Andhra Pradesh High Court - Amravati

Vedicherla Aruna vs Gonu Srinivasulu on 15 March, 2021

Bench: U.Durga Prasad Rao

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
           CIVIL REVISION PETITION No. 284 of 2021
Between:
Vedicherla Aruna and others
                                                .. Petitioners

and

Gonu Srinivasulu and others
                                               .. Respondents

DATE OF JUDGMENT PRONOUNCED: 15.03.2021


SUBMITTED FOR APPROVAL:

      THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO


1. Whether Reporters of Local newspapers     Yes/No
   may be allowed to see the Judgments?


2. Whether the copies of judgment may be     Yes/No
   marked to Law Reporters/Journals?


3. Whether Their Ladyship/Lordship wish to   Yes/No
   see the fair copy of the Judgment?




                                  U. DURGA PRASAD RAO, J
                                    2
                                                                   UDPR,J
                                                         CRP No.284 of 2021


      *THE HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

               +Civil Revision Petition No.284 of 2021

% 15-03-2021

# Vedicherla Aruna and others                     .. Petitioners

Vs.

$ Gonu Srinivasulu and others                    .. Respondents



<GIST:



>HEAD NOTE:



! Counsel for petitioners : Sri S. Subba Reddy

^ Counsel for respondents : None


? CASES REFERRED :

1) AIR 1978 (A) 189
2) AIR 2009 SC 1593
                                      3
                                                                         UDPR,J
                                                               CRP No.284 of 2021




       HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

           CIVIL REVISION PETITION No.284 of 2021

ORDER:

Aggrieved by the order dated 03.03.2021 in I.A.No.93 of 2021

in O.S.No.221 of 2020 on the file of the Principal Junior Civil Judge,

Gudur, Nellore District, dismissing the petition filed under Order 26

Rule 10-B r/w 151 C.P.C for appointment of an Advocate

Commissioner to harvest the paddy crop raised in the plaint schedule

property, auction the same and deposit the sale proceeds in the suit

account, the instant C.R.P. is filed by the petitioners/plaintiffs.

2. The plaintiffs filed O.S.No.221 of 2020 against the defendants

seeking permanent injunction in respect of plaint schedule property.

In I.A.No.492 of 2020 the trial Court granted interim injunction in

favour of the plaintiffs. There upon, the plaintiffs filed I.A.No.93 of

2021 with the averments that even after receiving the injunction order,

the defendants are trying to interfere with the agricultural operations

conducted by the plaintiffs and with much difficulty, the plaintiffs

could carry on the agricultural operations and the paddy is now ripe

for harvest within twenty days and the defendants are proclaiming in

the village that they will harvest the crop raised by the plaintiffs at any

cost and if they are permitted to do so, the plaintiffs will be put to

much hardship. On these pleas, the plaintiffs prayed for appointment

of an Advocate Commissioner to harvest the paddy crop raised by

UDPR,J CRP No.284 of 2021

them in the plaint schedule property, auction the same and deposit the

sale proceeds in the suit account.

3. The defendants filed the counter and opposed the petition.

They contended that there is an injunction order in favour of the

plaintiffs and they are supposed to be in possession of the plaint

schedule land. Hence, in such circumstances, the petition to appoint

an Advocate Commissioner to harvest the crop and deposit the sale

proceeds, under Order 26 Rule 10-B r/w Section 151 CPC, is not

maintainable.

4. The trial Court having heard both sides, dismissed the petition

on the observations that the Court having regard to the record, granted

ad interim injunction on 07.12.2020 and so far, the

respondents/defendants did not file counter in I.A.No.492 of 2020 nor

filed any application to vacate the injunction order and as such, the

plaintiffs are presumed to be in possession of the suit schedule

property. In that view, the allegations of the petitioners that the

respondents are proclaiming in the village and they will harvest the

crop is only an apprehension. When the injunction order is in force,

the question of apprehending danger will only be a mere apprehension

on the part of the plaintiffs particularly, when the

respondents/defendants did not dispute the possession of the plaintiffs.

The trial Court further observed that if at all the petitioners/plaintiffs

apprehend any danger, they are at liberty to seek appropriate relief to

harvest the crop. Without availing such remedy, they straight away

UDPR,J CRP No.284 of 2021

filed the petition to appoint an Advocate Commissioner. The trial

Court ultimately held that there were no valid reasons to allow the

petition and accordingly, dismissed the application.

Hence, this CRP.

5. Heard learned counsel for the petitioners, Sri S. Subba Reddy,

and having regard to the facts involved in this case, I find no exigency

to order notice to the respondents. Therefore, this C.R.P is disposed

of at the admission stage.

6. At the outset, it must be said that the order of the trial Court is

impregnable, as there is neither irregularity nor illegality in the order

impugned. As rightly observed by the trial Court, having found prima

facie possession of the petitioners/plaintiffs emanating from the

records produced, the trial Court by its order dated 07.12.2020 granted

ex parte ad interim injunction in favour of the petitioners/plaintiffs.

Subsequently, the respondents/defendants appeared, but they neither

filed counter in I.A.No.492 of 2020 nor filed a petition to vacate the

ad interim injunction order. Therefore, till date, the plaintiffs are

under law, in possession of the plaint schedule property. Most

interestingly, in the counter filed in I.A.No.93 of 2021 also, the

respondents/defendants did not take a specific plea that they

themselves are in fact in possession of the suit schedule property and

the plaintiffs obtained ad interim order by placing some spurious and

false records. Their only plea is that since the injunction order is in

UDPR,J CRP No.284 of 2021

favour of the petitioners/plaintiffs, they are supposed to be in

possession of the plaint schedule land and therefore, the petition to

appoint an Advocate Commissioner is not sustainable under law.

7. In the light of the above factual position, there is nothing on

record to come to a prima facie conclusion that there is a scramble for

possession between both parties and none of them is in effectual and

legal possession so as to warrant appointment of an Advocate

Commissioner. It should be noted at this juncture that though the

petitioners/plaintiffs have not specifically prayed for appointment of a

receiver, the tone and tenor of the pleadings and prayer in I.A.No.93

of 2021 i.e., to appoint an Advocate Commissioner to harvest the

crop, conduct auction and deposit the sale proceeds into Court would

otherwise amount to a prayer for appointment of a receiver.

8. It is trite law that a receiver cannot be appointed for mere

asking and the Court shall make careful exercise and convince itself

that it is just and convenient to appoint a receiver. Since the

appointment of a receiver amounts to depriving the possession of a

party in respect of a property and makes the Court custodia legis, such

drastic action should be undertaken only in suitable cases. It is true

that the Court is not powerless to appoint a receiver in an injunction

suit, however, it can be done only within certain parameters. In S.B.

Industries, Freegung and others VS. United Bank of India and

UDPR,J CRP No.284 of 2021

others1, the High Court of Allahabad has delineated the circumstances

under which a receiver can be appointed and held thus:

"7. Order 40, Rule 1 of the C.P.C. lays down that whether it appears to the court to be just and convenient the court may by order appoint a receiver of any property, whether before or after a decree. In order to justify the appointment of receiver, the plaintiff must establish a reasonable possibility that the plaintiff will ultimately succeed in obtaining the relief claimed in the suit. The requirement thus is that he must establish a good prima facie case. It may further be remembered that the appointment of a receiver is, as a general rule, discretionary, and not a matter of right, A court will make an appointment of a receiver with great caution and circumspection. In a case where the remedy of the appointment of a receiver seems necessary to prevent fraud, to protect and preserve the property against an imminent danger of loss or diminution in value, destruction, squandering, wastage or removal from jurisdiction, the court may appoint a receiver. It may further be stated in this connection that a court in exercise of its discretion to appoint or refuse a receiver must take into account all the circumstances and facts of the case, the presence of conditions and grounds justifying the relief, ends of justice, the rights of all the parties interested in the subject-matter and the adequacy of other remedies."

In Parmanand patel (Dead) by L.R and others Vs. Sudha A.

Chowgule and others2 also, the Apex Court dealt with the

circumstances when a receiver can be appointed and observed thus:

AIR 1978 (A) 189

AIR 2009 SC 1593

UDPR,J CRP No.284 of 2021

"15. xxxxx A receiver, having regard to the provisions contained in Order 40 Rule 1 of the Code of civil Procedure, 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 defendant of a de facto possession. For the said purpose, conduct of the parties would also be relevant."

9. When the above jurimetrical jurisprudence is applied to the

instant case, no doubt the petitioners/plaintiffs have not specifically

prayed for appointment of a receiver, but as observed supra, the

pleadings are indicative of such a prayer. However, since the

plaintiffs by virtue of the interim injunction order are in possession

and as the respondents/defendants did not challenge their possession

and sought for vacating the interim order, there can be no just and

convenient reason for appointment of an Advocate Commissioner.

No imminent danger of waste or damage to the subject property is

surfacing on the record. In these circumstances, the trial Court, in my

considered view, has rightly rejected the prayer of the

petitioners/plaintiffs. Not only that, the trial Court has aptly held that