V SANJEEVAMMA Vs. Y PURNAMMA

JUDGEMENT

(1.) THIS Civil Miscellaneous Appeal is filed against an order of the learned subordinate Judge, Narasaraopet passed in I.A.No. 2492 of 1982 in O.S.No. 22 of 1978 appointing a Receiver for the suit properties.

(2.) O.S.No.22 of 1978 has been filed by three respondents before us. They are, Y. Purnamma, Gurram Papamma and K. Kusumaharanathababa Rani Kumari, who are all residents of Yedlapalli, Guntur Dis.riet. The suit was filed for declaration of their title and possession to the suit property. The suit was filed on the basis of a registered will, which was admittedly executed by one Katta Anjanoylu on 7.5.1981 bequeathing a life estate in the suit properties to the first and the 2nd plantiffs and the vested ramainder to the third plaintiff. Katta Anjaneylu appears to be a man of considerable property, but of no family happiness. During his lifetime he appears to have married thrice and engaged himself in several legal battles with his own daughter, the present appellant, V. Sanjeevamma During the lifetime of Katta Anjaneylu, V.Sanjeevamma filed O.S.No.86 of 1963 for recovery of possession of the immovable property of Acs. 10-60 cents together with past and future profits from her father and others. In O.S.No.86 of 1963 Sanjeevamma set up a case that the abovementioned Acs. 10 and odd of the land was given to her by way of an oral gift at the time of her marriage as 'Pasupu Kunkuma.' She complained to the court that her father did not fulfil his promice either by executing a document or delivering possession of the lame. Sanjeevamma, therefore, filed O.S.No.86 of 1963. The suit was contested by Sanjeevamma' s father Katta Anjaneylu who denied the fact that he ever made any such announcent expressing his intention to give the property as Patupu Kumkuma to the said Sanjeevamma at the time of her marriage. O.S.No. 86 of 1963 was dismissed by the trial court and also by this court in A.S.No. 256 of 1968 filed by the daughter Sanjeevama. In the judgment dated 7th April 1971 this court dismissed the appeal No. 256 of 1968 filed by the daughter Sanjeevamma against her father holding that in the absence of a registered conveyance no title could pass in favour of the daughter. After he won the appeal in A.S.256 of 1968, filed by his daughter Sanjeevamma, the said Anjaneyulu filed O.S.No. 643 of 1973 on the file of the District Munsif Court, Sattenapalli, for recovery of makta from his tenant. During the pendency of trial of that suit along with another suit filed by the said. Anjaneyulu in O.S.No. 129 of 1969 on the file of the same court for recovery of maktha due from his tenants, Anjaneyulu died on 30.3.1974. After the death of Anjaneyulu the question arose as to who should be brought on record as the legal representatives of Anjaneyulu. On theonehand the present plaintiffs in O.S.No 22 of 1978 claiming title to the property under the afore mentioned will dated 7.5.1971 sought to implead themselves as the legal representatives of late Anjaneyulu in the aforementioned two suits on the flie of the District Munsif' s Court, Sattenapalli. On the other hand the above said Sanjecvamma clamed to be the legal representative of Anjancyulu under an unregistered will dated 10-1-1973 allaged to have been executed by late Anjaneylu in her favour. While the aforesaid two suits for recovery of maktha were pending, the parties had agreed to refer their differences to an arbitrator, But the arbitrator instead of passing his award, went to the Subordinate Judge's Court, Narasaraopct, seeking extension of time for giving his award. While his application seeking extension of time was still pending it appears that the arbitrator passed his award and even filed it in to the Subordinate Judge' s Court. The Subordinate Judge allowed the application of the arbitrator in I.A.N.190 of 1975 seeking extension of time to file the award. But the present plaintiffs-respondents have filed O.P.No.84 of 1976 to set aside the award passed by the arbitrator. But thereafter what has happend is not very clear, although we have heard this matter at considerable length. But it appears for certain that the award passed by the arbitrator was never made the rule of the court, nor was that award registered. At about that time the present plaintiffs had sued in forma pauperis the said Sanjeevamma; her sister veeraraghavamma and arbitrator for declaration of title and for recovery of poss ession of the suit schedule property. It was in that suit the present applica tion for the appointment of receiver had bean made in I. A. No.2492/82, which had been ordered by the court below. It is against this order of the learned Subordinate Judge, Narasaraopet, the present Civil Miscellaneous Appeal has been filed.

(3.) IT is argued by Sri Hanumantharao, the learned counsel for appellant, that although no counter had been filed by his clients opposing the application of the plaintiffs for the appointment of a Receiver, the lower court on the basis of the insufficient averments made in the petition for the appointment of a Receiver ought not to have appointed the Receiver. He argued that the petition did not contain any particulars regarding the acts of waste and the lower court ought to have noted that the application was belated and for those reasons the order of the lower court appointing the Receiver and allowing I.A. No. 2492 of 1982 should be set aside by us. We arc unable to agree with this contention of the learned counsel. The appointraient of Receiver is undoubtedly a very serious matter. Recourse to that remedy should be taken by a court only as a last resort. But where the parties who were likely to be affected would never show their oppsition by filing a counter although the matter underwent several adjournments, the court cannot but be held to be right in presuming that there was no serious objection by the defendants for the appointment of a Receiver. IT is one of the settled principles of our system of pleadings that an averment, which is not denied by the opposite party must be taken by the court to have been admitted. The only way which the law provides for the denial of an averment of fact is by filing a written statement or a counter affidavit. In an adversary system of justice which is not wholly unsuited for the trial of civil claims the courts in order to maintain their neutrality must follow the rule of pleading. In this case, the defendants had filed no counter. In view of that, it appears to be impermissible for a court to ask the plaintiff to prove the facts however insufficiently they might have been averred in their application for the appointment of a Receiver. After all, a fact in a civil court requires proof only when it requires to be established under the teeth of the opposition put forth by the legal contestant. But where there is no denial, the court would not be justified in trying that fact. IT is not a case where the defendants are being dented adequate opportunity to file a counter affidavit. They have asked for and have been freely granted several adjournments, which are more than enough to enable them to file a counter, if they had been so minded. In these circumstances we are of the. opinion that the appointment of a Receiver is unavoidably brought about by the acts of omission either knowingly or unkonwingly done but certainly willingly committed by the defendants. On this point, therefore, we are of the opinion, that the lower court's order cannot be found fault at all.