PARVATHY RUDRANI Vs. LEKSHMI YESODA

JUDGEMENT

(1.) The 4th defendant in O. S. No. 44 of 1978 on the file of the Munsiff, Punalur is the petitioner. This revision is against an order passed by the court below dismissing a petition filed by the petitioner for leave to institute a suit against the receiver appointed in the suit. The suit was for a permanent injunction. An application was filed for a temporary injunction. The Trial Court originally granted an ex parte temporary injunction. At this stage the petitioner, who was not originally arrayed as a defendant, got herself impleaded and opposed the injunction application. The Trial Court after hearing the parties, modified the injunction order and appointed instead a receiver to the property. The petitioner thereupon filed C. M. A. 4 of 1978 before the Sub Court, Kottarakkara. This appeal was allowed by the Sub Court with a direction to the receiver to surrender possession of the property to the person from whom he had taken possession. After this, the petitioner filed I.A. 1259 of 1978 seeking permission from the court to file a suit against the receiver also. Copy of the plaint intended to be presented before the Sub Court was also produced. The court below dismissed the application holding that her right could be decided in the present suit itself and that the receiver was not a necessary party in the suit proposed to be filed by the petitioner. It is against this order that the present revision is filed

(2.) The learned counsel for the petitioner forcibly contended that the court below had failed to exercise the jurisdiction vested in it and had committed a jurisdictional error in not granting leave asked for. According to him, in no case can a court refuse such leave when asked for, though later he qualified it by saying that to grant leave was the rule and refusal only an exception.

(3.) Before discussing the question of law bearing on this point it is necessary to set out the facts of the case clearly. The present petitioner was not a party to the injunction suit. She got herself impleaded and invited an order on her opposition in the appointment of a receiver. She challenged this order by filing an appeal, the order in which also was adverse to her. The appellate court has directed the court below to direct the receiver to surrender the property to the person from whom the receiver took possession. There is some difficulty in this case. The receiver was not definite as to who was in possession at the time he took possession. If this fact was not in dispute, the direction of the appellate court could have been easily worked out by directing the receiver to hand over the property to the person from whom he obtained possession.