Allahabad High Court
Jaigurudev Dharm Pracharak Sanstha And ... vs Pankaj Yadav And 4 Others on 12 November, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:178669
AFR
Court No. - 36
Case :- FIRST APPEAL FROM ORDER No. - 602 of 2023
Appellant :- Jaigurudev Dharm Pracharak Sanstha And 3 Others
Respondent :- Pankaj Yadav And 4 Others
Counsel for Appellant :- Rajeev Mishra,Sr. Advocate,Vinod Kumar Pandey
Counsel for Respondent :- Rahul Sahai,Santosh Kumar Singh,Sukesh Kumar
With
Case :- FIRST APPEAL FROM ORDER No. - 297 of 2024
Appellant :- Jaigurudev Dharma Pracharak Sanstha And Another
Respondent :- Pankaj Yadav And 5 Others
Counsel for Appellant :- Pradeep Kumar Bhardwaj,Santosh Kumar Singh,Sr. Advocate
Counsel for Respondent :- Rahul Sahai,Rajeev Mishra,Sukesh Kumar,Vinod Kumar Pandey
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Anil Bhushan, learned Senior Counsel assisted by Shri Vinod Kumar Pandey, learned counsel for appellants in FAFO No. 602 of 2023, Shri Santosh Kumar Singh, learned Counsel for appellants in FAFO No. 297 of 2024 and Shri V.K. Singh, learned Senior Counsel assisted by Shri Rahul Sahai and Shri Sukesh Kumar, for respondent nos. 1 and 2 in both the appeals.
2. By the previous orders of this Court passed in both the appeals, service of notice upon the remaining respondents has been held to be sufficient. Since these two appeals involve common questions of fact and law, the same are being decided by a common judgment.
3. In both the appeals, order dated 13.03.2023 passed by Civil Judge (Senior Division), Mathura in O.S. No. 595 of 2012 has been challenged at the instance of plaintiffs and counter claimants. By the said order, four applications were decided after observing that all the applications contained identical prayer and were related to each other.
4. The grievance raised by the appellants is with regard to appointment of receiver to manage the properties and funds of 'Jaigurudev Dharma Pracharak Sanstha'. For this purpose, whereas plaintiffs of the suit filed application 101-C, the defendants Nathu Ram Sharma and others filed application 431-C in support of their counter claim. Both these applications contained prayer for interim management, more particularly with regard to appointment of receiver. Learned trial court has rejected the applications by referring to earlier proceedings held before this Court and making an observation that nothing substantial has been brought on record which could justify appointment of receiver which aspect is in the discretion of the Court.
5. Assailing the order impugned, Shri Anil Bhushan, learned Senior Counsel, vehemently submits that Pankaj Yadav, i.e. the respondent no. 1, has usurped the society and its properties without there being any authority vested in him. By referring to proceedings of Writ-C No. 34416 of 2012, he submits that when the rival parties put a claim for Presidentship of the society, the Assistant Registrar passed an order dated 06.07.2012 recognising Pankaj Yadav as President. However, this Court, having recorded a finding that the said order was without jurisdiction, decided the writ petition on 24.07.2012 observing that civil court would be competent to adjudicate the matter in accordance with law. Thereafter, O.S. No. 595 of 2012 was instituted and, during the pendency thereof, the order of writ court was challenged before Division Bench by filing Special Appeal No. 1375 of 2012, which was decided on 26.11.2012 making a limited remand to the writ court to hear the parties afresh before deciding as to what should be the interim arrangement and parties were directed to maintain status quo existing on that date till further orders of the writ court.
6. Pursuant to the order of the Division Bench, writ petition was again decided on 23.08.2013 with the same observation that civil court would be the competent forum and the matter of making interim arrangement was also left open to be considered and decided upon appropriate applications filed by the parties. It is further contended that in the light of the observations made by the writ court, the appellants filed a counter claim in the suit in 2022 and also moved an application 431-C seeking appointment of receiver which has been illegally rejected by the trial court. It is further urged that finding recorded by the learned civil court to the effect that there was no evidence to establish a claim for appointment of receiver, is perverse particularly when, in the application, reference to paragraph no. 28 of the counter claim was made which described various illegalities and misappropriation at the end of Pankaj Yadav. Shri Anil Bhushan refers to execution of certain sale deeds in relation to the property of the society/trust and also non-furnishing of accounts pertaining to the institution/society/trust. The entire thrust of Shri Anil Bhushan is that once Pankaj Yadav has failed to establish his lawful right to continue with the management of the trust/society/its property, it was a fit case where receiver should have been appointed.
7. Per contra, Shri V.K. Singh, learned Senior Counsel submits that the writ court finally left everything open to be decided by the civil court. Before the civil court, plaintiff of the suit moved an application for temporary injunction which was rejected on 12.04.2018 against which, a Matter under Article 227 No. 1689 of 2019 was filed by one Ram Pratap, who was plaintiff at that time in the suit however, the said petition was dismissed with the observation that in a suit for declaration, no relief of injunction can be granted and various other observations on merits were also made by this Court. He further submits that against the order dated 05.10.2013 deciding the Special Appeal, the appellants of FAFO No. 602 of 2023 filed SLP before the Supreme Court which was dismissed as withdrawn on 18.11.2014 with liberty to the appellant to seek appropriate remedies in appropriate civil action already filed or a separate action that the appellants might choose to file before the competent authority. It is further contended that for a period of eight years after dismissal of SLP, the present appellants remained silent and it was only in the year 2022 that an impleadment application was filed by them in the original suit which was allowed and the appellants were impleaded as defendants. He further submits that by that time, the claim for injunction set up by the plaintiff of the said suit had already been discarded by this Court in 2019.
8. Having heard the learned counsel for the parties, I find that scope of the instant appeal is confined to examine the prayer for appointment of receiver. For that purpose, provisions of Order 40 Rule 1 C.P.C. need to be referred and are reproduced hereunder:-
"1. Appointment of receivers.
(1) Where it appears to the Court to be just and convenient, the Court may by order-
(a) appointment a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending suit and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit."
9. The Court may also gainfully refer to judgment of the Supreme Court in Parmanand Patel (Dead) By LRs. and another Vs. Sudha A. Chowgule and others reported in (2009) 11 SCC 127, where the Apex Court has elaborately dealt with provisions of Order 40 Rule 1 of C.P.C. and has laid down that a Receiver is appointed only when it is found to be just and convenient to do so. Appointment of a Receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily, the Court would not appoint a Receiver save and except on a prima facie finding that the plaintiff has an excellent chance of success in the suit. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a Receiver would not be appointed unless a case has been made out which may deprive the defedant of a de facto possession. For the said purpose, conduct of the parties would also be relevant.
10. Further, in Industrial Credit & Investment Corporation of India Ltd. Vs. Karnataka Ball Bearings Corporation Ltd. (1999) 7 SCC 488, the Supreme Court, in para 6 of the report, held as under:
"6. Order 40 Rule 1 of the Code of Civil Procedure expressly provides for the appointment of a receiver over a property whether before or after the decree and the court may by an order confer on the receiver all powers of realisation, management, protection, preservation and improvement of the property. Order 40 Rule 1(d) specifically provides for realisation and the words "or such of those powers as the court thinks fit" appearing in Order 40 Rule 1(d) ought to be interpreted in a manner so as to give full effect to the legislative intent in the matter of conferment of powers by the court to preserve and maintain the property through the appointment of a receiver. Needless to record here that there is existing a power which is totally unfettered in terms of the provisions of the statute. Law courts, however, in the matter of appointment of a receiver through a long catena of cases, imposed a self-imposes restriction to the use of discretion in a manner which is in consonance with the concept of justice and to meet the need of the situation- "unfettered" does not an cannot mean unbridled or unrestrictive powers and though exercise of discretion is of the widest possible amplitude, but the same has to be exercised in a manner with care, caution and restraint so as to subserve the ends of justice. The law courts are entrusted with this power under Order 40 Rule 1 so as to bring about a feeling of securedness and to do complete justice between the parties."
11. In the instant case, learned Civil Judge, after taking note of the proceedings before the writ court and the special appellate court, when proceeded to examine the prayer for appointment of receiver, she observed that plaintiff had failed to file any evidence which could establish that defendant nos. 1 and 2 were misappropriating the funds and resources of the institution for their benefits. She also recorded that the defendant nos. 1 and 2 had produced income tax returns etc. on record and, as regards certain sale deeds, the same were executed in relation to properties situated in Ujjain and Madhya Pradesh regarding which the Civil Judge had no jurisdiction. The court also recorded absence of Uma Shankar Tiwari and by referring to the prayers made in the plaint as well as the counter claim, it rejected the applications.
12. From overall facts and circumstances of this case, I find that in the counter claim, possession over the property and managerial rights in the hands of respondent nos. 1 and 2 has been admitted to appellants of both the appeals. The final relief claimed, either in the suit or in the counter claim, is in terms of ouster of these persons from the management and a declaration has been claimed in favour of the plaintiffs or the counter claimants. In such view of the matter, for the purposes of appointing Receiver, the plaintiff as well as the counter claimants were under obligation to establish beyond doubt that management of the properties as well as the funds was not safe in the hands of the respondent nos. 1 and 2, may be that their authority to remain office bearers of the society/trust is under clouds.
13. Further, considering the fact that at no point of time the appellants got any relief from any court except an observation made by the writ court in the first order regarding lack of competence in the Assistant Registrar to recognize the list of office bearers of 2012-13, as far as prayers for interim arrangement or management are concerned, the plaintiffs have failed up to this Court. The counter claimants are, in fact, sailing in the same boat in so far as the grievance regarding interim arrangement is concerned. The Court does not find any reasonable justification to appoint a Receiver as it finds that when the appellants' SLP was dismissed by the Supreme Court in the year 2014, what prevented them from approaching the civil court though the Supreme Court had itself permitted them to avail such remedy. For a period of eight years, there was complete silence and it appears that the counter claimants were banking/relying upon the remedies availed by the plaintiffs of the suit, who were pressing their prayer for interim arrangement but the same was turned down by this Court in 2019 as aforesaid. Even thereafter, for a period of three years nothing was done by the counter claimants or by the plaintiffs. Therefore, elements of "emergency, danger or loss demanding immediate action" are completely missing in this case.
14. Though this Court may observe that merely because some properties of the trust/society are situated in Ujjain or other places of Madhya Pradesh, the same could not be a ground to reject prayer for appointment of Receiver, however, on complete perusal of the application for appointment of receiver as well as other findings recorded in the order impugned and following the ratio laid down in authorities referred above, this court is of the considered view that except making bare allegations against mismanagement and misappropriation of the properties and funds in the hands of respondent nos. 1 and 2, nothing substantial was brought on record. Even the averments made in paragraph 28 of the counter claim, aid whereof was taken in application 431-C, names of vendees have been disclosed but not of the vendors and other associated aspects have not been averred.
15. This Court is of the considered view that material in support of that prayer was lacking and, hence, without commenting upon the rights of the respondent nos. 1 and 2 with regard to properties or the management and leaving all contentions to that effect to be raised during the course of trial, no case is made out for appointment of receiver at this stage.
16. Both the appeals fail and are, accordingly, dismissed.
Order Date :- 12.11.2024
Sharad/-
(Kshitij Shailendra,J.)
