DAS v. PARUATHAMMA — 1985 DIGILAW 6 (KER)

Judgment :- 1. The suit has been instituted by the plaintiff claiming to be an indigent person. The 4th defendant is the appellant. The dispute relates to the ownership and possession of the bus KRE. 43. The appellant challenges the order of the Subordinate Judge of Parur in I. A. No. 827 of 1984 allowing the plaintiff's application to appoint her as the receiver of the bus. 2. It is the common case that the registered owner of the bus is one M. V. Jacob who purchased it on hire purchase for Rs. 1,40,000/-. He is still the registered owner, although he transferred the bus on 2-2-1981 to the 3rd defendant (Omana Kuttan) for a sum of Rs. 94,5001- (see Ext. A5). (The parties seem to have acted on the assumption that the transfer is virtually a sale, and have viewed the subsequent transactions also as contracts of sale. It is in that sense that we shall refer to these transactions). The 3rd defendant sold the bus to the plaintiff as per Ext. A4 dated 13-10-1981 for a sum of Rs. 1,20,000/-. The registration certificate (still in the name of M. V. Jacob) and other papers were also handed over to the plaintiff. The dispute relates to the subsequent facts. 3. According to the 4th defendant (the appellant) the plaintiff sold the bus to the 2nd defendant, V. V. Jose, as per Ext. B9 dated 3-2-1982 for a sum of Rs 82,000/-. Thereafter the 2nd defendant sold the bus to the 4th defendant 'the appellant) for a sum of Rs 95,000/-. This sale is said to be evidenced by Ext. A8 dated 11-8-1982 and attested by the plaintiff's husband himself. 4. The version of the plaintiff as regards the sale to the 2nd defendant is not identical. This will emerge from a criminal complaint filed by her on 10-3-1982 as C. C. No 160 of 1982 before the First Class Judicial Magistrate, Perumbavoor, against defendants 1 and 2. Her definite case in that criminal complaint was that she authorised the first accused (1st defendant herein) to sell the bus, but the bus was sold by him to the 2nd defendant for a consideration which was less than the stipulated price. She complained that defendants 1 and 2 were guilty of a criminal breach of trust punishable under S.406 read with S.34 of the Indian Penal Code. 5. She complained that defendants 1 and 2 were guilty of a criminal breach of trust punishable under S.406 read with S.34 of the Indian Penal Code. 5. On 12-3-1982 the bus was seized on the motion of the plaintiff by the Circle Inspector of Police, Perumbavoor from the possession of the 2nd defendant while it was parked at the bus stand. Thereupon the 2nd defendant moved the learned Magistrate on 13-3-1982 for interim custody of the bus: By Ext. A10 dated 16-3-1982 his request was granted. The 2nd defendant then filed Crl. M.C No. 335 of 1982 before this Court. Allowing that petition, Chandrasekhara Menon, J. pointed out: "What appears from the complaint is that the. first accused (1st defendant) was authorised to sell the vehicle and be sold the vehicle to the second accused (2nd defendant) for a lesser consideration." He observed that the dispute involved in the plaintiff's private complaint concerned the ownership of the bus which was a matter that could more appropriately be decided by a civil court and for that purpose recourse to a criminal court was an abuse of the process of the court. So stating the learned judge quashed the proceedings in C. C. No. 160 of 1982 as far as the 2nd defendant was concerned (see Ext. B3 judgment dated 14-9-1982). Notwithstanding that observation, the plaintiff did not think it necessary to institute proceedings in the civil court. . 6. On 5-10-1982 the learned Magistrate discharged the first defendant for non-prosecution by the plaintiff. That order of the Magistrate was challenged by the plaintiff before this Court in Crl. R.P. No. 521 of 1983. This Court dismissed the petition on 22-9-1983 Even then the plaintiff did not move the civil court. 7. In the meantime, that is on 12-8-1982, the 2nd defendant sold the bus to the 4th defendant (the appellant) for a sum of Rs. 95,000/-(see Ext. A8). The 4th defendant bad been in possession of the bus subsequent to the quashing of the proceedings in C.C No. 160 of 1982. 8. Notwithstanding the fate of the earlier criminal proceedings, the plaintiff filed on 10-10-1983 a fresh complaint (C C. No. 660 of 1983) before the learned Magistrate against defendants 1 to 4 and 5 others alleging offences under S.418, 424 and 468 read with S.34 of the Indian Penal Code. 8. Notwithstanding the fate of the earlier criminal proceedings, the plaintiff filed on 10-10-1983 a fresh complaint (C C. No. 660 of 1983) before the learned Magistrate against defendants 1 to 4 and 5 others alleging offences under S.418, 424 and 468 read with S.34 of the Indian Penal Code. On 13-10-1983 the bus was seized on the motion of the plaintiff from the custody of the 4th defendant: On 14-10-1983 the 4th defendant and the plaintiff applied for interim custody of the bus On 18-10-1983 the plaintiff's application was dismissed by the learned Magistrate and the 4th defendant's application was allowed on his executing security, The bus was accordingly released to the 4th defendant. On 23-11-1983. the plaintiff filed a review petition before the learned Magistrate. On 23-11-1983 a warrant of seizure was issued without notice to the 4th defendant and the bus was thereupon seized from his custody. On 24-11-1983 the 4th defendant filed a petition before the learned Magistrate praying that the bus be released to him subject to such additional conditions as the court might impose. On 26-11-1983 the learned Magistrate passed Ext. A9 order cancelling the kychit, executed by the 4th defendant and releasing the bus to the plaintiff. 9. Thereupon the 4th defendant filed Crl. M. C. No. 785 of 1983 before this Court. Disposing of that case, Bhat, J. observed in his order dated 10-1-1984 that the complaint of the plaintiff in C. C. No. 660 of 1983 was substantially the same as her previous complaint in C.C. No. 160 of 1982 which was quashed by this Court in Crl. M.C. No. 335 of 1982. The learned judge pointed out that the criminal case was unsustainable particularly because the matter in dispute was of a civil nature. Accordingly be quashed the entire proceedings in C. C. No. 660 of 1983. This is what the learned judge observed: "In the result the entire proceedings in C.C. 660 of 1983 are quashed. Consequently the bus involved in the case will have to be returned to the 4th accused (4th defendant herein)" The learned judge further observed that it was open to the plaintiff, if so advised, to approach a civil court for appropriate reliefs. Consequently the bus involved in the case will have to be returned to the 4th accused (4th defendant herein)" The learned judge further observed that it was open to the plaintiff, if so advised, to approach a civil court for appropriate reliefs. The effect of Bhat, J.'s order was that the entire proceedings in C. C. No. 660 of 1983 stood quashed and the bus was directed to be returned to the 4th defendant. 10. Thereupon on 18-1-1984 the 4th defendant filed Crl. M.P. No. 148 of 1984 before the learned Magistrate for the release of the bus to him in terms of the order of Bhat, J. in Crl. M. C. No. 785 of 1983. Instead of approaching the civil court, the plaintiff filed Crl M. P. No. 149 of 1984 before the learned Magistrate praying for interim custody of the bus. We are told that she submitted to the Magistrate that she would again move the High Court. 11. The plaintiff thus fought hard and well, represented as she was by experienced counsel, but this Court twice found that the criminal proceedings were misconceived and that her remedy had to be sought in a civil court. These orders were final and conclusive as far as this Court was concerned. But the plaintiff was not satisfied. She was apparently not willing to accept the finality of these orders. She wanted an order to compel the Magistrate to go on with the criminal case, notwithstanding the order of Bhat, J. Yet she was not prepared to approach the Supreme Court for such relief, even though, assisted as she was until then by eminent counsel, she knew, or ought to have known, that that was the right thing to do if she was determined to continue with the prosecution. 12. On 13-1-1984 the plaintiff took a curious step, which she probably viewed as a short circuit, and which appears to us as a shocking behaviour on the part of a litigant. She wrote a letter to the learned Ag. Chief Justice of this Court. It is a narrative of all the battles royal she fought and lost. It contains the details of the entire proceedings before the learned Magistrate, and also before this Court in Crl. M.C. Nos. 335 of 1982 and 785 of 1983. She wrote a letter to the learned Ag. Chief Justice of this Court. It is a narrative of all the battles royal she fought and lost. It contains the details of the entire proceedings before the learned Magistrate, and also before this Court in Crl. M.C. Nos. 335 of 1982 and 785 of 1983. 13.Referring to the two criminal cases and the orders of this Court quashing those proceedings, she says: (emphasis supplied) 14. Her complaint in substance is that, while the two criminal cases were in progress, those proceedings were quashed by this Court even before her evidence was let in or her case fully argued. She was directed to a civil court, although defendants 1, 2 and 4 had no assets of their own. She would only be put to more trouble by any civil action. In truth this was a case of cheating. This Court should take necessary steps to prevent the bus being handed over to the 4th defendant. The plaintiff was not in a position to engage lawyers or approach the higher court. She therefore requested the learned Ag. Chief Justice to issue a direction to the learned Magistrate to continue with the proceedings in C.C. No. 660 of 1983 and take a final decision on the private complaint. 15. In effect she requested the learned Ag. Chief Justice to stay the operation of the order of Bhat, J. in Crl. M.C. No. 735 of 1983 so as to allow the Magistrate to go on with the proceeding in C. C. No. 660 of 1983. That was precisely what Bhat, J. had quashed. The Magistrate was no longer competent to go on with it, except for the purpose of releasing the bus to the 4th defendant, as directed by the learned judge. The order of Bhat, J. was final and conclusive as far as this Court was concerned, and the only competent authority to which she could appeal for a stay of the operation of that order was the Supreme Court itself She knew or ought to have known, well assisted by counsel as she was until then, that her remedy in the circumstances was either to appeal to the Supreme Court, or. as clearly indicated in the order of Bhat, J., to approach the competent civil court to obtain proper relief. as clearly indicated in the order of Bhat, J., to approach the competent civil court to obtain proper relief. Knowingly, consciously and deliberately she refused to approach the civil court or go in appeal to the Supreme Court as she herself stated in hey letter to the learned Ag. Chief Justice. She requested him to direct the Magistrate to do the very thing which Bhat, J. had prohibited the Magistrate from doing. 16. It is, in our view, most reprehensible that a litigant should circumvent the normal procedure and directly approach a judge about matters pending in courts and seek reliefs. Any such direct approach will compromise the image of the court and undermine its dignity and prestige thereby endangering the rule of law. itself. The cardinal rule that justice must not only be done, but must seem to be done requires that judges are not approached on the merits of pending cases otherwise than in accordance with the procedure established by law. 17. We are, of course, not unmindful of those extremely exceptional cases, such as a detenu or a bonded labourer or a person in illegal custody and the like, the categories of which, though rare, are never closed where life and liberty are in danger and the hapless victim is in such state of deprivation physical or financial as to be incapable of moving this Court by recourse to normal procedure. In such cases of grave danger to life and liberty, the arm of the law is long enough to extend to him the protection of this Court on the basis of a mere communication either from him or anyone else. (Such communication must, of course, be addressed to the Registrar of this Court and not directly to any Judge.) These must be the rarest of the rare cases. Such exceptional cases apart, it will be highly improper and objectionable for a litigant like the plaintiff, neither without the recourses nor without the wits, to make a direct approach, in defence of her property, to a judge of this Court or any other court. Such exceptional cases apart, it will be highly improper and objectionable for a litigant like the plaintiff, neither without the recourses nor without the wits, to make a direct approach, in defence of her property, to a judge of this Court or any other court. Any such easy approach will result in inequity and waste of the precious time of the court at the expense of the other litigants who come to the court in accordance with the normal procedure, and will lead to confusion and conflicting orders, much to the embarassment of this Court itself and to the predicament and dismay of the lower courts. We have expatiated on this only because of the growing tendency of direct approach by means of letters which, if unchecked, will put the machinery of justice out of gear, weaken the public confidence in the due administration of justice, and thus imperil the very foundation of our democratic system of Government. 18. The plaintiff's letter to the learned Ag. Chief Justice was, in our view, most improper and probably bordering on contempt. We do not, however, hold this against the plaintiff, in so far as the merits of this case are concerned, because it was at the very outset condoned by this Court by allowing the letter to be numbered as OP. No. 411 of 1984. A Division Bench, presided over by the learned Ag. Chief Justice, issued notice on that "letter-petition" and granted an ex-parte stay in the following words: "There will be an interim stay of further proceedings in Crl. M P Nos. 148 and 149 of 1984 pending before the judicial 1st Class Magistrate's Court, Perumbavoor. A copy of the order may be communicated to the judicial 1st Class Magistrate, Perumbavoor forthwith" The Division Bench thus stayed the proceedings in Crl. M. P. No. 148 of 1984 which is the petition filed by the 4th defendant praying for the release of the bus to him as directed by Bhat, J. The 4th defendant therefore failed to get the bus notwithstanding the final order of Bhat, J. in Crl. M. C. No. 785 of 1983. 19. On 3-4-1984, the plaintiff finally decided to institute proceedings in the civil court. She filed in the Subordinate Judge's Court at Parur I. A. No. 828 of 1984 in OP. (Pauper) No. 12 of 1984 seeking permission to institute the suit in forma pauperis. M. C. No. 785 of 1983. 19. On 3-4-1984, the plaintiff finally decided to institute proceedings in the civil court. She filed in the Subordinate Judge's Court at Parur I. A. No. 828 of 1984 in OP. (Pauper) No. 12 of 1984 seeking permission to institute the suit in forma pauperis. That application, we are told, is still pending. Along with that application and the plaint, the plaintiff also filed I. A. No. 827 of 1984 to appoint her as the receiver of the bus, and I. A. No. 830 of 1984 for an injunction to restrain the 4th defendant from taking custody of the bus. On 5-4-1984 an ex-parte injunction was granted by the learned judge. 20. On 10-4-1984 when the "letter-petition" (OP. No. 411 of 1984) came on for hearing, the plaintiff submitted to this Court that she did not wish to press the Petition in view of her civil suit. On that submission this Court ordered: "Now that the civil court is seized of the matter, we do not think that any further order from this Court is necessary. Accordingly, the OP. is closed." 21. On 9-7-1984, the plaintiff, we are told, submitted to the trial court that she did not wish to press her application for injunction (T. A. No. 830 of 1984) if she would be appointed as the receiver of the bus. That application was accordingly dismissed. By order dated 18-7-1984 the learned judge, after hearing the parties, allowed I. A. No.4527 of 1984 and appointed the plaintiff as the receiver of the bus. It is this order which is now challenged in this Appeal. 22. The court has the discretion to appoint a receiver where it is just and convenient to do so. The court must exercise its discretion reasonably and objectively by taking into account all the circumstances of the case and the need to meet the ends of justice by preserving the property and protecting the rights of all the parties. A receiver will not be appointed at the instance of a person until the court is satisfied that prima facie he has a strong case and an excellent chance of succeeding in the suit. A receiver will not be appointed at the instance of a person until the court is satisfied that prima facie he has a strong case and an excellent chance of succeeding in the suit. The court will be slow to deprive a person of his de facto possession unless it is satisfied that the property is exposed to danger and loss and the person in possession has obtained it through fraud or force. "The high prerogative act of taking property out of the hands of one and putting it in pound under the order of the judge ought not to be taken except to prevent manifest wrong imminently impending": Crawford v. Rose, 39 Ga 44 (quoted in Krtshnaswamy v. Thangavelu, AIR. 1955 Mad. 430, 435). The conduct of the party seeking the appointment of the receiver is a relevant consideration in the exercise of this discretion. He who comes to equity must come with clean hands. As stated by Atkinson, J. in Dozier v. Logon,101 Ga. 173: "The appointment of a receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the creditors is exposed to mainfest peril." (quoted in AIR. 1955 Mad. 430, 435). 23. These principles must be borne in mind before a receiver is appointed. The dispute between the plaintiff and the defendants concerns ownership and possession. The definite case of the plaintiff in C. C. No. 160 of 1982, as observed by Chandrasekhara Menon, J., was that she authorised the first defendant to sell the vehicle, but the first defendant sold it for a consideration lower than the stipulated price. That was clear admission on the part of the plaintiff which "though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous: Narayan v. V.Gopal. AIR. 1960 SC. 100; Bharat Singh v. Bhagirathi, AIR. 1966 SC. 405; and, Thiru John v. Returning Officer, AIR. 1977 SC. 1724. Though the plaintiff shifted her stand in the subsequent proceedings and contended that the first defendant was not authorised to sell the vehicle, her admission in C.C. No. 160 of 1982 is binding upon her until it is successfully proved to be erroneous. 1966 SC. 405; and, Thiru John v. Returning Officer, AIR. 1977 SC. 1724. Though the plaintiff shifted her stand in the subsequent proceedings and contended that the first defendant was not authorised to sell the vehicle, her admission in C.C. No. 160 of 1982 is binding upon her until it is successfully proved to be erroneous. Prima facie therefore she lost whatever right she had in the bus when the first defendant, prima facie having authority to sell,sold the bus to second defendant, the albeit for a consideration lower than the price stipulated by the plaintiff. Whatever claim she may still have against the first defendant for damages, she lost all her rights in the bus to the 2nd defendant, assuming that the buyer acted in good faith and without notice of any defect in the 1st defendant's title. Prima facie therefore the second defendant was competent to sell the bus at the relevant time. The 4th defendant having subsequently purchased the bus from the second defendant was at all material times lawfully in possession of the vehicle until he was deprived of the same by the order of the Magistrate in proceedings which were finally quashed by this Court. 24. When Bhat, J. directed the release of the bus to the 4th defendant, he once again became entitled to be in possession of the same. That direction of this Court was final and conclusive unless set aside by the Supreme Court. Since no appeal was filed and the order of Bhat, J. having become final, the only court which could restrain the 4th defendant from taking possession of the bus as per the order of Bhat, J. was the civil court by appropriate proceedings in that behalf. That it was open to the plaintiff to approach the civil court for such relief was abundantly made clear by Bhat, J. himself in his order dated 10-1-1984. The plaintiff did not institute a suit until 3-4-1984. It was only on 5-4-1984 that she obtained an injunction against the 4th defendant. That it was open to the plaintiff to approach the civil court for such relief was abundantly made clear by Bhat, J. himself in his order dated 10-1-1984. The plaintiff did not institute a suit until 3-4-1984. It was only on 5-4-1984 that she obtained an injunction against the 4th defendant. On the other hand, the 4th defendant moved the learned Magistrate as early as 18-1-1984 for the release of the bus in terms of the order of Bhat, J. In other words, at all material times prior to 5-4-1984, when the civil court granted the injunction, the 4th defendant was entitled to retake the possession of the bus as prayed for by him in Crl. M P. No. 148 of 1984 on the strength of Bhat, J.'s order. What ought to have been done in terms of that order is deemed to have been done. The 4th defendant was therefore in law and equity deemed to be in possession at all materia] times until 5-4-1984 when he was restrained by the civil court by an ex-parte order of injunction and subsequently on 18-7-1984 when the plaintiff's application for injunction was dismissed and her application for appointing herself as the receiver was allowed. This shows that the 4th defendant who was in de jure possession was dispossessed by the impugned order. 25. Prima facie the plaintiff is no longer the owner of the bus. This is the only conclusion that can possibly be drawn from her admission and it is binding upon her until it is proved to be erroneous. The burden is upon her to show that the admission made by her in the earlier proceedings was wrong and that she continued to be the owner of the vehicle in question. Until and unless she has discharged that burden, she has prima facie no right in the bus and is therefore not entitled to be in possession of it. Although it is open to her to disprove her earlier admission and establish a new case in the civil suit, she does not at this stage qualify to be appointed as the receiver by dispossessing the 4th defendant who is prima facie entitled to possession. 26. Although it is open to her to disprove her earlier admission and establish a new case in the civil suit, she does not at this stage qualify to be appointed as the receiver by dispossessing the 4th defendant who is prima facie entitled to possession. 26. Apart from all this, the earlier conduct of the plaintiff in twice approaching the criminal court, which this Court characterised as an abuse of the process of the court, disentitled her to be the receiver. She fought battles royal. She was represented by eminent counsel here and in the Magistrate's court. She apparently had the necessary resources. She knew full well, particularly after the order of Chandrasekhara Menon, J., that the matter in dispute related to the ownership and possession of property in regard to which recourse to the criminal court was an abuse of the process of the court. That the civil court was the only forum to vindicate her right in respect of the bus was or ought to have been explicitly clear to her when Bhat, J. reiterated what had been already stated by Chandrasekhara Menon, J. Yet she took nearly 3 months to institute a civil suit. Her conduct in this regards, in our view, disentitles her to act as a receiver. On the other hand, for the reasons we have already indicated, the 4th defendant (the appellant) is the right person to act as receiver if the hus has to be in custodia legis. 27. In the ordinary circumstances we should have thought that there was no need to appoint a receiver and that the 4th defendant ought to be given possession of the bus in his own right. But he took a positive risk when he purchased the bus before the conclusion of the criminal proceedings in which defendants 1 and 2 were accused and the matter related to the ownership and possession of the bus. Moreover the plaintiff apprehends that the 4th defendant would remove the bus out of the jurisdiction of the trial court. The 2nd defendant also now questions the right of the 4th defendant. Nevertheless, the 4th defendant is, as stated earlier, the person who was in de jure possession of the bus at the relevant time. Accordingly, he is the person who is entitled to be in possession of the bus, but, in the circumstances of this case, only as a receiver. 28. Nevertheless, the 4th defendant is, as stated earlier, the person who was in de jure possession of the bus at the relevant time. Accordingly, he is the person who is entitled to be in possession of the bus, but, in the circumstances of this case, only as a receiver. 28. Accordingly, we set aside the impugned order in I. A. No. 827 of 1984, and we appoint the 4th defendant (the appellant) as the receiver of the bus KRE 43, subject to such terms and conditions as to security and other matters as the learned Trial Judge may wish to impose. The Trial Judge shall, after hearing the parties, make such orders as he deems fit in this regard and commit the bus to the possession, custody and management of the 4th defendant as receiver. The appeal is allowed in the above terms. The plaintiff shall pay the 4th defendant his costs in this Appeal.