BALBIR ANAND Vs. RAM JAWAYA KAPOOR

JUDGEMENT

(1.) This is a miscellaneous first appeal against the order of the District Judge, Alwar, dated 24-3-1958, by which he ordered that the factory The Alwar Mineral Syndicate', which was the subject matter of litigation between the parties, be given on lease to Shri Ram Jawaya Kapoor (Respondent No. 1) for a term of five years from 1-6-1958 at Rs. 1,000/-/-per month. In pursuance of that order, the Receiver who had been appointed in compliance with the order of the High Court for United State of Matsya, Alwar dated 31-3-1949 executed a lease on 16-4-1958 in favour of Respondent No. 1 and delivered the possession of the factory premises on that date to Respondent No. 1.

(2.) The plaintiffs, Ram Swaroop and Ravindra, who are Respondents Nos. 2 and 3 in this appeal, instituted a suit in the court of the District Judge, Alwar, on 111-1949 claiming that they had two-third share in the suit property and that the same should be partitioned and the defendants be also ordered to furnish accounts. An application for appointment of Receiver pending the decision of the suit was made which was refused by the trial court but ultimately the Matsya High Court on appeal directed that a 'Receiver' be 'appointed' of the disputed properties pending the disposal of the present suit. In pursuance of that order, the trial court appointed a Receiver under the terms and conditions set out in the order of the District Judge dated 23-2-1950. One of the terms and conditions was that the Receiver shall not grant leases without the leave of the court. Thereafter, a preliminary decree was passed by the District Judge on 14-2-1955, by which the plaintiffs' share was determined as two-third in the suit property and the defendants' share as one-third in it. It was also provided in the decree that the Receiver shall remain in possession of the property on behalf of the parties. The Receiver was also directed to divide the properties between the parties in accordance with the decree. An appeal was filed by the defendants to this Court against that decree and cross- objection was tiled by the plaintiffs. This Court by its order dated 13-4-1955 stayed the proceedings for the final decree. The learned District Judge felt the necessity of inspecting the site of the factory on 24-11-1957, in connection with certain orders which he had to pass relating to the refund of certain money which had been lying in deposit as security. He inspected the site on 16-12-1957 and found that the factory was lying in ruins and was not properly looked after by the Receiver, He was also informed by the Receiver and the Advocate of the plaintiffs that someone was anxious to get the machinery as well as the premises on lease for doing business of making powder of barytes stones. On 17-12-1957, the plaintiff made two applications, one for giving the property on lease and the other for the removal of the Receiver. On the same date, another application was made by Respondent No. 1 that he was prepared to take the factory on lease for a period of five years on a monthly rent of Rs. 1,000/-/- provided that it was given in working order. Notice of these applications was given to the parties and the case was fixed for hearing on 4-11958. The Receiver had submitted his resignation meanwhile and on 4-1-1958 the court ordered that a Public Works Deptt. contractor be appointed to assess the value of the property and the case was adjourned to the 15th of January, 1958. The case was again adjourned to 25-1-1958. On that date parties informed the Court that before the property is leased out, an opportunity may be given to them to arrive at a settlement and for that the case may be adjourned for one month. The case then came up for hearing on 25-2-1958 but no compromise had taken place. The case was adjourned for orders to 8-3-1958. On that day parties and their counsels were absent and the District Judge noted that he thought it necessary to pass proper order suo motu. On 24-3-1958, the order under appeal was passed. It appears that the resignation of the Receiver was not accepted and the Receiver was directed by the order of the 1st of April 1958 to execute the lease in accordance with the order of 24-3-1958 in favour of Respondent No, 1. The lease deed was executed on 16-4-1958 and the possession of the property was delivered to Respondent No. 1.

(3.) It may also be mentioned that a letter offering Rs. 1,100/-/- p. m. as rent was sent to the District Judge by a Company 'Strake and Co.' of New Delhi on 6-1-1958 which was duly received by the District Judge. A telegram was further sent by the same company on 14-1-1958, saying that it was prepared to pay the highest lease money and praying that hearing may be granted. Another letter was also sent by the Company on 14-1-1958 confirming the telegram. As it appears from the order under appeal, the learned District Judge did not take notice of these documents. A telegram was also sent on the 10th of April, 1958, by one of the defendants that parties were negotiating compromise and the court was requested not to complicate matters by giving the factory on lease to third party. The learned District Judge did not take notice of this document as well. It appears that on 27-4-1058, a compromise was arrived At between the parties by which they admitted their respective shares as declared by the Court in the property in dispute and further agreed to withdraw their appeal and cross objection in the High Court. It was also agreed that the defendants should purchase the share of the plaintiffs of Rs. 60,000/-/-and on the payment of that amount they would become the owners of the entire assets of the factory. An application for recording the compromise was made on 27-4-1958. It was also mentioned in the application that the parties had agreed to make joint efforts to get the order of lease vacated. On that very day, another application was made for cancelling the lease. In this application it was also stated that the plaintiffs had been offered Rs. 1,250/-/.- per month as rent,