Muddineti Dhana Prakash, Krishna ... vs Amireddy Ramu, Krishna Dist Seven ...
2023 Latest Caselaw 4407 AP

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          HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
                                  AND
     HON'BLE SRI JUSTICE DUPPALA VENKATA RAMANA


                 CMA.Nos.1109 and 1143 of 2017


COMMON JUDGMENT: (per Hon'ble Sri Justice D.V.S.S.Somayajulu)


      Both these civil miscellaneous appeals are taken up for

hearing together since they arise out of the same suit O.S.No.75 of

2015 on the file of IX Additional District Judge, Krishna,

Machilipatnam.

2.    The suit is filed by the plaintiffs for a declaration that the

plaintiffs 1 and 2 are the absolute owners of the plaint schedule

property and a direction to the defendants to deliver back the

plaint schedule properties. A decree is also sought towards future

profits from the date of the suit.

3.    The plaintiffs 1 and 2 claim to be the sons of one Sri

M.Ranga Rao through his second wife. They claim ownership to

the property through a Will dated 18.08.2000 executed by their

father. Plaintiff Nos.3 to 6 are said to be their tenants. The 3 rd

defendant in the suit is the daughter of M.Ranga Rao through his

first wife. The defendant Nos.1 and 2 are her husband and son.
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The suit is being contested. Two interlocutory applications were

filed in the suit.    I.A.No.315 of 2015 was filed for a temporary

injunction restraining the alienation of the properties. I.A.No.362

of 2015 is filed in the very same suit for appointment of a receiver

for the properties.       These were dismissed after contest and

questioning the same, the present civil miscellaneous appeals are

filed.

4.       After hearing both the learned counsel and perusing the

material, this Court notices that a detailed reasoned order was

also passed in the matter.          With regard to the affidavit in

I.A.No.315 of 2015, this Court notices that up to para 6, the title

of the parties is traced and there is a reference to an earlier suit

O.S.No.74 of 2012.        Only in para 7, it is mentioned that the

respondents are making an attempt to transfer the suit schedule

properties in favor of third parties. Therefore, an injunction is

sought.

5. In the counter, on merits, a lot of grounds in opposition were

raised. The right of the plaintiffs to the property is also denied.

6. Coming to the case law on the subject, learned counsel for

the appellants relied upon Parmanand Patel (D) by L.Rs. and

another v. Sudha A. Chowgule and others1 and R.Parijatham

and another v. M.Kameshwari and others2.

7. Learned counsel for the respondents relied upon Nawab Mir

Barkat Ali Khan v. Nawab Zulfiquar Jah Bahadur and

others3 and Syed Mubasheruddin Ahmed and others v. Syeda

Nuzhat Murtuza4.

8. This Court after considering the submissions notices that

the suit itself is filed for a declaration and recovery of possession.

In the interlocutory application filed, I.A.No.315 of 2015, as

mentioned earlier except in the penultimate para, absolutely no

details are given of the alleged attempts of the respondents to

alienate the property. As per settled law, a person is not

prohibited from dealing with his property merely because a suit or

claim is pending. If the sale was being made for extraneous

reasons or for a very low price etc., to defeat the opposite parties

rights; to create third party interest etc., appropriate action can be

taken as per law. The details mentioned in the affidavit are very

sketchy and do not in the strict sense offer a cause for granting an

injunction. Both the Division Bench judgments relied upon by the

AIR 2009 SC 1593

2017 (5) ALD 348

AIR 1975 AP 187

2005 (5) ALT 493

respondents namely Nawab Mir Barkat Ali Khan (3 supra) and

also Syed Mubasheruddin Ahmed (4 supra) come to the aid of

the respondents. Both the Benches clearly held that there should

be sufficient pleading and the Court should consider the existence

of a prima facie case, balance of convenience and irreparable

injury. It is also clear as the defendants in the suit are in

possession of the property; the prayer is made for recovery of

possession. As far as alienation or proposed alienation is

concerned, absolutely no details are forthcoming for this Court to

agree that there is likelihood of a third party interest being

created. No details much less clear details are furnished to show

that the property is being alienated.

9. In the opinion of this Court, the trial Judge had considered

all the aspects in his own fashion before coming to the final

conclusion that no injunction is necessary.

10. This Court therefore does not find any merit in CMA.No.1109

of 2017 and it is dismissed.

11. CMA.No.1143 of 2017 is filed on the very same set of facts

and asking the appointment of a receiver.

12. Learned counsel for the appellants relied upon Parmanand

Patel (1 supra) for the appointment of a receiver. It is also

pointed out that appointment of a receiver is an extraordinary

remedy which can only be granted if there are clear allegations

that the property is being wasted, not taken care of etc. He

points out that the affidavit filed is bereft of details.

13. This Court after hearing both the learned counsel has to

agree that appointment of a receiver is not a normal remedy. It is

an extraordinary remedy. It requires clear pleading and proof to

show that to preserve the property from being wasted, included

etc., the appointment of receiver is necessary. The leading

judgment on the said issue is T.Krishnaswamy Chetty v.

C.Thangavelu Chetty5.

14. Apart from this, this Court notices that in the application

filed in I.A.No.362 of 2015 up to para 14 only there is a

description of acquisition of property etc. So also in para 15,

there is a prayer that the respondents are alienating the property.

Thereafter, in para 16 onwards, a prayer is made for appointment

of a receiver to take over possession of the property.

15. In the opinion of this Court, the submission made that there

are no details whatsoever of waste etc., is clear and striking. The

leading judgment of T.Krishnaswamy Chetty (5 supra) is still the

1954 SCC Online Madras 374

authority in the field. The conditions set out therein are have to

be followed before any relief is claimed.

16. In the case on hand, the need or necessity for appointing of

the receiver is not spelt out anywhere with clarity.

17. This Court does not find any error in the order passed by the

learned trial Court in dismissing these two applications.

18. Hence, CMA.No.1143 of 2017 is also dismissed.

19. For the reasons mentioned above, both the CMAs are

dismissed. No order as to costs. As a sequel, the miscellaneous

petitions if any shall stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J

__________________________________ DUPPALA VENKATA RAMANA, J

Date: 21.09.2023 KLP