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2011 DIGILAW 128 (RAJ)

Jagmohan Soni v. Kamlesh Kumar

2011-01-18

R.S.CHAUHAN

body2011
JUDGMENT 1. - Aggrieved by the order dated 8-1-2010, passed by the Additional District Judge No.8, Jaipur City, Jaipur, whereby the learned Judge has appointed a receiver for collecting the rent of four shops which were allegedly running in the property in dispute, the defendant-appellant has approached this court. 2. According to plaintiff-respondent No.1, Kamlesh, the property in dispute consists of a haveli, along with four shops and a garage. According to the plaintiff, in 1957, his father, Durga Lal Soni, bought the said property. His father expired on 3-10-1987. Since the property is an ancestral one, the plaintiff claimed that he along with defendant-appellant, and other defendants, inherited the property of his father. He further claimed that he has 1/7th share in the said property. According to him, four shops situated within the haveli have been rented out. However, it is only the appellant who is collecting the entire rent, approximately a sum of Rs. 37,200/-. The plaintiff further claimed that he has a right to 1/7th share of the rented amount so collected by the appellant. Therefore, the plaintiff filed an application for appointment of receiver. 3. On the other hand, it is the case of the defendant appellant that although the property was registered in the name of their father, but, it was actually bought by the funds of the appellant. Therefore, after the death of their father, he is entitled to the entire property and the to the collection of rent. Moreover, according to the appellant none of the four shops were rented out. In fact, they were lying vacant. Even today, the appellant claims that the shops are lying vacant. 4. Mr. J.P.Goyal, the learned counsel for the appellant, has vehemently contended that the remedy of appointing of receiver is the harshest remedy available. Therefore, it should be exercised in the rarest of rare case. Secondly, since the learned trial court has already restrained the appellant from alienating the shops, there is no need to appoint a receiver for collecting the rental amount. In order to buttress his contention, the learned counsel has relied upon the case of Ram Ikwali Singh v. Sheo Pujan Singh, AIR 1997 (Patna) 164 . 5. On the other hand, Mr. Manu Bhargava, the learned counsel for the plaintiff-respondent No.1, has straneously contended that the appointment of receiver is not the harshest remedy. In order to buttress his contention, the learned counsel has relied upon the case of Ram Ikwali Singh v. Sheo Pujan Singh, AIR 1997 (Patna) 164 . 5. On the other hand, Mr. Manu Bhargava, the learned counsel for the plaintiff-respondent No.1, has straneously contended that the appointment of receiver is not the harshest remedy. Moreover, such appointment is not the harshest measure taken by the learned trial court. For, it has merely directed the receiver to collect the rental amount and to deposit the same in the court. According to the learned counsel, such power has to be invoked when a contradictory stand has been taken by the plaintiff, on the one hand, and by the defendant on the other hand. Till the issues are settled, one way or the other, the rental amount has to be collected and has to be protected in the interest of all the parties involved in the case. Moreover, the appellant has approached, neither before this court, nor before the learned trial court, with clean hands, as he has emphatically claimed that the shops were not rented out. However, vide order dated 22-3-2010, this Court had appointed a Commissioner; according to the Commissioner's report the shops were, indeed, rented out. Furthermore, although the appellant had pleaded that one of the shops was rented out for merely Rs. 200/- to Rs. 300/-. But according to Inspection report, the appellant was receiving a rent of Rs. 13,000/- per month from the said shop. Thus, the appellant has approached this Court with unclean hands, therefore, he does not deserve any sympathy from this Court. 6. In rejoinder, Mr. Goyal, has pleaded that in the Inspection report, as mentioned above, there is over-writing over the figure of Rs. 13,000/-. Therefore, the amount is doubtful. Moreover, since presently the shop is no longer rented out, the report looses its significance. 7. Mr. Arvind Soni, the learned counsel for the respondent No.5, has equally contended that under Order 40, Rule 1 C.P.C., the learned trial court was well within its power to appoint a receiver for realization, management, protection, preservation and improvement of the property, collection of the rent and profits thereof, till the title of the property is decided. Considering that rental amount had to be collected, the learned trial court was certainly justified in appointing the receiver. Considering that rental amount had to be collected, the learned trial court was certainly justified in appointing the receiver. In order to buttress his contention, the learned counsel has relied upon the case of S.B. Industries, Freegunj v. United Bank of India, AIR 1978 (Allahabad) 189. 8. Heard learned counsel for the parties and perused the material available on record. 9. Order 40, Rule 1 of the Code of Civil Procedure, reads as under:- "XL. Appointment of receiver (1) Where it appears to the Court to be just and convenient, the Court may by order- (a) appointment a receiver of any property, whether before or after a decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such those powers as the court thinks fit." 10. It is imperative to note that the provision quoted above uses the words "just and convenient". Therefore no universal principle can be laid down that the appointment of receiver is always the harshest remedy. Obviously, the prayer for appointment of receiver would be considered within the peculiar facts of each case. For, the words "just and convenient" is a relative term. What may be 'just and convenient" in one case may turn out to be unjust and inconvenient in another case, depending on the facts and circumstances of the cases. Therefore, this court has to consider whether the appointment of receiver is just and convenient, or not? 11. Undoubtedly, the plaintiff-respondent and the defendant appellant have come up with two stories which are contradictory to each other: the plaintiff-respondent claims the property is to be an ancestral one and thus claims right to the said property after demise of his father. Per contra, the defendant-appellant pleads that the property was in fact constructed out of his own funds, although it was in the name of the father. Hence, he has a right over the property and over the rent so collected. 12. Per contra, the defendant-appellant pleads that the property was in fact constructed out of his own funds, although it was in the name of the father. Hence, he has a right over the property and over the rent so collected. 12. The issue whether the property is ancestral one or constructed out of the income of defendant-appellant? This issue can be decided only after the evidence is led by both the parties. Moreover, the issue whether the plaintiff or the defendant would be entitled to the rent, and fraction of the rent to which they would be entitled to, can equally be decided only after the evidence has been marshelled out during the trial. Presently the only issue before the learned trial court was how to collect the rent, and how to protect it, in the interest of all the parties involved. Therefore, the learned trial court was certainly justified in appointing the receiver and in directing the receiver to collect the entire rent and to deposit the same in the court. Since the rent amount so collected is to be deposited in the court, the rental amount is protected. Therefore, the learned trial court was certainly justified in appointing the receiver. 13. In case, the contention of Mr. Goyal is accepted that the shops are not on rent, even than he cannot be aggrieved by appointment of receiver. For, in case shops are lying vacant, there is nothing for the receiver to do, as no rent is to be collected or to be deposited in the court. Therefore, the order of the learned trial court for appointment of receiver is just and convenient in the present case. Furthermore, the order restraining the appellant from alienating the property may protect the property, but it does not protect the rental amount. Since a court is required to be fair, just and reasonable with both the parties, the learned Judge had no other option but to appoint a receiver and to protect the rental amount. 14. Hence, this appeal is devoid of any merit. It is, hereby, dismissed.Appeal Dismissed. *******