any of the property of the firm for his own benefit, until the affairs of the firm have been completely wound up. However, after the dissolution of the firm, the winding up of the firm was not done in accordance with the provisions of the Act and instead, the appellant no. 1 immediately thereafter created a new firm with appellant no. 2 as partner in name of the previous firm and started using premises, properties and the goodwill of the (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (13 of 23) [CMA-913/2015] firm without the consent of the respondents which is contrary to Ss. 14 and 15 of the Act.
21. It was further submitted by the learned counsel appearing on the behalf of the respondents that the submission of the appellants that they have given Rs 1,20,000 to Respondent no. 6 as settlement of the accounts of the dissolved firm is not correct as there is no documentary evidence pertaining to the same as available on the record.
22. The learned counsel appearing on behalf of the respondents submitted that the appellants themselves have accepted the share of the deceased partner in the immovable property in their reply before the learned trial court.
23. It was further submitted by the learned counsel appearing on the behalf of the respondents that the appellants had been continuously using the property and goodwill of the firm as well as the immovable property since the death of the deceased partner. Hence, this act has led to irreparable loss and damage to the respondents. Therefore, the impugned order passed by the learned trial court is correct in law.
24. The learned counsel appearing on the behalf of the respondents has placed reliance on the following judgments:
Rajendra Kumar Sharma Vs. Brijendra Kumar Sharma and Ors.
[AIR 1994 All 62], Nihalchand L. Jai Narain and Ors. Vs. Ram Niwas Munna Lal and Ors. [AIR1968P&H523 ], Mohd. Laiquiddin and Ors. Vs. Kamala Devi Misra (Dead) by L.Rs. and Ors. [(2010) 2 SCC 407], Sheonarian Jaiswal v Shree Kripa Shankar Jaiswal[1972 0 AIR(Pat) 75], Tilak Chand Jain Vs. Darshan Lal (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (14 of 23) [CMA-913/2015] Jain and Ors.[AIR 1985 J&K 50], Smt. Jayamma v. Adhyaksha, Zilla Panchayat, Mandya District[2009 SCC OnLine Kar 108].
25. Heard the parties and perused the material available on record. The appellants herein have preferred these appeals with following prayers respectively:
" In S.B. Civil Misc. Appeal No. 913/2015:
It is therefore, humbly and respectfully prayed that the appeal filed by the appellants may kindly be allowed and the judgment of the learned Trial Court dated 25.04.2015 in Civil Misc. Case No. 13/2015 passed by the learned Addittional District Judge No. 3, Bikaner may kindly be quashed and set aside. Cost of this appeal may kindly be awarded in favour of the appellants.
In S.B. Civil Misc. Appeal No. 958/2015:
It is therefore, humbly and respectfully prayed that the appeal filed by the appellants may kindly be allowed and the judgment of the learned Trial Court dated 25.04.2015 in Civil Misc. Case No. 12/2015 passed by the learned Addittional District Judge No. 3, Bikaner may kindly be quashed and set aside and the injunction as prayed by the appellants may be granted. Cost of this appeal may kindly be awarded in favour of the appellants."
26. The crux of the matter is that the respondent nos. 1 to 5(Plaintiffs) filed a suit in which they prayed that a decree may be passed in favour of the respondents and against the appellant nos. (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (15 of 23) [CMA-913/2015] 1 and 2 regarding the partnership deed which was executed on 15.08.1995 between the deceased partner(Prabhu Dayal) and appellant No. 1(Dev Prakash). After the death of the deceased partner, it was prayed that the property where from the firm-M/s Chandratan Heeralal was doing its business is of the deceased partner, and if this property is not declared as the property of deceased partner, then it may be declared as belonging to the firm, and the respondents No.1 to 5/plaintiffs and respondent No.6/defendant No.3 may be allowed 1/2 portion each in movable and immovable properties of the firm.
27. During the course of the suit, the respondent nos. 1 to 5 filed an application under Order 39, Rule 1 & 2 read with section 151, CPC for temporary injunction and also filed another application under Order 40 Rule 1 read with section 151, CPC for appointment of receiver. The purpose of temporary injunction and appointment of receiver being interim orders is to preserve the relief while the suit remains pending and thus, both the remedies at an interim stage provide for a protection of the relief until the final decree is passed.
28. The applications for appointment of receiver and temporary injunction respectively have been allowed and the appellants herein have been restrained from illegally using the properties of the firm and thereby causing financial loss to the respondents and the same have been challenged by the appellants herein before this court.
29. This court while hearing both the parties on 28.05.2015 observed that looking into the close relationship between the (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (16 of 23) [CMA-913/2015] parties, the matter is to be referred to Mediation Centre and also ordered that while the parties conduct such mediation proceedings, the effect and operation of the impugned orders dated 25.04.2015 shall remain stayed and the possession of the suit property shall remain with the appellants herein(defendant nos. 1 and 2) who were running the business in the name of the firm(M/s Chandratan Heeralal) in the suit premises.
30. The interim order dated 28.05.2015 in the S.B. Civil Misc. Appeal No. 913/2015 reads as under:
"Looking to the close relationship between the parties and the dispute of property in a partnership firm where the business is carried out by the defendants now after the death of plaintiff's father namely, Prabhu Dayal, the matter deserves to be settled amicably through mediation, therefore, the matter is referred to the learned Mediation Centre attached with this Court.
The parties may appear before the trained Mediator on 14.07.2015. Both the learned counsels will ensure the presence of both the parties before the learned Mediator on the given date or dates for arriving at a mutual and amicable settlement of the dispute.
The learned Mediator is granted six week's time for exploring the possibilities of mutual and amicable settlement of the dispute between the parties. The matter may again be listed before the Court on 07.09.2015 Till then, the operation and effect of the impugned order dated 25.04.2015 shall remain stayed and the possession of the suit property which may be with the Receiver Shri Brij Ratan Vyas, Advocate, may be handed over back to the appellants- defendants, who were running the business in the name and style of M/s Chandratan Heeralal in the suit premises, since the point of time of death of Shri Prabhu (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (17 of 23) [CMA-913/2015] Dayal, father of the plaintiffs subject to final decision of this appeal."
31. A co-ordinate bench of this court has also passed an interim order in the S.B. Civil Misc. Appeal No. 958/2015 vide order dated 29.05.2015, wherein the interim order dated 28.05.2015 passed in S.B. Civil Misc. Appeal No. 913/2015 was made applicable to S.B. Civil Misc. Appeal No. 958/2015 as well. The same is reproduced as under:
"The parties are present in person. Heard the parties, as the lawyers are observing strike on the last working day of the months.
In identical and connected civil misc. appeal, being S.B.C.M.A. No.913/2015-Dev Prakash & Anr. Vs. Smt. Indra & Ors., this Court has already passed a detailed order yesterday on 28.05.2015, a copy of which may be placed in the present case-file. and this Court has referred the dispute between the parties to the Mediation Centre attached to this Court, where the parties to the suit have been directed to appear in person before the learned Mediator on 14.07.2015 for amicable settlement of the dispute. The parties present today in the Court have assured the Court that they will remain present before the learned Mediator on 14.07.2015.
The present appeal has been filed by the appellants/defendants assailing the order dated 25.04.2015 passed by Addl. District Judge No.3, Bikaner, whereby application filed by the plaintiffs/respondents under Order 39 Rule 1 and 2 CPC has been allowed granting temporary injunction, whereby the defendants/appellants have been restrained from using the suit property for running their business in the name and style of M/s Chandratan Heeralal, and from selling or alienating the same.(Downloaded on 03/10/2024 at 09:52:08 PM)
[2024:RJ-JD:38140] (18 of 23) [CMA-913/2015] Yesterday. this Court in SBCMA No.913/2015-Dev Prakash & Anr. Vs. Smt. Indra & Ors., has already stayed the operation of the order dated 25.04.2015 passed by the court below whereby the learned trial court had restrained the defendants/appellants from working in the business firm M/s Chandratan Heeralal and the suit property was directed to be handed over to Receiver, Sh. Brij Ratan Vyas, Advocate; and allowed the defendants to carry on their business.
Having heard both the parties, who are present in person today it is directed that the aforesaid interim order passed in CMA No.913/2015 would apply to the present case also. The next date of present case is also fixed on 07.09.2015 along with that case and both the CMA(s) be tagged. The parties may also appear before the learned trained Mediator on 14.07.2015 and the parties, who are present in person, have assured the Court that they will try their level best to resolve the entire dispute between them. The family members of the late Sh. Pradhu Dayal, appear to be in destitute condition as the married daughter of Sh. Prabhu Dayal, Ms. Bindu, also suffered a matrimonial dispute and is presently residing with her mother in the suit premises, which is in their possession and living in the same property will not be disturbed by the appellants/defendants and the learned Mediator/this Court would consider either payment of lump sum amount to the respondents/plaintiffs or monthly annuity.
Learned Mediator may make efforts for amicable settlement of the dispute between the parties. The parties may appear before the learned Mediator on 14.07.2015. Put up on 07.09.2015 along-with SBCMA No.913/2015- Dev Prakash & Anr. Vs. Smt. Indra & Ors. in the category of part- heard cases."
32. Thereafter, a coordinate bench of this court vide order dated 10.02.2016, modified the earlier interim orders dated 28.05.2015 (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (19 of 23) [CMA-913/2015] and 29.05.2015 passed in the instant appeals and ordered the court auction of the firm property and the same is reproduced hereunder:
"1. After prolonged hearing at interim order stage today and on earlier occasions of these two appeals against the order dated 25.04.2015 passed by the learned Additional District Judge No.3, Bikaner appointing the Receiver, Mr. Brijratan Vyas, Advocate over the suit property in question, namely a house admeasuring 29 feet x 17 feet = 505 square feet (approximately) in the main area of Bikaner, and in the present suit filed by the plaintiffs-respondents for dissolution and rendition of accounts, in respect of the Partnership Firm, M/s Chandratan Heeralal, which according to the plaintiff- respondents stood dissolved upon the death of one of the partners, Prabhudayal on 30.05.2014, and thereafter, the business of polishing of gold and silver jewellery is being carried on by the other partner, Dev Prakash with a third person, one Mr. Rameshwar, this Court is of the considered opinion that the interim order passed by this Court earlier on 28.05.2015 and on 29.05.2015 in the connected S.B.Civil Misc. Appeal No.958/2012 - Dev Prakash & Anr.Vs. Smt.Indra & Ors., when the parties had appeared in personon account of lawyers' strike on 29.05.2015, the said interim orders deserve to be modified and the suit property, namely, the aforesaid house situated on 505 square feet of land in LuharonKa Mohalla, Naya Kuan, Bikaner deserves to be put to court auction to ascertain and realize its current fair market value. Since the parties to the present dispute are also engaged in another litigation in a separate partition suit, for which, S.B. Civil First Appeal No.209/2003- Multanchand Vs. Jhanwarlal & Ors. is also pending in this Court, involving the aforesaid suit property also and the (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (20 of 23) [CMA-913/2015] appointment of Receiver may unnecessarily put the suit property in a disuse.
2. Accordingly, the learned District Judge, Bikaner is directed to form a Committee of two judicial officers under him,as may be deemed appropriate by him to hold a court auction of the aforesaid suit property under this order within a period of one month from today. To meet the incidental expenses for holding the said process of court auction, both the sides are directed to deposit Rs.20,000/- (Rupees Twenty Thousand only) each with the learned District Judge, Bikaner within one week from today, for which a separate account may be maintained. 3.After holding the court auction and realization of the1/4th of the highest bid on the spot on the same day, a report of the said court auction may be sent to this Court for final approval of the auction/sale in favour of the highest bidder and further directions for realization of the remaining 3/4th amount from the auction purchaser and distribution thereof......."
33. However, the order dated 10.02.2016 passed in the instant appeals by a coordinate bench of this court was challenged before the Hon'ble Supreme Court in S.L.P. (C) No. 8783-84 of 2016(which was preferred by the appellants herein), wherein the Hon'ble Supreme Court vide order dated 01.05.2017 set aside the order dated 10.02.2016 and directed this Court to finally decide the instant appeals expeditiously on merits. The operative portion of the order passed by the Hon'ble Supreme Court reads as under:
"15. ....The same is set-aside. The High Court would decide the appeals on their own merits as expeditiously as possible. We make it clear that the observations made hereinabove are wholly in the context of the issue that arose in the present proceedings before this Court and the (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (21 of 23) [CMA-913/2015] High Court would answer the appeals without being in any way influenced thereby."
34. This court finally heard these appeals and found that the dispute between the appellants(defendant no.1 and 2) and the respondents(the legal heirs of deceased partner) has to be finally resolved in the main suit pending before the learned trial court and until then the firm property has to be preserved and thus it is to be examined by this court whether the preservation of such property during the pendency of the suit requires appointment of receiver and grant of temporary injunction or whether the same can be achieved by passing a status quo order and directing the trial court to expeditiously decide the suit on merits.
35. This court finds that the learned trial court has appointed the receiver so as to protect the relief at the interim stage. The appointment of receiver has been justified by the learned Trial Court by giving its own reasons but without realizing that appointment of receiver could lead to collapse of the firm or can cause diminishing returns impacting the adjudicatory rights of both the parties.
36. The dispute pertains to the firm (M/s Chandratan Heeralal), which was a partnership firm between the deceased partner (Prabhudayal) and appellant no. 1 (Dev Prakash) and the partnership deed dated 15.08.1995 is part of the record. The partnership deed does not indicate that the firm was in existence before 15.08.1995 and the same also does not reflect that the partnership was established on the basis of the ancestral property. The immovable property was part of the firm's property and it was (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (22 of 23) [CMA-913/2015] not the case of the parties that the firm was using its property for any other purposes.
37. It was necessary for the trial court to resolve the dispute in terms that it was a firm property with an additional factor of one of the parties claiming that given property includes ancestral property, requires adjudication by the trial court as to how to determine the final rights in such context. It is, therefore, necessary to maintain status quo regarding the firm property and thus the learned trial court could have passed the order for maintaining the status quo, however, the direction for appointment of Receiver in the given circumstances appears to be a harsh order.
38. This court also found that it is an undisputed fact that on 30.05.2014, one of the partners, Prabhu Dayal expired and as per Section 42 of the Partnership Act, 1932 the firm got dissolved. Therefore, the rendition of accounts was to be made and one of the partners may not be in a position to run the firm as a sole partner, Thus, this court is of the view that after the firm got dissolved the rights and liabilities have to be determined and accordingly, the distribution of assets could be done between the parties.
39. This court finds that until the learned trial court in the main suit decides the rights arising out of the firm property dispute between the parties, it shall be in the best interest that the firm property is maintained as it is.
40. It is known jurisprudence that appointment of the Receiver is a harsh remedy and in the given circumstances, as made out, (Downloaded on 03/10/2024 at 09:52:08 PM) [2024:RJ-JD:38140] (23 of 23) [CMA-913/2015] until the dispute is decided finally, a minimum intervention for keeping the subject matter of the relief in status quo position would be suffice to protect the rights of the parties.
41. Even if the property of the firm was to be divided, then also, an interim order maintaining status quo would be suffice to balance the equity. The matter has remained pending for adjudication for nine years and the order of status quo already operating would be sufficient to protect the final relief, which would be granted by the learned trial court at the time of passing the decree.
42. In the interest of justice, the order is interfered with only to the extent of appointment of receiver and the same is set aside and it is substituted by an order that the parties shall maintain status quo regarding the property in question and they shall be bound not to sell the property but are allowed to remain in the manner in which it is running as on today while not putting the property to any kind of loss so that whenever the exercise of evidence is complete and final decree is passed, the same can be executed upon the running property, which is the dispute in question. The appeals are, accordingly, partly allowed.
DR. NUPUR BHATI),J 38-39-/devesh/-
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