Research › Search › Judgment

Orissa High Court · body

2016 DIGILAW 39 (ORI)

Prafulla Chandra Swain v. Prabhat Kumar Swain

2016-01-19

K.R.MOHAPATRA

body2016
JUDGMENT : K.R. Mohapatra, J. 1. Order dated 09.02.2009 passed by learned 2nd Additional Civil Judge (Senior Division), Cuttack in IA No. 29 of 2005 filed under Order 40 Rule 1 CPC arising out of T.S. No. 22 of 1999 is under challenge in these appeals. 2. One Prafulla Kumar Swain filed T.S. No. 22 of 1999 for partition claiming to be the natural son of Prana Krushna Swain. During pendency of the suit, plaintiff filed CMA No. 63 of 2003 and the defendants 1 to 6 filed CMA No. 24 of 2004 under Order 39 Rules 1 and 2, CPC. After analogous hearing of both the aforesaid interim applications, learned trial Court vide order dated 31.03.2009 directed the parties to maintain status quo over the suit land during pendency of the suit. Subsequently, defendant No.1, namely, Prabhat Kumar Swain, appellant in FAO No.84 of 2009 and respondent No.1 in FAO No.133 of 2009 filed one application under Order 40 Rules 1 and 2, CPC (I.A. No.29 of 2005). He contended therein that one Sri Prana Krushna Swain was the owner of the suit schedule properties. The plaintiff is not the natural born son of said Prana Krushna Swain. He is the son of one Keshab Chandra Rout. However, he has been collecting rent from ‘A’ schedule property, which is a Lodging, namely “Shree Krishna Lodging” situated at Dolamundei, Cuttack and is creating disturbance in the management of the schedule ‘A’ properties. Similarly, other properties are in possession of different persons being let out by the parties to the suit and they are collecting rent from the tenants residing over those properties. Thus, defendant No.1 prayed for appointment of receiver in respect of the suit schedule properties for best management and smooth collection of rent from the tenants residing over the suit schedule properties. The plaintiff and other defendants filed their respective objections. Learned Civil Judge, by his order dated 25.11.2005, dismissed the said application against which FAO No.3 of 2006 was filed by defendant No.1. This Court by order dated 29.02.2008 allowed the FAO, with the following direction. “In the present case, since there are a number of parties in the suit and it is stated that they are in possession of various different properties, it would be proper to quash the order dated 25.11.2005. Hence, the order dated 25.11.2005 passed by the 2nd Addl. Civil Judge (Sr. “In the present case, since there are a number of parties in the suit and it is stated that they are in possession of various different properties, it would be proper to quash the order dated 25.11.2005. Hence, the order dated 25.11.2005 passed by the 2nd Addl. Civil Judge (Sr. Division), Cuttack is quashed and remit back the matter to the said court for reconsideration of the prayer made by the petitioner for appointment of receiver after ascertaining from the parties to the proceeding in respect of Schedule-A property mentioned in the Interim Application. The respective parties are directed to give their evidence in support of their respective possession and thereafter the court below will consider the prayer for appointment of receiver and conditions if any. The entire exercise be completed within a period of eight weeks from the date of receipt of this order.” 3. Pursuant to the aforesaid direction of this Court, learned Civil Judge (Senior Division) recorded evidence of respective parties and by his order dated 09.02.2009, disposed of the I.A. No.29 of 2005 with the following direction:- “Taking the facts and circumstances of the present case into consideration and as there is rival claim of both the parties regarding their possession over the suit properties, I think it just and convenient to appoint a receiver for management of the suit properties. If a third person will be appointed as receiver then there may not be proper maintenance of the suit property and there may be further complicacy in the matter. Hence, I think it proper to appoint one of the parties to the suit who will deposit the highest amount towards the annual income out of the suit property, in Court, as receiver in this case in the interest of justice. Hence, the parties are directed to file their willingness and to inform the amount which they will deposit towards the annual income of the suit property in Court, in case of their appointment as receiver. Put up on 19.02.2009 for filing of option by the parties. Accordingly, the petition is disposed of on contest.” 4. Assailing the same, the plaintiff, namely, Prafulla Chandra Swain preferred FAO No.133 of 2009 and the defendant No.1, namely, Prabhat Kumar Swain filed FAO No.84 of 2009. However, defendant No.1, namely, Prafulla Kumar Swain in course of hearing supported the impugned order and contested FAO No.133 of 2009. Accordingly, the petition is disposed of on contest.” 4. Assailing the same, the plaintiff, namely, Prafulla Chandra Swain preferred FAO No.133 of 2009 and the defendant No.1, namely, Prabhat Kumar Swain filed FAO No.84 of 2009. However, defendant No.1, namely, Prafulla Kumar Swain in course of hearing supported the impugned order and contested FAO No.133 of 2009. Thus, FAO No.133 of 2009 alone is required to be considered. 5. Mr.Bose, learned counsel for the appellant submitted that the purport of order passed in FAO No.3 of 2006 is only for appointment of receiver with regard to schedule ‘A’ properties and not beyond that. However, learned Civil Judge has transgressed his jurisdiction considering appointment of receiver in respect of the entire suit schedule properties, i.e., schedule ‘A’ to ‘E’ of the I.A. He submitted that there was dispute only with regard to possession of Shree Krishna Lodging. In view of the specific direction of this Court in FAO No.3 of 2006, learned Civil Judge should not have proceeded to appoint receiver in respect of the properties more fully described in schedule ‘B’ to ‘E’ of the I.A. The family members of the appellant in FAO No.133 of 2009 and respondent No.1 in FAO No.84 of 2009 have been residing over the schedule ‘B’ to ‘E’ properties. The contention of the plaintiff to the effect that those are let out to different tenants is not correct. Thus, he prayed for setting aside the impugned order. 6. Mr.Rath, learned counsel for respondent No.1 (defendant No.1) in FAO No.133 of 2009 submitted that there is nothing in the order passed by this Court in FAO No.3 of 2006 which could be construed as a direction for reconsideration of application for appointment of receiver in respect of schedule ‘A’ property only. On the other hand, this Court in clear terms has directed for reconsideration of the prayer made in the I.A. No.29 of 2005. Defendant No.1 in IA No.29 of 2005 prayed for appointment of receiver in respect of schedule ‘A’ to ‘E’ properties. Thus, the contention of the appellant in FAO No.133 of 2009 is misleading. This Court, while disposing of FAO No.3 of 2006, has directed the learned Trial Court to ascertain possession of the parties in respect of schedule ‘A’ properties as there was scramble for possession in respect of the same. Thus, the contention of the appellant in FAO No.133 of 2009 is misleading. This Court, while disposing of FAO No.3 of 2006, has directed the learned Trial Court to ascertain possession of the parties in respect of schedule ‘A’ properties as there was scramble for possession in respect of the same. In addition to ‘A’ schedule properties, schedule ‘B’ to ‘E’ properties have been let out to different tenants and the parties to the suit are apportioning the rents from said tenants. Thus, learned trial Court has rightly directed for appointment of receiver in respect of schedule of properties of the I.A. 7. Mr.Parija, learned counsel for respondents 2 to 4, 6, 13 and 14 in FAO No.133 of 2009 also supported the stand taken by Mr.Rath. He further submitted that in obedience to the direction of the learned trial Court in the impugned order, the defendant/respondent No.6 (FAO No.133 of 2009) has already shown his willingness by filing the memo giving undertaking to deposit an amount of Rs.5.00 lakh annually towards schedule ‘A’ to ‘E’ properties in the event he is appointed as receiver. Respondent Nos. 2 to 5 (FAO No.133 of 2009) have also filed a memo consenting to the willingness of respondent No.6. Thus, he submitted that when the order has already been given effect to, the same needs no interference. Mr.Parija further contended that learned Trial Court has proceeded in strict adherence of the direction of this Court in FAO No.3 of 2006. He has given ample opportunity to all the parties to adduce their evidence. Parties to the I.A. have also adduced oral as well as documentary evidence in support of their respective cases. Considering the rival contentions of the parties and taking into consideration the evidence on record, learned trial Court at paragraph 6 recorded finding that none of the parties was successful to prove their possession. He further observed that both the parties admitted that the suit properties (schedule ‘A’ to ‘E’) are leased out in favour of different tenants. Thus, he decided to appoint a receiver in respect of scheduled properties and directed the parties to submit their willingness and to inform the amount which they will deposit towards the annual income of the suit properties in the Court in the event they are appointed as receiver. 8. Perused the order dated 29.02.2008 passed in FAO No.3 of 2006. Thus, he decided to appoint a receiver in respect of scheduled properties and directed the parties to submit their willingness and to inform the amount which they will deposit towards the annual income of the suit properties in the Court in the event they are appointed as receiver. 8. Perused the order dated 29.02.2008 passed in FAO No.3 of 2006. This Court, after a threadbare discussion of rival contentions of the respective parties, came to a categorical conclusion and directed for reconsideration of the prayer made by the appellant in FAO No.133 of 2009 for appointment of a receiver after ascertaining from the parties to the proceeding in respect of schedule ‘A’ properties mentioned in the I.A. This Court further directed the respective parties to lead their evidence in respect of their respective possession for reconsideration of the prayer for appointment of receiver. The main controversy of the parties in the I.A. was with regard to the possession in respect of ‘A’ schedule properties. Thus, this Court, while disposing of FAO No.3 of 2006 vide order dated 29.02.2008, directed for ascertainment of possession of the parties in respect of ‘A’ schedule properties. There is no quarrel over the fact that the petition for appointment of receiver was filed in respect of the properties mentioned in schedule ‘A’ to ‘E’ of the said I.A. This Court, while disposing of the FAO No.3 of 2006, has also directed for reconsideration of the prayer made for appointment of receiver. Thus, the contention of Mr.Bose to the effect that the direction was made for appointment of receiver in respect of schedule ‘A’ properties only, is not sustainable. In addition to the above, in course of adjudication of I.A. No.29 of 2005 by the learned Civil Judge, the parties to the suit admitted that the suit properties described in schedule ‘A’ to ‘E’ of the I.A. have been leased out to different tenants. Moreover, the appellant in FAO No.133 of 2009 prayed to appoint him as receiver in respect of the suit properties, i.e., schedule ‘A’ to ‘E’ properties of the I.A. The other contesting respondents in the said FAO also prayed to appoint them as receivers in respect of suit properties. Hon’ble Supreme Court in the case of Kasturi Bai and others Vs. Hon’ble Supreme Court in the case of Kasturi Bai and others Vs. Anguri Chaudhary, reported in AIR 2001 SC 1631 had held that when the suit properties are let out to different tenants and the rent is being collected from them, it would be just and proper to appoint a receiver in respect of the suit properties for the interest of justice. In that view of the matter, I do not find any merit in the contention of Mr. Bose. Accordingly, both the appeals are dismissed being devoid of any merit, but in the circumstances, there is no order as to cost.