SUBBALAKSHMI AMMAL Vs. RAJALAKSHMI AMMAL

JUDGEMENT

(1.) THIS appeal is directed by the defendants in O. S. No. 108 of 1986 on the file of the Subordinate Judge, Madurai , challenging the order of appointment of receiver passed in the above suit.

(2.) THE fact which are necessary for the disposal of this appeal are briefly as follows: THE appellants herein (hereinafter referred to as the defendants) are the tenants while the respondents herein (hereinafter referred to as the plaintiffs) are the landlords. THE subject matter of the suit is a lodge consisting of two items, namely a building which is described as A Schedule and furniture, fittings, costs, etc. , which are described as B schedule. THE father of defendants 2 to 4, one P. Kumarasami Reddiar took the premises on lease as per an un-registered lease deed dated 19-9-1955 and agreed to pay a rent of Rs. 1,000 for A Schedule property and Rs. 100 for B Schedule property, and paid an advance of Rs. 5,000. Subsequently it was enhanced to rs. 1,700 and Rs. 300 respectively. THE plaintiffs filed a suit in O. S. No. 118 of 1984 for recovery of possession of both items and arrears of rent of Rs. 12,000 for the period from 1-4-1983 to 30-9-1983. During the pendency of that suit, the present suit was filed for recovery of damages for use and occupation from 1-10-1983 till 31-1-1986 for Rs. 56,000. THE suit O. S. No. 118 of 1984 was decreed on 26-9-1986. THE impugned order was passed on 22-4-1988 in I. A. No. 24 of 1987 which was filed on 4. 2. 87 for appointment of a receiver or to appoint the fourth plaintiff as receiver to collect the rental income and to deposit the amount into court once in three months and to submit accounts for income and expenditure on the allegation that in the lodge, there are 50 rooms and the defendants are realising an income of Rs. 10,000 per mensem. In any event, it would fetch not less than Rs. 6,000 per mensem. THE defendants are paying only rs. 2,000 per mensem from 1982. THE rent was not increased thereafter. Though the decree in O. S. No. 118 of 1984 was passed on 26. 9. 1986, the defendants neither filed any appeal nor vacated the premises. It is also alleged that the defendants are misusing the B Schedule articles and are creating loans over the b schedule properties belonging to the plaintiffs.

(3.) THE second submission made by the learned counsel for the appellants is that none of the ingredients which are necessary for appointment of receiver under O. 40, R. 1, C. P. C. , has been alleged and made out. On going through the order passed by the court below, I find that the lower court mainly relied on the question of title. In addition, it is only stated that in the affidavit filed by the plaintiffs it is alleged that the defendants are getting loans by hypothecating articles in the lodge and that it is not disputed. Hence, it is necessary to meet the ends of justice to appoint receiver. It is to be noted that in para 5 of the affidavit filed in support of the application only a vague allegation is made that the defendants are creating loans over the B schedule articles belonging to the plaintiffs and that the defendants are misusing the properties. No details about the alleged hypothecation have been given. THE said allegations were denied in para 9 of the counter-affidavit filed by the defendants, wherein it is stated that the allegations in para 5 of the affidavit under reply are false being irrelevant. THE defendants admittedly being the tenants holding over are liable to pay only the rent agreed till they are evicted by due process of law. Learned counsel for the respondents (plaintiffs) A. R. Lakshmanan submitted that under clause 7 of the lease deed which is marked as Exhibit A. 2. in the prior suit, there is a prohibition for creating encumbrance of sub-letting the premises or putting the same to a different user and the creating loan over the B Schedule properties is by itself sufficient for appointment of receiver. I do not find any merit in the said contention. In this connection, the learned counsel for the appellants drew my attention to the off quoted decision reported. In Krish-naswamy v. Thangavelu, A. I. R. 1985 Mad. 430 wherein P. N. Ramaswami, J. , has held down five requirements and held as follows: "the appointment of a receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. THEreafter, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution and only when the five requirements embodied in the wordsb just and convenient b in O. 40, R. 1 are fulfilled by the facts of the case under consideration. (Italic is ours ). THEse five requirements are: 1. THE appointment of a receiver pending a suit is a matter resting in the discretion of the court. 2. THE court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. 3. Not only must the plaintiff show a case of adverse and conflicting claims to property but, be must show some emergency or danger or less demanding immediate action and of his own right, he must be reasonably clear and free from doubt. THE element of danger is an important consideration. 4. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause irrepairable wrong. It would be different where the property is shown to be in medio, that is to say, in the enjoyment of the one, and 5. THE Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame. Learned counsel for the respondents (Plaintiffs)submitted that the plaintiffs showed to the court that they have got the excellent chance of succeeding in the suit. That itself is not sufficient for the appointment of a Receiver. As rightly observed in the decision, the element of danger is an important consideration. THE plaintiffs must show some emergency or danger or loss demanding immediate action. As rightly contended by the learned counsel for the appellants, the stray and vague allegations that the defendants are creating loans over B schedule properties which consist of furniture and other movables cannot be the foundation for the appointment of receiver. It is also submitted by the learned counsel for the appellants (defendants) submitted that such an allegation was not made before the lower court and only for the first time in the counter-affidavit before this court such an allegation was made. In any event there is no basis for the same and hence it is not open to the respondents to raise such a contention when there is no such pleading before the lower court. I find much force in the said contention. Except finding that the plaintiffs were driven to the necessity of filing the suit for recovery of arrears of rent, they have not made out any case for appointment of receiver especially when badmittedly the defendants are the tenants from 1955. THE plaintiffs claimed damages for use and occupation at the rate of Rs. 2,000 which is the rent as admitted by both parties. THE plaintiffs have also attached the properties of the defendants before judgment for the suit claim. Further, after the filing of the petition, this court granted stay of delivery of possession, putting the defendants to certain terms and the defendants deposited a sum of Rs. 22,000 towards the decree amount, and admittedly they have been sending the future rent also by way of demand drafts at the rate of Rs. 2,000 per mensem. As rightly contended by the learned counsel for the appellants, the order appointing a receiver subsequent to the order of stay passed by this court would nullify the effect of the stay order. What the respondents herein (Plaintiffs) should not obtain the relief of dispossession of the appellant in view of said order of stay granted by this court they indirectly were to get the same by appointing Receiver. It is well settled that an order of appointment Receiver would not be made to the effect of depriving the defendants of their lawful possession since that will cause irrepairable loss, especially in the absence of any material to hold that the property is exposed to danger or loss. In this connection, my attention was drawn to the decision of this Court reported in Syed Azadulla v. Syed Roshan, (1967)2 M. L. J. 296: 80 l. W. 571:a. LR. 1968 Mad. 86 where Ramaprasada Rao, J. , (as he then was), relying on the decision is Sivaji Raja Sahib v. Aiswariyanandaji, held; "therefore, Receivers over suit properties ought not to be appointed for the mere asking for by one or other of the parties to the litigation unless some allegation as to waste or some prima facie proof as to detriment to property is established. In this case, there is this additional factor that the defendant himself is in possession of the suit property under cover of Ex. B-1 an equally efficacious registered instrument of gift executed by his father in his favour in 1964. He, therefore, claims prima facie title to the property as well. It is also indisputable proposition that such possession with parties who have a prima facie title to the same ought not to be disturbed pending disposal of the suit. On both the grounds, I am satisfied that it is neither just nor convenient in the instant case to disturb the possession of the properties now admittedly remaining with the defendants. "