N.Annapurna. v. M.Ramana Kumar.

THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.1059 of 2009 JUDGMENT: (per Hon’ble Sri Justice V.V.S.Rao) The petitioner is plaintiff in O.S.No.744 of 2007. She filed the said suit on the file of the Court of the II Additional District Judge, Ranga Reddy District, for declaration and recovery of possession of suit schedule house. Alleging that the respondent is in possession of the property and let out the same without her permission, she filed I.A.No.2485 of 2007 under Order XL Rule 1 of the Code of Civil Procedure, 1908 (CPC), for appointment of Advocate Receiver to take possession of the property. The same was dismissed by the Court below on 10.07.2009. Therefore, the plaintiff is in appeal before us. The plaintiff and defendant were married. Their marriage ended in a divorce on 07.01.2002 granted by the Family Court, Vijayawada, in O.P.No.262 of 2001. In 1997 the plaintiff got appointed as Excise Inspector in East Godavari District. Be that as it is, she alleged that she purchased the suit schedule property from Sunil D.Thacher under registered sale deed dated 26.11.1993. She asserted that the respondent withdrew the money from her bank account and paid a sum of Rs.26,889/- to the vendors for the house plot which was later developed as a residential house with tin roof. The electricity service connection is also in her name and her name is mutated in the municipal records. The plaintiff alone is paying the municipal taxes. She alleged that after she got appointed as Excise Inspector in 1997 she left for the job, and due to disputes, the marriage ended in divorce, and even thereafter the husband continued to live in Hyderabad with a dishonest idea to grab the property falsely proclaiming that he is the owner of the property. He is only in permissive possession and he has no authority to claim title over the property. In her affidavit accompanying the Interlocutory Application she alleged that the respondent let out the house to tenants without permission and causing acts of waste. The respondent filed counter affidavit before the Court below. He alleged that he purchased the suit schedule house under registered sale deed dated 27.09.1993 from Sunil D.Thacher and Mahesh M.Thatcher in September 1993 for a total sale consideration of Rs.72,600/-. The property was delivered to him. When the sale deed was not executed, he filed O.S.No.345 of 2002 on the file of the Court of the Principal Junior Civil Judge (West & South), Ranga Reddy District, for specific performance of agreement of sale. The same was decreed on 30.12.2002 and in E.P.No.230 of 2004 on the file of the Court of the Additional Junior Civil Judge, Ranga Reddy District, the Court executed registered sale deed on 18.02.2006. He denied the allegation that he created forged and fabricated documents. He also asserted that plaintiff never claimed the property. He opposed the application for appointment of Receiver alleging that he is in continued uninterrupted possession of the property and that he has not committed any acts of waste. The Court below, as noticed above, dismissed the application on considering the documentary evidence – Exs.A1 to A5 and B1 to B8. In this appeal the learned Counsel for the appellant submits that the respondent let out the house without her permission and is committing acts of waste, and therefore, the Court below ought to have appointed Receiver. According to him the plot was purchased by the plaintiff from her savings and the respondent has no right over the property. Per contra, the learned Counsel for the respondent submits that his client obtained the sale deed executed by the Court, that admittedly he is possession of the property even after divorce between the plaintiff and respondent, and he has let out the property for a nominal rent to one tenant and he is using the remaining portion of the property. The undisputed facts are, till 1997 the plaintiff and defendant lived in the suit schedule house as wife and husband. In 1997 plaintiff got appointed as Excise Inspector, and therefore, she had to leave to East Godavari District. Whatever be the reason, their marriage was nullified and a decree of divorce was passed by the Family Court on 07.01.2002. Even thereafter, admittedly, it is only the respondent staying in Hyderabad and continued to stay in the house. In the affidavit accompanying the Interlocutory Application filed in the Court below there is not even a whisper with regard to the rent received from the tenants. Secondly, there are also no specific instances of acts of waste committed by the respondent with respect to the suit schedule property. In the affidavit filed before this Court along with the Civil Miscellaneous Application it is alleged that respondent is getting rents of Rs.5,000/-. The same is of no avail. This is an appeal against the order of the Court below in I.A.No.2485 of 2007. Therefore, the appellate consideration should be with reference to the pleadings and the evidence adduced before the Court below and new pleadings cannot be permitted before this Court. Secondly, except making an allegation that the respondent let out the suit schedule premises without her permission and the respondent is resorting to acts of waste, no details are forthcoming. In such background a Receiver cannot be appointed, especially, when prima facie the respondent has shown that he obtained necessary document of title from the civil Court as noticed supra. A reference may be made to Chelikam Rajamma v Padileti Venkataswami Reddy[1], wherein it was held. From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deduced. (1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of receiver must out a case that he or she was not only keep out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3) I f , prima facie, the plaintiff has excellent chance of succeeding in he suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be a relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of he yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver. The Court in considering the application for appointment of receiver cannot ignore the economic status of the person seeking an order for receiver. By reason of not being in possession of the suit property, if a person suffers from the lack of anything for maintenance, it can be a valid ground for appointment of receiver to collect the rents from the property. This, however, depends on collateral facts relevant to the issue. In this case the appellant is admittedly working as Excise Inspector at a far off place, and therefore, it is not a case where as divorced wife she suffers from penury. We have considered the application for appointment of Receiver filed by the appellant before us in the light of the above principles and we are convinced that in the background of the case an Advocate Receiver cannot be appointed. We are also not inclined to accept the submission of the learned Counsel to impose a condition on the respondent to deposit rents. This is a new plea, which was not urged before the Court below. However, we are inclined to direct the Court below to dispose of the suit itself within a period of six months from the date of receipt of a copy of this order excluding Court vacation period and without seeking extension of time. The Civil Miscellaneous Appeal with the observations is accordingly dismissed. There shall be no order as to costs. _______________ (V.V.S.RAO, J) ________________ (B.N.RAO NALLA, J)

21.12.2009 [1] 1993 (2) ALT 154 (DB)