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1960 DIGILAW 57 (RAJ)

Bhenru v. Sonia

1960-03-01

J.N.KUNZRU, SHYAMLAL

body1960
The circumstances that give rise to this revision may briefly be stated thus :— Soniya brought a suit against Bhairun and others in the court of the Assistant Collector, Jaipur, on 9.8.55 for grant of a permanent injunction to restrain the defendants from interfering with the possession of the plaintiff over the land in dispute. Simultaneously with the plaint, an application was presented for grant of a temporary injunction on the ground that the defendants were threatening to dispossess the plaintiff by taking the law in their own hands. A notice was issued to the defendants to show cause against the application and an interim injunction in the meanwhile was issued against them on 8.9.55. The trial court refused to extend the interim stay till the disposal of the suit on the ground that the defendants had been bound down under Sec. 107 Cr.P.C. to keep the peace. On 11.12.55, the plaintiff put up a fresh application for issue of a temporary injunction. After hearing the parties and examining the revenue record that was produced before it, the trial court came to the conclusion that Bhairun defendant was in possession of the land, that the plaintiff had failed to prove that the standing crop was his and was in danger of being wasted. On these findings, the application was rejected. On 15th Feb. 1956 the plaintiff applied for appointment of a receiver. The trial court, by its order dated 30.4.57, held that the plaintiff was in possession of the land at the time of the institution of the suit, that the cultivation by the defendants in Svts. 2012 and 2013 was doubtful, that the destruction of the carrot crop suggested that the destroyed crop was of the plaintiff as the defendant would not have destroyed his own crop and that the "surrender of the subject of the mortgage" was not proved. The trial court, therefore, directed the appointment of a receiver under O. 40, R.1 C.P.C., read with sec. 212 of the Rajasthan Tenancy Act. The defendants went up in appeal against this order before the Additional Commissioner, Jaipur, but met with no success. Hence this revision. 2. We have heard the learned counsel for the parties and have examined the record as well. 212 of the Rajasthan Tenancy Act. The defendants went up in appeal against this order before the Additional Commissioner, Jaipur, but met with no success. Hence this revision. 2. We have heard the learned counsel for the parties and have examined the record as well. It has been held by the Board in a number of cases that the grant of a temporary injunction is a discretionary matter and when the lower courts have exercised their discretion in a particular manner it should not be interfered with unless some provisions of law have been disregarded by them. We shall confine our attention to this aspect of the case alone. 3. It has been argued by the applicants counsel that the law on the subject is contained in sec. 212 of the Rajasthan Tenancy Act and that the provisions contained in O. 40 R.1 C.P.C. arc inapplicable to cases under the Rajasthan Tenancy Act. It has been replied by the learned counsel for the opposite party that the provisions of O. 39, R. 1 are not inconsistent with the provisions of Sec. 212 of the Rajasthan Tenancy Act, but are supplementary as they provide for cases not covered by that section. And hence they can be allowed to govern the case. O. 39 C.P.C. deals with temporary injunctions and interlocutory orders. R. 1 of this order lays down that where in a suit it is proved by an affidavit or otherwise that any property is in danger of being wasted, damaged or alienated by any party to the suit, or that the defendant threatens or intends to remove or dispose of his property with a view to defraud his creditors the court may grant a temporary injunction to restrain such action. These provisions with a little change in phraseology have been incorporated in Sec. 212(1) of the Rajasthan Tenancy Act. A material addition is, however, to be found in this sub-section as the last clause runs thus J—"the Court may grant a temporary injunction and, if necessary, appoint a receiver." Sub-sec. (2), however, lays down that any person against whom an injunction has been granted, or in respect of whose property a receiver has been appointed under sub-sec. (1) may offer cash security to compensate the opposite party. There is an apparent conflict between these two sub-sections. (2), however, lays down that any person against whom an injunction has been granted, or in respect of whose property a receiver has been appointed under sub-sec. (1) may offer cash security to compensate the opposite party. There is an apparent conflict between these two sub-sections. From a perusal of sub-sec.(l), it would appear that a receiver may be appointed only where a temporary injunction has been granted. Sub-sec. (2) however, envisages the possibility of the appointment of a receiver even without the grant of a temporary injunction as the preposition or has been used in between the two contingencies. To resolve this conflict it would be desirable to hold that the law confers a wide discretion upon the court which may be exercised either by appointing a receiver or by granting temporary injunction or by doing both if necessary. 4. This brings us to the question as to the circumstances under which a receiver may be appointed. O. 40 dealing with the appointment of receivers lays down that a receiver may be appointed where it appears to the court to be just and convenient. The real question is whether the provision can be resorted to by revenue courts while trying cases under the Rajasthan Tenancy Act. Sec. 208(a) of the Rajasthan Tenancy Act lays down that excepting those provisions of the Civil Procedure Code which are inconsistent with the provision of the Rajasthan Tenancy Act all other provisions shall apply to suits and proceedings under the Rajasthan Tenancy Act. Sec. 212 of the Act lays down the conditions for the appointment of a receiver, cases where it is "just and convenient" to appoint a receiver have not been included within this section. To our mind therefore, the provisions of the Civil Procedure Code on the point would be inconsistent with the provisions of the Rajasthan Tenancy Act. If the legislature intended to confer a discretion upon the revenue courts similar to that conferred upon the civil courts in such a matter, there would have been no need to provide for the appointment of a receiver in sub-cl. (1) of sec. 212 of the Rajasthan Tenancy Act. Any other interpretation would render this provision negatory. This point was examined by the Board in 1957 RLW, 19=1956 R.R.D. 273 as well. It was held by both the Division Benches that sec. (1) of sec. 212 of the Rajasthan Tenancy Act. Any other interpretation would render this provision negatory. This point was examined by the Board in 1957 RLW, 19=1956 R.R.D. 273 as well. It was held by both the Division Benches that sec. 212 of the Rajasthan Tenancy Act contained the entire law on the subject and appointment of a receiver should be regulated by these provisions without any reference to the provisions of Civil Procedure Code on the point. The reason to our mind is not far to seek. The Civil Courts have to deal with various forms of property and there may arise cases where the property may not be in danger of being wasted, damaged or alienated and yet it may be "just and convenient" to appoint a receiver e.g., cases where rights to corporation or trust property are in dispute. To safeguard the interests of minor persons interested in that property it may be necessary to appoint a receiver. It may also be necessary to use this discretion in matters of public utility or liquidation proceedings. The revenue courts, on the contrary, have with their jurisdiction agricultural tenancies only. In such cases, the legislature intended to allow the courts to appoint a receiver only where the property is in danger of being wasted, damaged or alienated. This view of the matter should therefore, govern the present case. 5. At one state, it was held by the trial Court that the defendants were in possession of the land in dispute. The plaintiff has nowhere alleged specifically that he was deprived of his possession after the institution of the suit. In fact, no amendment of the plaint has yet been sought by him on the point. The courts cannot assume a case for a party which has not at all been advanced by it. The conditions which can justify the appointment of a receiver have riot been at all proved by the plaintiff in the case. The lower courts have, therefore, acted with material irregularity in ordering the appointment of a receiver. We, therefore, allow this revision, set aside the order of the lower courts and direct that the plaintiffs application for appointment of a receiver shall stand rejected.