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2013 DIGILAW 293 (HP)

VARINDER KUMAR v. KAMLA SETHI

2013-04-10

SURINDER SINGH

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JUDGEMENT SURINDER SINGH, J. 1. THE challenge in the present appeal is to the order dated 15.01.2013, passed by the learned District Judge, in pending Civil Suit No.5 of 2012, inter se the parties filed by the appellant seeking injunction against his forcible dispossession, from 'Hotel Kalinga' situated in Manali on Kanyal Ranghari road, wherein an application, under Order 40 Rule 1 read with Section 151 of the Code of Civil Procedure for the appointment of receiver, moved by the defendant was allowed by the learned District Judge, Kullu. 2. IN short, the facts giving rise to the present appeal can be stated thus. The respondent herein, vide agreement dated 15.05.2007, leased out the above hotel to the appellant for a period of five years commencing from 16.05.2007 to 15.05.2012 on an annual lease amount of '.25 lacs vide written agreement/deed, whereas the claim of the appellant is that the lease-deed was for ten years and not for five years. Further alleged in the suit that he had renovated the hotel and spent an amount of '.11 lacs, apprehending the forcible dispossession by the respondent he prayed for injunction. It is informed that the respondent-owner had also filed the suit for possession which is subjudice. The respondent offered strong resistance to the injunction suit on the ground that the lease was for a period of five years and on its expiry on 16.05.2012 appellant has no legal and contractual right to remain in possession. Since the suit would take time in its disposal, thus prayed for the appointment of receiver to take over the suit property as the appellant is illegally grabbing the income and apprehended damage to Hotel property so that it is properly managed, accounts are maintained and other income of the hotel is also accounted for, so that it could be later released to the person found entitled. 3. THE appellant resisted the appointment of the receiver mainly on the ground that period of lease was ten years and not five years. 3. THE appellant resisted the appointment of the receiver mainly on the ground that period of lease was ten years and not five years. The copy of the lease-deed appended with the reply to the interim application whereby the execution of the impugned order is sought to be stayed, clearly indicates that duration of the lease was only for a period of five years commencing from 16.05.2007 to 15.05.2012, but according to learned Counsel for the appellant there has been second lease-deed which was in the possession of the respondent, which fact stands denied by the respondent and the learned Counsel for the respondent vehemently argued that this is a new case sought to be pleaded at this stage, whereas no such averment was ever made in the plaint by the appellant. Though, in his suit, the appellant stated that he had paid the rent upto 2013 to the respondent and renovated 19 rooms in the hotel and spent about '.11 lacs is denied, whereas the learned Counsel for the defendant-respondent referred to Clause 10 of the lease-deed which clearly stipulates that no such addition or alteration was to be done without the written consent of the respondent and there is nothing on record to show that any such permission in writing was ever sought by the appellant. The learned District Judge in his order clearly observed that the appellant had failed to place on record any document showing that the lease was for ten years. 4. The learned District Judge in his order clearly observed that the appellant had failed to place on record any document showing that the lease was for ten years. 4. LEGALLY, a receiver may be appointed by the Court when appears to it just and convenient and for that five principles upon which a Court can appoint a receiver are: (i) It is a matter resting in the discretion of the Court for the purpose of protecting the rights of all parties and the subject-matter; (ii) the Court should not appoint a receiver except upon proof by the party that prima facie he has an excellent chance of success in the suit; (iii) not only the applicant must 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 rights he must be reasonably clear and free from doubt; (iv) an order for appointment of receiver will not be made where it has the effect of depriving non-applicant of a de facto possession since that might cause irreparable wrong, the position however may be different if the property is shown to be in the enjoyment of none; and (v) the Court should look to the conduct of the party who makes the application who must come to the Court with clean hands. In the instant case, the respondent has proved a prima facie case in his favour whereas there is no document showing that the lease was ten years and not for five years as alleged by the appellant. The applicant apprehends that after deriving the income of the Hotel the appellant may flee away or cause extensive damage to the suit property and has demanded immediate action to put the suit property under the control of the Court through receiver. The appellant is also earning profit by holding over lease property and it also appears that the appellant has not approached the Court with clean hands, as no document showing that the lease- deed was for ten years has been filed. Even during the course of arguments an opportunity was given to the appellant to substantiate his claim by any document, but he failed to do so. Therefore, for the aforesaid reasons, I do not find it a fit case even for admission and interference in the impugned order. Even during the course of arguments an opportunity was given to the appellant to substantiate his claim by any document, but he failed to do so. Therefore, for the aforesaid reasons, I do not find it a fit case even for admission and interference in the impugned order. As such, the appeal is dismissed in limine, so also the pending application. 5. THE learned trial Court is hereby directed to expedite the proceedings pending before it in the suit. 6. HOWEVER, it is made clear that any observation or expression made hereinabove is strictly for deciding the present appeal arising out of the impugned order and it shall not affect the merit of the case in any manner.