Research › Search › Judgment

Madras High Court · body

2000 DIGILAW 505 (MAD)

Mrs. S. Karpagam v. R. Shanmugam

2000-04-28

P.SATHASIVAM

body2000
Judgment : Aggrieved by the order of the learned VII Assistant Judge, City Civil Court, Madras in I.A.No.20477 of 1993 in O.S.No.9587 of 1998 dismissing her injunction application, the appellant has filed the above appeal. The very same person against the order of dismissal of her petition for appointment of Receiver by the very same learned Judge in I.A.No.20478 of 1993 and affirmed by the VII Additional Judge, City Civil Court, Madras in C.M.A.No.34 of 1998, has filed the above revision. 2. The respondent in both the cases is the brother of the appellant/petitioner. The appellant herein filed suit O.S.9587 of 1993 on the file of VII Assistant Judge, City Civil Court, Madras to pass a decree and judgment declaring that she is entitled to share the profits of the suit property equally along with the defendant since 29. 1991, when her father disappeared and was reported to be missing till the division of the suit property by metes and bounds when the time therefor ripes, directing the defendant to account for the profits derived from the suit property from 10. 1991 and also directing the defendant to pay the plaintiffs half share of the profits of the suit property on its ascertainment by this Court. Pending the suit the appellant herein filed I.A.No.20477 of 1993 under O.39, Rules 1 and 2 C.P.C., for an interim injunction restraining the respondent/defendant from collecting the rents from the various tenants occupying the different portions of the suit property. She also filed I.A.No.20478 of 1993 under O.40, Rule 1, C.P.C., for appointment of a receiver to collect the monthly rents payable by the various tenants occupying the different portions of the suit property. The court below, by a separate, order dismissed both the applications. Against the dismissal of I.A.No.20477 of 1993 dated 2. 1994, she preferred the above appeal (C.M.A.No.492 of 1994), before this Court and against the dismissal of I.A.No.20478 of 1993, she preferred C.M.A.No.34 of 1998 before the 7th Additional Judge, City Civil Court, Madras. The order passed in I.A.No.20478 of 1993 has been confirmed by the appellant Judge in C.M.A.No.34 of 1998, hence she preferred C.R.P.No.452 of 1999 before this Court. 3. Heard the learned counsel for the appellant/petitioner and respondent. 4. The order passed in I.A.No.20478 of 1993 has been confirmed by the appellant Judge in C.M.A.No.34 of 1998, hence she preferred C.R.P.No.452 of 1999 before this Court. 3. Heard the learned counsel for the appellant/petitioner and respondent. 4. Mrs.Krishnaveni, learned counsel for the appellant/petitioner, after taking me through the impugned orders, would contend that the court below committed an error in dismissing both the injunction as well as appointment of Receiver applications. On the other hand, Mr.S.V.Jayaraman, learned senior counsel for the respondent, would contend that in the absence of any acceptable material and ground for granting injunction and appointing receiver, the court below is right in dismissing both the applications. 5. I have carefully considered the rival submissions. 6. There is no dispute that the appellant and respondent herein are sister and brother respectively and they are the children of one Ranganatha Mudaliar and Sundarambal. Their mother Sundarambal died in the year 1988 and according to the appellant, the whereabouts of their father is not known from 29. 1991. It is also stated that the suit properties are the self acquired properties of the said Ranganatha Mudaliar and he let out most of the buildings to various tenants. It is also stated that she is residing in one portion of the suit properties. Since the respondent/defendant is collecting rents from all the tenants and she is also entitled to half share in the properties, she prayed for an injunction till the suit is decreed. On the other hand, it is stated by the respondent that their father is still alive, hence the present claim for partition though it is prayed in the form of declaration is not maintainable. It is also stated that it was his father who permitted him to collect rents from his tenants. He also stated that his father executed a Will bequeathing the entire property in his favour and in such a circumstance, he prayed for dismissal of the injunction application. 7. As rightly observed by the court below, both the appellant and respondent admit that their father is alive. Unless it is established that his whereabouts are known for 7 years and he is presumed to be dead, the appellant cannot ask for her share in the suit property. In such a circumstance, the conclusion of the court below that the suit as framed is premature cannot be assailed. Unless it is established that his whereabouts are known for 7 years and he is presumed to be dead, the appellant cannot ask for her share in the suit property. In such a circumstance, the conclusion of the court below that the suit as framed is premature cannot be assailed. Further, the court below is also right in holding that the appellant herein placed required materials to grant injunction. On the other hand, while dismissing the injunction application, the court below has directed the respondent/defendant to issue receipts for rental payments and preserve the counterfoils. It has also directed him to maintain records regarding the rental income. In the light of the safeguards made by the court below and in the absence of any prima facie case, I do not find any valid reason to interfere with the impugned order dismissing her injunction application, accordingly the appeal is liable to be dismissed. 8. In respect of order in I.A.No.20478 of 1993 dismissing her receiver application, the learned trial Judge, after considering the rival contentions has observed that in the petition for stay of receiving rent, this Court (High Court) is already seized of the matter and the right of collection of rent is to be finally decided in the C.M.A. pending before this Court and closed the said petition with a liberty to renew after this Court finally decides in the C.M.A., as regards collection of rent. Aggrieved by the said order, she preferred appeal C.M.A.No.34 of 1998 before the 7th Additional Judge, City Civil Court, Madras. The learned Judge after considering the relevant provision, namely, O.40, Rule 1, C.P.C., as well as the various submissions made by both parties and after holding that there is no need to appoint a Receiver to collect rents from the tenants, dismissed the appeal on 9. 1998. Even before this Court, learned counsel for the petitioner contended that pending disposal of the suit, a receiver may be appointed to collect rents from various tenants. I am unable to accept the said contention for the following reasons. As rightly pointed out by Mr.S.V.Jayaraman, learned senior counsel for the respondent, even in the suit, the petitioner herein/plaintiff therein, has prayed for accounting of the profits derived from the suit property from 10. 1991. I am unable to accept the said contention for the following reasons. As rightly pointed out by Mr.S.V.Jayaraman, learned senior counsel for the respondent, even in the suit, the petitioner herein/plaintiff therein, has prayed for accounting of the profits derived from the suit property from 10. 1991. If that is so, if the plaintiff succeeds in the suit on the basis of the accounts, there may not be any difficulty for her to secure her share. There is no evidence or material to show that the respondent had committed waste or damage to the suit properties. Even though the court has got absolute discretion in the matter of appointment of Receiver, it is settled law that the discretion cannot be exercised in an arbitrary and unreasonable manner. It has to be exercised cautiously, judiciously and according to well established legal principles. It is settled law that the court would not as a rule appoint a Receiver at the instance of a person alleging a mere legal title against any party who is in actual possession of the real estate and disturb his possession. Even if the plaintiff had established a prima facie title to the property in question, still the plaintiff must allege and establish to the satisfaction of the court that but for the appointment of a receiver the rental accounts which is the subject matter of the dispute will be either wasted, damaged or ruined or the amounts will be misappropriated. In the light of the particulars furnished, I am of the view that the petitioner has not made out any prima facie case for exercising discretion in her favour, more particularly, in the light of the relief No.2 made in the plaint. In this regard, it is useful to refer the decision of Ramaswami, J., in the case of Krishnaswamy v. Thangavelu A.I.R. 1955 Mad. 430 wherein the learned Judge formulated five requirements in the matter of appointment of receiver under O.40, Rule 1, C.P.C. The five requirements are as follows: “(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the court. .(2) The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. .(2) The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. .(3) Not only must the plaintiff, show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. .(4) An order appointing a receiver will not be made where it has to effect of depriving a defendant of a de facto possession since that might cause irreparable wrong. It would be different where the property is shown to be in media, that is to say, in the enjoyment of no one. and .(5) The court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.” The petitioner herein has not satisfied or fulfilled any one of the conditions or requirements as pointed out above. Further, 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. Inasmuch as none of the requirements for appointment of receiver is made out, the request of the petitioner is liable to be rejected and both the courts below have rightly dismissed the claim of the petitioner. The principle enunciated by Ramaswamy, J., in Krishnaswamy v. Thangavelu A.I.R. 1955 Mad. 430 has been followed by S.Natarajan, J., in Subbalakshmi Ammal and others v. Rajalakshmi Ammal and others Subbalakshmi Ammal and others v. Rajalakshmi Ammal and others Subbalakshmi Ammal and others v. Rajalakshmi Ammal and others (1988)2 MLJ. 330 . In the light of the above factual position and in view of the legal position referred to above, the revision petition filed by the petitioner is liable to be dismissed. 9. Under these circumstances, I do not find any error or infirmity in the impugned orders; consequently both the appeal and revision fail and accordingly dismissed. No costs. C.M.P.No.2223 of 1999 is also closed. 9. Under these circumstances, I do not find any error or infirmity in the impugned orders; consequently both the appeal and revision fail and accordingly dismissed. No costs. C.M.P.No.2223 of 1999 is also closed. Since the suit is of the year 1993, I hereby direct the trial court to dispose of the same within a period of four months from the date of receipt of a copy of this order.