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2012 DIGILAW 831 (CAL)

Puspendu Bikash Sahu v. Dilip Kumar Basak

2012-09-05

PRASENJIT MANDAL

body2012
JUDGMENT Prasenjit Mandal, J. 1. Challenge is to the Order No.17 dated June 16, 2011 passed by the learned Civil Judge (Senior Division), 9th Court, Alipore in Title Suit No.3546 of 2010 thereby granting leave to the plaintiffs to implead the Receiver as defendant in the suit consequently amendment sought for was also allowed. Being aggrieved, the defendants have preferred this application. 2. The plaintiffs/opposite parties herein instituted a suit being Title Suit No.3546 of 2010 for a decree for partition and other reliefs in respect of the suit properties as described in the schedule to the plaint. The petitioners entered an appearance and thereafter, they filed an application for dismissal of the said suit on the ground of its maintainability that another suit for partition and accounts in respect of the several properties including the suit properties of this suit being Title Suit No.15 of 2007 had already been field by the plaintiff No.2/opposite party No.2 herein. It is also contended by the defendants that one Sri Pradip Pal, an advocate was appointed as Receiver in respect of the ‘A’ schedule property described in the schedule to the plaint and such ‘A’ schedule property contains the suit properties of the instant suit. Since a Receiver had been appointed in respect of the suit properties, the present plaintiffs have no right to institute another suit for partition over the same property along with other properties. Thereafter, the plaintiffs filed two applications one for impleading the learned Receiver as a proforma defendant and another application for amendment of the plaint in view of such facts. By the impugned order, both the applications have been allowed. Being aggrieved, this application has been preferred against the impugned order by the defendants. 3. Now, the question is whether the impugned order should be sustained. 4. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, I find that one Pradip Kumar Basak instituted a suit being Title Suit No.15 of 2007 for partition and accounts before the learned Civil Judge, Senior Division, 9th Court, Alipore and the said suit contains a property measuring 2.5 cottah of land together with structure thereon under the Municipal Premises No.23F, Panchanantala Road under Police Station -Lake, Kolkata-700029. In that suit, along with other prayers, a prayer for appointment of a Receiver was sought for and accordingly, one Pradip Pal was appointed a Receiver in respect of the ‘A’ schedule property to the plaint of the Title Suit No.15 of 2007. The learned Receiver is still functioning in the said suit. 5. In the subsequent suit, the plaintiff of the earlier suit, namely, Sri Pradip Kumar Basak has been arrayed as plaintiff No.2 and as such, the plaintiff of the earlier suit along with other plaintiffs had filed the subsequent suit being Title Suit No.2546 of 2010 praying also for partition, permanent injunction and other reliefs and this subsequent suit lays down the property to be partitioned bearing No.23F (subsequently renumbered as 23/O, 23P, 23/Q and 23R) Panchanantala Road, Police Station -Lake, Kolkata-700029. In the subsequent suit, the plaintiffs have prayed for a decree of partition and permanent injunction along with other reliefs just like the reliefs sought for in the earlier suit No.15 of 2007. 6. Under the circumstances, the prayer for hearing on maintainability of the suit was sought for by the defendants/petitioners and the learned Trial Judge has observed that the question of maintainability shall be taken up for hearing on a subsequent day. Now, we are concerned with the appointment of Receiver matter as a party in the subsequent suit. 7. The above facts are not in dispute. Thus, it reveals that one Mr. Pradip Pal was appointed a Receiver in the earlier suit and the learned Receiver had taken charge of the suit properties described in the plaint of the earlier suit. As soon as a Receiver had been appointed by the Court in respect of a disputed property, such Receiver became an Officer of the Court and he was to discharge the function of the Court as per direction of the Court, i.e., as per writ issued to him showing appointment and further directions as may be issued by the learned Trial Judge subsequent to the issuance of the writ. He is under the complete control of the Court and he is, therefore, to take suitable actions in respect of the suit properties as per directions contained in the writ and also as per directions issued to him by the appointing Court from time to time. 8. He is under the complete control of the Court and he is, therefore, to take suitable actions in respect of the suit properties as per directions contained in the writ and also as per directions issued to him by the appointing Court from time to time. 8. It is surprising to note that in the subsequent suit, i.e., Title Suit No.3546 of 2010, when an application for impleadment of the learned Receiver was sought for as a proforma defendant, the learned Court has allowed the said prayer for impleadment and in consequence, allowed the prayer for amendment of the plaint by simply observing that the Receiver so appointed, being an officer of the Court, did not have higher right than that of a party to the suit. 9. In the instant case, the learned Trial Judge has observed that no relief has been sought for against the Receiver and in fact, the plaintiffs have no allegations against the Receiver and as such, the present plaintiffs having better right than that of the Receiver can exercise their right by impleading Receiver as a party to the suit. The plaintiffs may assert their right at the time of trial and that there is no good reason to refuse their prayer. Accordingly, the learned Trial Judge has held that leave to sue should be granted. Such reasons, I hold, are totally misconceived and according to the procedures followed by the Courts in view of several decisions passed by different Courts with regard to the appointment, function and discharge of the duties of a Receiver, the impugned order cannot be supported. 10. The decision of Banwarilal Agarwalla v. Sudhamoy Basu reported in 59 CWN 481 clearly lays down that the rule requiring leave of the Court to sue a Receiver is an ancient rule based, not on any statutory authority but on reasons of public policy. For all practical purposes, the Rule has become a part of the law of the land. Its application is not limited to suits, strictly so called, but also extends to other legal proceedings. 11. When the Court appoints a Receiver over a particular property, it is the Court which really takes charge of the same. For all practical purposes, the Rule has become a part of the law of the land. Its application is not limited to suits, strictly so called, but also extends to other legal proceedings. 11. When the Court appoints a Receiver over a particular property, it is the Court which really takes charge of the same. It is only proper, therefore – and indeed, it is imperative for the maintenance of the dignity of the Courts and respect for the judiciary, so essential for the stable administration, -that the property or any rights therein should not be allowed to be affected or interfered with, without the leave of the appointing Court and the persons desiring to take any step which might affect the said property or any rights therein, should obtain that Court’s leave in that behalf. It seems, therefore, that, on principle, the Rule should have a wide application and as a proceeding for standardisation of rent in resect of a premises may well affect the income or the payment to be made for the use and occupation of a disputed property and may thus conceivably affect the said property or to be more precise, the rights and liabilities of the parties in respect thereof in the matter of rent, the rule should also be applicable to such a proceeding. 12. On principle and also as a matter of law, the rule will equally apply to proceedings before judicial and quasi-judicial tribunals having some, though not all, the trappings of a Court of law strictly so called. 13. This decision based on several earlier decisions is followed in respect of powers, duties, functions and obligations of a Receiver and as such, Courts in dealing with the matter of a Receiver are guided by the principles enunciated therein. Therefore, in view of the decision of Banwarilal Agarwalla (supra), the parties seeking to suit a Receiver is required to obtain a leave from the Court which appointed the Receiver in respect of the suit properties. In the instant suit, the appointment of a Receiver having been made in Title Suit No.15 of 2007, the permission as sought for by the plaintiffs in the Title Suit No.3546 of 2010 is not proper and the learned Trial Judge should not have entertained such prayer in the subsequent suit for granting permission. In the instant suit, the appointment of a Receiver having been made in Title Suit No.15 of 2007, the permission as sought for by the plaintiffs in the Title Suit No.3546 of 2010 is not proper and the learned Trial Judge should not have entertained such prayer in the subsequent suit for granting permission. Accordingly, the permission as sought for to sue a Receiver as proforma defendant and in consequence, amendment of the plaint as sought for should not have been granted by the learned Trial Judge. 14. The learned Trial Judge should have directed the plaintiffs to approach the appointing Court of a Receiver for the purpose. Thus, I find that the learned Trial Judge has committed illegality and materials irregularity in passing the impugned order and such order cannot be supported at all. The said applications should have been rejected. So far as maintainability point is concerned, since the said application was not disposed of by the learned Trial Judge, I refrain myself for making any comment on that matter. 15. The application for amendment is very much relevant and so, if the application for appointment of Receiver is rejected, automatically the application for amendment of the plaint falls through. The question whether the proposed amendment, if allowed, would change the nature and character of the suit becomes immaterial and this application for amendment is very much related to impleadment of a Receiver. Accordingly, this application for amendment of the plaint should have also been rejected by the learned Trial Judge. 16. In that view of the matter, I am of the opinion that the impugned order cannot be sustained. The application succeeds and is, therefore allowed. 17. The impugned order is hereby set aside. 18. Both the applications for appointment of a Receiver and amendment of the plaint stand rejected. 19. Considering the circumstances, there will be no order as to costs.