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CASE NO.: Appeal (civil) 1466  of  2001

PETITIONER: KASTURI BAI & ORS.

       Vs.

RESPONDENT: ANGURI CHAUDHARY

DATE OF JUDGMENT:       23/02/2001

BENCH: D.P. Mohapatra & S.N. Variava

JUDGMENT:

D E R L...I...T.......T.......T.......T.......T.......T.......T..J

Leave granted.

   The  defendant  in the civil suit No.2-A of 1993 of  the Court  of Additional District Judge, Shahdol, has filed this appeal assailing the order passed by the Madhya Pradesh High Court  on 20th June, 2000 in miscellaneous appeal No.1191 of 1998.   In the said order the High Court ordered appointment of  a  Receiver to be in charge of the suit properties  with other consequential directions.  The relevant portion of the order reads as follows:

   As  a  result of the aforesaid discussion, this  appeal succeeds and is allowed.  The impugned order dated 14.8.1998 is hereby set aside.  The Trial Court is directed to require both  the  parties  to suggest an agreed name  of  a  person within  fifteen  days from the receipt of the record  and  a copy of this order, for his appointment as a receiver in the case.  In case, they fail to do so, within the time fixed by the  Trial Court, the Trial Court shall be free to appoint a person  of  integrity as the receiver of the suit  property, who  is  well  conversant with the legal procedures  and  is capable  of maintaining true and honest accounts of the suit property  during  the  pendency  of   the  suit.   The  said appointment  of  the receiver shall be made initially for  a period  of  two years and it shall be extended by the  Trial Court  on an application being filed by the receiver or  the appellant,  in  case,  by that time the civil  suit  remains pending before it.  The trial court is further directed that it  shall,  after  the appointment of the receiver,  try  to dispose  of the Civil Suit within a period of one year  from the  date of receipt of copy of this order.  The Trial Court shall,  from  time to time, call for the accounts  from  the receiver  so  appointed and supervise his work and in  case, the work or accounts of the receiver is found unsatisfactory by  the  Trial  Court,  it shall be free to  appoint  a  new receiver.

   The  respondent  herein  filed the  aforementioned  suit

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impleading  the  appellants  herein   as  defendants.    The plaintiff  prayed  for a decree for partition  and  separate possession  of the suit properties.  The suit properties are structures in occupation of tenants.

   The  case of the plaintiff, shortly stated, was that the suit  properties  were  the  exclusive  properties  of  late Kishore  Chand  her  father and husband of  appellant  No.1. Appellants  2 and 3 are the sons of Virender Kumar, a nephew of  Kishore  Chand.   According  to  the  plaintiff  neither Virender Kumar nor his sons (appellants 2 and 3 herein) have any right title and interest in the suit properties.  Taking advantage  of  the old age of her mother they have kept  her under  their  clutches  and  have  been  enjoying  the  suit properties.  The plaintiff further alleged that defendants 2 and  3 have been collecting and appropriating the rent  paid by  the tenants without giving her any share therein.   They are  also inducting new tenants and collecting premium money from them.  The plaintiff also alleged that defendants 2 and 3  are making new constructions spending the money collected from  the  tenants  as  rent.    On  these  allegations  the plaintiff filed the application under Order XL Rule 1 C.P.C. for  appointment  of  a  receiver.  She had  also  filed  an application   seeking   interim   injunction   against   the defendants not to change the status quo of the suit property and not to alienate the same.

   The  defendants  refuted  the allegations  made  in  the petition  for  appointment of receiver mainly on the  ground that  they  have  been in possession and  enjoyment  of  the properties since long, for more than 50 years.  It was their contention  that they have not caused any loss or damage  to the  suit properties and therefore, no case for  appointment of  receiver  is made out.  They agreed not to alienate  any part of the suit property during pendency of the suit.

   The  trial court rejected the prayer for appointment  of receiver   and  dismissed  the   application  filed  by  the plaintiff.   On appeal being filed under Order 43 Rule 1 (s) C.P.C.   the  High Court by the order passed on  20th  June, 2000  ordered of a receiver and directed the trial court  to appoint  a proper person.  The said order is under challenge in this appeal.

   In  course of hearing of this appeal learned counsel for the  parties  stated that hearing of the suit has  commenced@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ and  some witnesses have been examined.  The learned counsel@@ JJJ appearing  for  the  respondent submitted that the  suit  is likely to be disposed of within two to three months.

   On the facts and circumstances of the case the main duty to be discharged by the receiver is to collect rent from the tenants  occupying different portions of the suit  property; to  maintain  accounts of all the collections and place  the same  before  the  Court.   The question  whether  the  suit property  is  the exclusive property of late Kishore  Chand; whether defendants 2 and 3 are entitled to have any share in the  suit  property will be decided in the suit.   The  fact remains  that  appellant  No.1 who is the widow  of  Kishore Chand  and  mother of the plaintiff is a very old  lady  who cannot  take  upon herself the task of collecting rent  from the  tenants  regularly;   of maintaining  accounts  of  the

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collections   and  to  ensure   proper  maintenance  of  the structure  etc.  The defendants 2 and 3, keeping in view the allegations  made  by the plaintiff against them, cannot  be entrusted  with  the work.  In such circumstances  the  High Court  rightly  ordered  appointment  of a  third  party  as receiver.

   The  learned  counsel  for  the  appellants  strenuously contended  that  the  High  Court  was  impressed  with  the statement of fact that the suit property fetches Rs.20,000/- per  month  as  rent  which  is  incorrect  and  misleading. Referring  to  the  statement submitted by the  receiver  on 14.8.2000 the learned counsel pointed out that only a sum of Rs.6,800/- was the collection during the month of July.

   In  such circumstances the High Court erred in  ordering appointment  of  a  receiver  on  monthly  remuneration   of Rs.10,000/-.   In  reply  to  the  said  contention  learned counsel  for  the respondent fairly stated that  Rs.25,000/- per  month is an exaggerated figure.  He submitted that  the receiver has voluntarily fixed a sum of Rs.1,000/- per month as  his remuneration and has been drawing such amount  after taking charge of the suit properties.

   On  consideration of the matter we are of the view  that the  order  of appointment of a receiver does not  call  for interference.  The order under challenge is modified only to the  extent  that  the  receiver  shall  receive  a  sum  of Rs.1,000/-   per  month  instead  of  Rs.10,000/-   as   his remuneration.   Since  hearing  of   the  suit  has  already commenced  the  trial  court  shall   dispose  of  the  same expeditiously  hearing  it from day to day.  The  appeal  is disposed of on the above terms.  No cost.

(D.P.MOHAPATRA) (S.N. VARIAVA) February  23, 2001