Bombay High Court
Aboobakar Abdulrehman & Co. vs Shreeji Properties on 31 July, 1992
Equivalent citations: AIR1993BOM265, 1992(3)BOMCR402, AIR 1993 BOMBAY 265, 1994 BOMRC 33, (1993) 2 RENCR 460, (1993) 2 CURCC 144, (1992) 3 BOM CR 402
ORDER
1. On 28th October, 1987, this Court directed the Court Receiver to hand over the property back to the defendants. The Court Receiver wants to comply with that order but he finds that there are some occupants in certain portions of the property who have come in after the Court Receiver took charge of the property. The Court Receiver therefore by this Report prays for an order "(a) That the present unauthorised occupants of the suit property a list whereof with the portions in occupation has been shown on the site plan Exhibit 'E' hereto be ordered to hand over vacant possession of the said respective portions to the Court Receiver. (b) Any other order that this Hon'ble Court may deem fit to give in the matter."
2. The facts necessary to be mentioned are these : The piaintiffs in the suit were mortgagees of the suit property. The defendants were mortgagors. This suit was filed in 1934 for enforcing the mortgage. On 9th July 1935 a preliminary mortgage decree was passed. At that time the Court Receiver, High Court, Bombay, was appointed as Receiver of the suit property (mortgaged property). Accordingly the Court Receiver took possession of the suit property on 20th October 1936. Thereafter on 1st July 1937 a decree absolute for sale of the suit property was passed and at the same time the Court Receiver was ordered to be continued in possession of the suit property till the completion of the sale of the suit property by the Commissioner, High Court, Bombay. There was a chequered history of the case thereafter, but, for the purpose of the matter before me, it would be sufficient to state that the property was not sold and the parties to the suit arrived at some settlement pursuant to which an order dated 28th October, 1987 was passed. It appears that the right of redemption of the mortgagors (defendants) has been assigned to the applicants M/s. Shreeji Properties by registered Deed of Conveyance dated 26th December, 1985. The substance of the order dated 29th October, 1987 reads as follows :
"(a) Name of defendants Nos. 1 and 3 be deleted.
(b) By consent the name of the applicants be brought on record of the suit in place and in stead of defendants 3 to 5.
(c) The plaintiffs to carry out the necessary amendments during the course of one week.
(d) By Consent the Preliminary Mortgage Decree dated 9th July, 1935 and the decree absolute for sale herein dated 1st July, 1937 passed in the above suit be marked as fully satisfied.
(e) By Consent the Court Receiver, High Court, Bombay, appointed by the said preliminary mortgage decree and order dated 9th July, 1935 is hereby discharged without passing Accounts. The Court Receiver is directed to hand over possession of the suit property along with all papers, documents, deeds filed relating to the suit property with him and the balance amount if any, in his hands to the applicants. If any amount is due and owing to the Court Receiver, the applicants undertake to pay the same to the Court Receiver.
(f) No order as to costs. "
Thereafter the abovesaid applicants by their Advocate's letter dated 29th October, 1988 addressed to the Court Receiver asked the Court Receiver to hand over vacant possession of the suit property to them. They also clarified in the letter that when the Court Receiver took possession of the suit property the same was vacant and as such it should not be burdened with the illegal occupants inducted during the tenure of the Court Receiver and they should be put in possession of the suit property in the same condition in which it was taken by the Court Receiver. The Court Receiver however found that a major portion of the suit property was in possession of two parties viz. Vishnu Saw Mills and Shri Hardeo Mathuradas Nissodia who were in occupation of portions marked 16 and 17 respectively on the plan which is annexed as Exhibit 'E' to the Court Receiver's Report. The Court Receiver also found that in the rear right hand corner there were 4 godowns out of which three were in occupation of tenant M/s. Suwalal Anandilal and one in occupation of Harjivan Bhimji. We further found that in the front portion of the suit property there were kutchha and pakka small structures in occupation of illegal occupants and the members of the family of the Court Receiver's Agent Mr. K. N. Jain. For those reasons the Court Receiver found difficulty in complying with the order dated 26th October, 1987 and hence made the present Report dated 6th February, 1991 asking for orders as stated earlier. The Court Receiver had stated in his report that all the occupants of the property came to occupy the property after the Court Receiver took possession and charge of the property and "since the Court Receiver is now directed to hand over the property back to the defendants it is submitted that necessary orders for eviction of the said illegal occupants may be passed to enable the Court Receiver to hand over the said property to the defendants in the same condition in which it was taken charge of."
3. Various occupants have filed affidavits and opposed the Court Receiver's Report. It is not disputed that they have all come on the property after the Court Receiver took possession. They however claim that they were granted leases or tenancies of their respective portions by the Court Receiver and therefore they are now protected tenants under C.P. and Berar Letting of Houses and Rent Control Order, 1949.
4. We may proceed on the basis that the Court Receiver purported to grant leases or tenancies as is claimed by the occupants. We will further assume that, except for the legal question about the right of the Court Receiver to make the grants, the occupants would be protected under the C.P. and Berar Letting of Houses and Rent Control Order, 1949.
5. After going through the various decisions cited before me, the principle of law that emerges may be stated thus : During the time the property is in custody/charge of the court
-- in the hands of the Receiver on behalf of the Court -- no rights can be created in the property which would defeat the ends of justice and incapacitate the Court from giving relief to the one who is entitled to it according to the decree or final order of the Court. This principle of law has been clearly enunciated in the case of Arumugha Gounder v. Ardhanand Mudaliar . It is further observed in this decision -- "So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to protect the property for the benefit of the ultimate successful party. It is further stated
-- "Not only actus curiae nominee gravabit (an act of the Court shall prejudice no man) but also the doctrine of the property being in custodia legis coupled with public policy in rendition of proper justice and conservance of power therefor would be valid and effective reasons for our view that the intention of the Act is not to extend the protection to the tenant of the Receiver and thus defeat justice eventually. Actus legis nomini est damogus, that is to say an act in law shall prejudice no man, is another aspect of public policy. Our view derives also strength from the fact that an act of the Receiver done on behalf of the Court is done pendente lite and anyone who gets possession through such act can only do so subject to the directions and orders of Court. That is implied from the nature and legal position relating to the appointment and powers as well as the management by the Receiver". It is true that in the case just cited, it was the Tamil Nadu Cultivating Tenants Protection Act. That was under consideration while in our case it is the C.P. and Berar Letting of Houses and Rent Control Order, 1949. However, it makes no difference to the force of the observations made in the abovesaid decision. Moreover, in the abovesaid decision, it was observed -- "It is, therefore, possible on the basis of the literal application of the provisions of the Act to the facts, to hold that the tenant of the Receiver is a cultivating tenant within the meaning of the inclusive definition of the term and entitled to statutory protection." In spite of this, it is because of the principle enunciated above it was held in that case that the Receiver's act in letting out the land in his possession could not have effect so as to defeat the ends of justice and incapacitate the Court from giving relief to the one who was entitled to it according to the decree of the Court. The abovesaid Full Bench Decision of the Madras High Court has also been referred to by the Supreme Court in the case of Krishna Kumar Khemka v. Grindlays Bank P.L.C., .
6. In , there were two tenancies, namely, one to Grindlays which tenancy had commenced since before the Receiver took charge and the other to Tatas which tenancy came into effect after the Receiver took charge, and in that connection it is observed with reference to Grindlay's tenancy -- "There is some force in the submission of the learned counsel for the appellant that the lease in favour of Tatas amounts to transfer but the same cannot be said to Grindlays. Therefore the question of evicting them summarily on this ground does not arise." The decision of the Madras High Court (supra) was cited before the Supreme Court and the Supreme Court did not differ from the views expressed therein. Referring to the Madras Full Bench decision the Supreme Court observed -- "The Full Bench however took the view that the receiver appointed by the Court acts as an officer of the Court and he cannot create a lease which takes the pending matter beyond the purview of the Court and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court. In our view the principle laid down, by the Full Bench does not apply to the facts in the instant case at least to the case of Grindlays as in our view no new tenancy is created in their favour."
7. It may be stated that it is true, depending upon the case, that a Receiver may be empowered by the Court to sell the property. If that is so, the Court may empower the Receiver to create leases of the property and even create such leases as may be protected under local acts applicable to such leases. However, all this is done by the Court for the purpose of meeting ends of justice and to aid the Court for granting final relief in the proceedings before it. The Court will not do anything which would defeat the ends of justice or which would incapacitate the Court from giving relief to the one who is entitled to it according to the decree of the Court. It is therefore essential to see in each case as to what is the nature of the suit and in particular, what is the subject matter of the suit. Then only it can be ascertained as to whether any particular act of the Court Receiver would have the effect of defeating the ends of justice or would have the effect of incapacitating the Court from giving relief according to the decree of the Court, and if the act of the Court Receiver tends to have such effect then that act would be illegal and the Court would disregard the rights purportedly created under that act and that act will not prevent the Court from rendering justice or from getting its decree executed. Where a Receiver, after taking charge of the property, creates a lease then it is necessary to ascertain whether the purported lease is legal and proper, and for this purpose, as observed above, it is necessary to take into consideration the scope and subject matter of the suit or there may be other orders passed by the Court in the suit which would make the Receiver's act in creating the lease or tenancy illegal and if this is so then the Court, as I have stated earlier, will not recognise such a tenancy as coming in the way of summary eviction of the occupants. In , so far as the case of Tatas was concerned, the Supreme Court observed -- "Now coming to the case of Tatas we agree with the High Court that it is a new tenancy". The Supreme Court further found that a new tenancy was created despite the fact that prior to the appointment of the Receiver the Court had passed an order of injunction restraining the owner of the property from creating such leases or tenancies. After considering these two aspects of the matter, the Supreme Court observed -- "If we apply the above principles to the case of Tatas the tenancy created in their favour by the receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the Court appointing the receiver. Therefore the tenancy created in favour of the Tatas was in breach of the order of the Court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted." In this case the Tatas were claiming protection under West Bengal Tenancy Premises Act.
8. Mr. Kapadia cited a decision in the case of Om Prakash Garg v. Ganga Sahai, Reported in . In that case the mortgagee had purported to create a lease and it was observed that -- "the lease was not an act of prudent management on the part of the mortgagee Narain Prasad within the meaning of S. 76(a) of the Transfer of Property Act, 1882 and therefore the alleged lease could not subsist after the extinction of the mortgage by the passing of the final decree for redemption and thus the appellant could not take advantage of the Act as there was no subsisting lease in his favour". In our case also, as pointed out above, the subject matter of the suit is a mortgage. What the Receiver can do or cannot do must be decided after taking this fact into consideration.
9. Mr. Sathe relied upon the decision in the case of Abdul Aziz Abdul Nabib v. Syed Zulfikar Husan, . It was held there that a lessee from a Court Receiver gets the status of a tenant under S. 2(32) of the Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958. There is nothing stated there which is contrary to any of my observations made above.
10. It was urged by Mr. Manudhane that the defendants may proceed under Order 21, Rule 97 and no summary eviction can be ordered on the Court Receiver's Report. Now, in the first place, even in the Supreme Court Case cited above, the Court ordered summary eviction of Tatas on Receiver's report, Further what the defendant (or the assignee of the rights of redemption) wants is possession of the property back from the Receiver. He is not seeking any execution of any decree. It is the duty of the Court to return the possession of the property to him in the same condition in which the Receiver took it from him. The provisions of Order 21, Rule 97 do not come into play here.
11. Mr. Sathe relied upon the decision in the case of Nanka v. Govt. of Rajasthan, reported in AIR 1951 Rajasthan 153. He urged that in such a case there should not be order or summary eviction but the eviction could only be ordered through a Regular Suit. As I have stated more than once above, it is the scope, nature and subject matter of the suit that are required to be taken into consideration by the Court while deciding whether summary eviction is called for or not. The report on which reliance is placed by Mr. Sathe does not show the nature of the case. Further, if any observations in AIR 1951 Raj 152 are contrary to what has been held and ordered by the Supreme Court in (supra) then these observations can no longer be considered as good law.
12. Mr. Sathe relied upon the decision in the case of Hiralal Patni v. Loonkaran Sethiya, . According to him the Supreme Court has held there that summary eviction can be granted only where there is an express provision in the lease conferring right of re-entry. Now, in the case relied upon by Mr. Sathe, there was such an express condition that the appellant should redeliver the property to the Receiver on the expiry of the lease and the term of the lease had expired. It is true that on this circumstance the Supreme Court held that the Court was legally competent to confer a power oh the Receiver under Order 40, Rule 1(1)(d) to recover the property from the appellant. This however does not mean that where there are illegal occupants they cannot be evicted by a summary order by the Court directing the Receiver to evict the occupants.
13. Under the circumstances, prayer (a) of the Court Receiver's Report is granted and on the occupants failing to hand over vacant possession of the respective portions to the Court Receiver, the Court Receiver to evict the occupants with the help of Police, if necessary. So also prayer (c) of the Court Receiver's Report is granted.
Mr. Manudhane and Mr. Sathe pray for stay of the abovesaid order for a period of 12 weeks. The abovesaid order is stayed for a period of 6 weeks from today.
Issue of certified copy is expedited.
Order accordingly.