Patna High Court - Orders
Manoj Kumar Sinha vs Prem Ranjan Kumar Sinha & Ors on 29 July, 2010
IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.513 of 2007
Manoj Kumar Sinha, S/o. Sri Saroj Kumar Sinha, resident of village - Tulsi Pur,
P.O. Niriya - Tulsipur P.S. - Karai Parsurai (Hilsa), District - Nalanda At Present
Mohalla - East Indira Nagar, Road No.1., Near Faujdarai Mandir, Dusadhi Pankri,
P.S. Kankarbagh, District - Patna. ..... Plaintiff / Appellant ... in Person
Versus
1. Sri Prem Ranjan Kumar Sinha, S/o. Sri Saroj Kumar Sinha
....... Defendant ......Respondent No. 1 - Ist Set
2. Sri Saroj Kumar Sinha, S/o. Late Ram Lagan Singh.
3. Smt. Kanti Devi, W/o. Sri Saroj Kumar Sinha.
........ Defendant ..... Respondents - 2nd Set.
All Residents of Village & P.O. Niriya Tulsipur, P.S. Karai Parsurai
(Hilsa), District - Nalanda, At present East Indira Nagar, Road No. 1, (Near
Faujdai Rai Mandir), Dusadhi Pankari, P.O. - & P.S. - Kankarbagh, (Lohia Nagar),
District - Patna.
.... Defendant / Respondent
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08. 29.07.2010Heard learned counsel for the parties.
This miscellaneous appeal is directed against the order dated 17.07.2007 passed by Sri S.A. Kumar, Sub- Judge III, Patna in Partition Suit No. 536 of 2000 by which he has rejected the petition for appointment of Receiver filed on behalf of the plaintiff.
The suit has been filed for defining 1/3rd share of the plaintiff as the plaintiff is two brothers joint with his father. The father, mother and brother are also party to the suit. The joint family property includes the shops under tenancy and the houses as well as lands. The case of the plaintiff is that neither the plaintiff nor the defendant no. 1 and 3 who are father and mother of plaintiff are getting any -2- benefit out of the joint family property.
The written statement has also been filed by defendant no. 2 the brother of plaintiff. The father and mother are supporting the case of the plaintiff. However, the case of the defendant no. 2 in the written statement is that the plaintiff and defendant are separate in mess and business of that joint family property has not been partitioned by meets and bounds.
In the suit, a petition filed under Order XL, Rule 1 Civil Procedure Code for appointment of Receiver on the ground that defendant no. 2 though have got only 1/3rd share but receiving all rent and defendant no. 1 and 3 and the plaintiff is not getting their share in the rent so the appointment of Receiver may be appoint.
However, about the appointment of Receiver when it appears to the Court to be just and convenient the Court made order to appoint a Receiver. However, having regard to the fact that there is no mention that the defendants are destroying the property or alienating the property and hence the mere assertion that defendant no. 2 is not given the share of the plaintiff - appellant and share of defendant no. 1 and 3 -3- in the rent from shop, I do not feel, that the facts and circumstance to be just and convenient to order for appointment of Receiver as appointment of a Receiver may amount extra burden on the parties.
However, the learned lower court earlier after considering the fact has refused to appoint a receiver under the facts and circumstances that the suit is pending since 2000 till 2007 and vide order dated 05.04.2007 he was directed to produce witness i.e. that delay on this part in disposal of suit, I do not find any illegality and irregularity in the impugned order to interfere with.
Learned counsel for the appellant submits that issue has been decided in the case and the evidence of the plaintiff has already been closed, hence the Lower Court is directed to expedite the trial and dispose of the case by running the case day to day basis with strict compliance of Order XVII C.P.C. and dispose of the case without giving unnecessary adjournment preferably within a year and hence with this observation the appeal is dismissed.
Kundan (Gopal Prasad, J.)