SIBESWAR SAMANTA Vs. AMARNATH SAMANTA AND ORS.

JUDGEMENT

(1.) This Rule is directed against an order dated March 17, 1979 passed by the learned Additional District Judge, Second Court, Hooghly in Misc. Appeal No. 186 of 1978 reversing the order No. 43 dated Sept. 26, 1978 and order No. 47 dated Sept. 30, 1978 passed by the learned Munsif Second Court, Hooghly in Title Suit No. 83 of 1978 The plaintiffs the petitioner in the instant revisional application and the said plaintiff instituted title suit No. 83 of 1978 in the Second Court of the learned Munsif at Hooghly initially against the opposite parties Nos. 1 and 2 for declaration that the plaintiff and the husband of the defendant No. 2 had 12 annas and 4 annas shares respectively in a partnership business of Husking Machine and structures, other machineries and accessories in plot No. 142 appertaining to R. S. Khatian No. 252 of Mouza Mayurari and also for a declaration that the opposite party No. 1 was the Benamdar of the plaintiff in respect of the said 12 annas share in the business belonging to the plaintiff. A prayer for permanent injunction restraining the said opposite party No. 1 from entering into the suit premises and from disturbing the peaceful possession of the petitioner in respect of the said partnership business was also made. The plaintiff petitioner contended that the plaintiff was the partner of one Shri Lalmohan Dey namely the opposite party No. 3 in the instant revisional application in a business of Husking paddy, wheat and other grains at village Satikhal and the petitioner and the said Lalmohan Dey developed and improved the said business at Satikhal. Thereafter the said petitioner and the said Shri Lal Mohan Dey purchased. 27 acres of land along with a structure thereon and installed a machine and started business and the petitioner had 12 annas share and the said Shri Lal mohan Dey had 4 annas share. As it was difficult to procure licence in the name of the petitioner and the said Lalmohan Dey because the authorities concerned were not willing to give two licences to the said two persons and application for licence was made in the name of the defendant opposite party No. 1 who is the brother of the plaintiff and the defendant opposite party No. 2 who in the wife of the said Shri Lalmohan Dey and both the said brother and the wife of Shri Lalmohan Dey were benamdare respectively of the petitioner and the laid Lalmohan Dey. But as the opposite party No. 1 started interfering with the said partnership business and had been demanding accounts for the business the aforesaid suit for declaration had to be instituted.

(2.) It appears that after institution of the said suit the petitioner made an application for interim injunction under Order 39 Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure for restraining the defendant opposite party No. 1 from interfering with the said partnership business of the plaintiff and the said Shri Lalmohan Dey. It appears that by the order dated May 10, 1978 the learned Munsif Issued an interim order directing the parties to maintain status quo. It further appears that In terms of order No. 2 dated May 10, 1978 one Shri Panchu Gopal Dutta, an Advocate was appointed Commissioner for holding local Inspection and to report and the said Commissioner submitted his report on July 3, 1978 and it appears from the said report that the plaintiff petitioner and the said Shri Lal Mohan Dey the husband of the opposite party No. 2 could be found in the premises of the business. It further appears from the report of the learned Advocate Commissioner that he found some other persons named therein on the suit plot and on an enquiry from the said persons it transpired that none of the said persons had seen the defendant No. 1 on any occasion. It appears that the plaintiff made an application under Order 40 Rule I read with Sec. 151 of the Code of Civil procedure for appointment of a Receiver on an allegation that the interin order directing the parties to maintain status quo could not solve the problem and taking advantage of the said interim order the defendant opposite party No. 1 on an allegation that he was the owner and hid been running the said business continued to Interfere with the running of the business and had been constantly threatening to dispossess the petitioner and to get control of the business on the plea of checking accounts. It may be stated in this connection that the defendants Nos. 2 and 3 filed written statement inter alia admitting the claim of the plaintiff that the plaintiff and the said Sri Lal Mohan Dey were partners of the said business and the brother of the plaintiff and the wife of the said Lalmohan Dey were only benamdare. The opposite party No. 1 however denied the allegations made in the plaint by filing a separate written statement and the opposite party No. 1 contended that the said Shri Lalmohan Dey and the other partner of the said defendant No. 1 had been colluding with the plaintiff. It appears that during the hearing of the application for appointment of the Receiver at the instance of the defendant opposite party No. 1 the records relating to the Husking Mill was called for and such records were produced by the Office of the District Controller of Food and Supplies Chiniurah through one office Assistant namely, Sri Krishna Chandra Lahiri. It appears from the deposition of the said Shri Krishna Chandra Lahiri that in the office of the District Controller of Chinsurah, an application for licence of the Husking Mill in question was filed by the plaintiff, the opposite party No. 1 and the said Shri Lal Mohan Dey. The learned Munsif after considering the evidence adduced by the parties and the documents filed by the respective parties for the purpose of hearing of the said application for appointment Receiver allowed the said application for appointment of Receiver by his Order No. 43 dated Sept. 26, 1978 and an Advocate of the Trial Court was appointed as Receiver in respect of the said business of Husking Mill. The learned Munsif inter alia held in the said order dated Sept. 26, 1978 that admittedly there was enmity between the opposite parties Nos. 1 and 2 and in the interest of the business, co-operation between the partners was essential and in the absence of such co-operation, it was necessary to appoint a Receiver. The learned Munsif also held that in old account books most of the accounts had been written by the plaintiff and such accounts had been checked by the Inspector of Food and Supplies and the accounts had been maintained regularly and it appeared that the plaintiff had concern in the suit business. The learned Munsif also noted the fact that during the local inspection the defendant No. 1, the brother of the plaintiff, could not be found in the said premises. It appears that on the very same date the application for injunction was also taken up but in view of the appointment of Receiver no other order was passed on the said application for injunction. In terms of the direction passed by the trial court the plaintiff also deposited a sum of Rs. 100.00 towards the Receiver's fee and one Shri Chittaianjan Ganguly, learned Advocate of the Trial Court was appointed the Receiver by the learned Munsif and the court directed him to immediately take charge of the said business.

(3.) The defendant No. 1 thereafter preferred the said Misc. Appeal No. 186 of 1978 in the Court of the learned Additional District Judge, Hooghly and on an application made by the said defendant No. 1 the learned Additional District Judge granted interim stay of operation of the said order of appointment of Receiver and the subsequent order appointing the said Shri Ganguly to take charge as Receiver of the said business. The learned Additional District Judge Second Court. Hooghly who ultimately heard the said Misc. Appeal allowed the said Misc. Appeal on contest and set aside the aforesaid order Nos. 43 and 47 passed by the learned Munsif and the appointment of the Receiver was thereby cancelled. The learned Court of Appeal below came to the finding that the motive for applying for licence for the said business in the name of the brother of the plaintiff and the wife of the said Shri Lalmohan Dey did not appear to be convincing and there was no paper on the side of the plaintiff to show that the plaintiff had paid money for starting the business in question. The learned Additional District Judge also held that although the plaintiff filed a Nadabipatra inter alia showing that the defendant No. 1 namely, the brother of the plaintiff, had admitted that the said business was a business belonging to the plaintiff and the said brother was only a benamdar but it was contended by the defendant No. 1 namely, the brother that the said document was manufactured for the purpose of the suit and unless on evidence it is decided that the said paper was not manufactured for the purpose of the suit no notice could be taken of the said document. As aforesaid, against the said order passed by the learned Additional District Judge dismissing the said appointment of the Receiver in respect of the said business, the plaintiff moved a revisional application under section 115 of the Code of Civil Procedure and the instant Rule was issued.