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2008 DIGILAW 929 (CAL)

Ram Chandra Behera v. Sambhu Nath Behara

2008-09-17

BISWANATH SOMADDER

body2008
JUDGMENT:- (1.) Pursuant to direction given by this Court on 15th September, 2008 service was effected by the lerned advocate for the petitioner upon the respondent No. 2, who also appears befora this Court. The affidavit of service, filed in Court today be kept on record. (2.) Heard the learned advocates appearing for the parties. (3.) This is an application under Article 227 of the Constitution of India directed against an order, being Order NO. 12 dated 5th July, 2008 passed by the learned District Judge-in-charge, Alipore South 24- Parganas in Miscellaneous Appeal No. 321 of 2008. (4.) By the order impugned the learned Court below, in connection with the appeal preferred by the plaintiff against the order of the learned trial Court refusing to grant an ad interim Order for appointment of a receiver, allowed the same, ex parte, with the following observations : "On perusal of the said application and on perusal of the entire record with meticulous care, I think that the instant application for appointment of Receiver should not be disposed of without hearing the other Respondents. But for the interest of both the parties and also for avoiding future complication of the parties, I think nobody would be prejudiced, if a Special Officer is appointed to collect the rents from the tenant/occupiers of the suit property. In these circumstances, after exerting my inherent power, I am appointing a Special Officer as follows." (5.) The petitioner In the Instant application has approached this Court against this ex parte order passed by the learned Court below specifically contending that in the facts and circumstances of the Instant case the learned Court below could not have appointed a receiver/special officer and the reasons given by-the learned Court below are not at all tenable in law. The petitioner in the instant application is the defendant No. 1 in the suit pending before the learned trial Court. (6.) The learned advocate appearing on behalf of the petitioner drawing attention of this Court to the pleadings of the plaint submits that the suit instituted by the plaintiff, being the appellant before the learned Court below, was essentially for account and share of the profits of a dissolved partnership firm. (6.) The learned advocate appearing on behalf of the petitioner drawing attention of this Court to the pleadings of the plaint submits that the suit instituted by the plaintiff, being the appellant before the learned Court below, was essentially for account and share of the profits of a dissolved partnership firm. In this regard, he refers to the principal prayers in the plaint, which, for convenience, are set out hereinbefore :- "(a) Leave under Order 2, Rule 2 of the Code of Civil Procedure; (b) Decree for winding up of the dissolved Partnership Firm Behera and Sons; (c) Preliminary "decree for distribution of assets including goodwill and accounts in respect of the dissolved firm Behera and Sons, since 1st April, 2005 onwards) (d) An accounts commissioner for taking all accounts of income and of the undistributed assets and basing , on his report final decree for accounts be passed; (e) An order towards appointment of Receiver." (7.) Learned advocate for the petitioner has also referred specifically to the pleadings made by the plaintiff appearing in paragraph 16 of the plaint, wherein it has been inter alia stated that the parties have dissolved their firm with effect from 31 st March, 2005. The learned advocate submits that on the face of it, the suit is barred by the laws of limitation and invites this Courts attention to Article 5 of the Schedule to the Limitation Act, 1963. Relying on Article 5, he submits that the period of limitation for the purpose of institution of a suit of this nature is three years from the date of dissolution of the partnership firm. (8.) He further submits that the learned trial Court had refused to pass an ex parte order in favour of the plaintiff for appointment of receiver in an application filed under Order 40, Rule 1 read with Section 151 of the Code of Civil Procedure and had merely directed issuance of a notice calling upon the defendants to show cause within five days from receipt of the notice as to why the prayer of the plaintiff for appointment of receiver shall not be allowed. He submits that without even waiting for the defendants to enter upon appearance and contest the application for appointment of receiver pending before the learned trial Court, the plaintiff preferred the appeal before the learned District Judge-in-charge, who not only admitted the appeal but went on to pass an exparte order on the plaintiff/appellants application under Order 40, Rule 1 read with Section 151 of the Code of Civil Procedure, being the order impugned. The learned advocate for the petitioner submits that the observation made by the learned Court below, inter alia, to the effect that nobody would be prejudiced if a special officer was appointed cannot be substantiated in law based on the principles that are required to be followed by a Court for the purpose of appointment of a receiver: While referring to a passage from Sr. John Woodroffes Law relating to Receivers, which forms a part of the Tagpre Law Lectures, 1897, he submits that where an appeal attacks the exercise of discretion, before the appellate Court interferes on this ground in favour of the appellant, the latter must satisfy such Court that the discretion had been improperly exercised. Relying further on Sir Woodroff s observations, he submits that the appointment as well as removal of a receiver is also a matter which rests in the sound discretion of the Court. In exercising its discretion, the Court should proceed with caution and be governed by a view of the whole circumstances of the case. A receiver should not be appointed in supersession of a bona fide possessor of property in controversy, unless there is some substantial ground for interference. The power conferred by the Code to appoint a receiver is not to be exercised as a matter of course, and it is not a reason for allowing an application for appointment of a receiver, that it can do no harm to appoint one. (9.) In the facts and circumstances of the instant case and relying on the above observations of Sri Woodroffe, learned advocate for the petitioner submits that this is one such instance where the learned Court below did not take into consideration the laid down principles of law which govern an appointment of a receiver. (9.) In the facts and circumstances of the instant case and relying on the above observations of Sri Woodroffe, learned advocate for the petitioner submits that this is one such instance where the learned Court below did not take into consideration the laid down principles of law which govern an appointment of a receiver. (10.) On the other hand, the learned advocate appearing on behalf of the respondent No. 1, being the plaintiff/appellant submits that the order passed by the learned Court below cannot be said to be an order which does not take into consideration the laid down principles of law for appointment of receiver. He submits that in the facts and circumstances of the instant case the learned Court below was well within its right to pass an ex parte order appointing a special officer, since the learned trial Court had wrongly refused to grant the same and in view of urgency of the matter in was purely a matter of discretion of the learned Court below, which was used properly and in accordance with law. Learned advocate for the respondent No. 1 refers extensively to the pleadings of the plaint, particularly paragraphs 3 and 6 and further submits that the defendant No. 1, being the petitioner herein, while approached by the plaintiff on 29th June, 2008, as stated in paragraph 23 of the plaint, for winding-up of the dissolved partnership, settlement of accounts and partition, had blatantly refused to do so and claimed himself to be the sole and exclusive owner of the properties at Bhadrak, Orissa. The learned advocate for the respondent No. 1 thus submits that on these facts, the learned trial Court ought to have passed an ex parte ad interim order, on refusal whereof his client has preferred the appeal wherein the impugned order was passed, which, according to the learned advocate, in the facts and circumstances of the case is a correct order and ought not to be interfered with. (11.) After considering the submissions made by the learned advocates for the parties and upon perusing the instant application and the order impugned as well as the order passed by the learned trial Court, I am of the view that for the purpose of deciding the instant application the issue what is required to be considered is whether the learned Court below was justified in law in passing an ex parte ad interim order appointing a special officer in the facts and circumstances of the instant case. As it appears from record, the learned trial Court, on an application under Order 40 Rule 1 read with Section 151 of the Code of Civil Procedure presented before it by the plaintiff merely directed issuance of notice calling upon the defendants to show cause within five days from receipt of the notice as to why the prayer of the plaintiff for appointment of receiver should not be allowed. The plaintiff, instead of waiting for even five days, preferred an appeal before the learned District Judge-in-charge on the ground of refusal on the part of the learned trial Court to pass an ex parte ad interim order of appointment of a receiver. (12.) From a plain reading of the order impugned passed by the learned Court below I have not been able to find out even one sentence wherefrom it can be said that the learned Court below considered the grave urgency of the matter, based on which the learned Judge thought it to be prudent that a special officer or a receiver was required to be immediately appointed. On the contrary, what has been held by the learned court below to the effect that nobody would be prejudiced if a special officer is appointed, in my view, is wholly against the well known principles of law, which may be seen from the observations made by Sir John Woodroffe referred earlier. I am of the opinion that the learned Court below did not even apply its mind while passing the order impugned, inasmuch as it failed to take note of a statement of the plaintiff made in paragraph 16 of the plaint that the parties had dissolved their firm with effect from 31st March, 2005. I am of the opinion that the learned Court below did not even apply its mind while passing the order impugned, inasmuch as it failed to take note of a statement of the plaintiff made in paragraph 16 of the plaint that the parties had dissolved their firm with effect from 31st March, 2005. It is therefore, not understandable as to the basis on which the learned Court below formed an opinion that in the facts and circumstances of the instant case it was imperative that an ex parte ad interim order was required to be passed in favour of the plaintiff/appellant appointing a special officer on an application filed before it under the provision of Order 40, Rule 1 read with Section 151 of the Code of Civil Procedure. Without dilating further on this issue I am of the opinion that in the facts and circumstances of the instant case and for reason discussed above the impugned order cannot be sustained in law and the same is also hereby set aside. For the same reasons, the miscellaneous appeal preferred by the respondent No. 1, being the plaintiff, is also liable to be dismissed and is also hereby dismissed. The parties are directed to approach the learned trial Court which shall decide on the fate of the application pending before it under Order 40, Rule 1 of the Code of Civil Procedure, after hearing the parties. The learned trial Court, while hearing out the Application, shall deal with the same strictly on its own merit without being influenced in any manner by any observation made herein or by the learned Court below. Endeavour shall be made by the learned trial Court to dispose of the application as expeditiously as possible, preferably before the ensuing long vacation and for the said purpose the petitioner and the respondent No. 2 are directed to file their written objection within a week from date. 13, Urgent xerox certified copy of this order, if applied for, be supplied to the parties pn priority basis. Order accordingly.