Sh. Ramnik Gupta vs Ms. Sneh Lata Gupta Through L. Rs. & ...
2001 Latest Caselaw 682 Del

ORDER

Devinder Gupta, J.

1. Order passed on 23.1.2001 by learned Single Judge on an application filed by Satinder Singh Chhabra (respondent No. 13) directing him to be imp leaded as one of the defendants in the suit is under challenge by he appellant. The appellant is defendant No. 1 in the suit. Needless to add that plaintiff has not challenged the order of impleadment.

2. Facts in brief are that on 5.4.1983 respondent No.1, one of the daughters of late Shri B.D. Gupta filed a suit against 13 defendants claiming decree for partition, permanent injunction and rendition of accounts with respect to the estate left by deceased Shri B.D. Gupta. Along with the suit an application (I.A. 1546/83) was also field under 40 Rules 1 CPC read with Order 39 Rules 1 & 2 and Section 151 CPC praying for appointment of Receiver and for issuing order of restraint with respect to properties as described in Schedules A, B & C attached to the plaint. The prayer clause of the application reads as under:-

"It is, therefore, prayed that during the pendency of the suit in the interest of justice and in order to preserve the properties from being alienated the following reliefs amy be granted to the plaintiff:-

i) A Receiver may be appointed with direction to take charge and control of all the properties mentioned in the Schedules ABC in the plain annexed to the plaint and the Receiver may also be directed to deposit the rent in court and prosecute the legal cases and take custody and charge of M/s. Gupta Sports House form deft. No. 1 and 2 and their attorneys, representatives and family members.

ii) Defendants 1, 2, 6, 7, 9 and 11 may be restrained by an ex-parte ad-interim injunction form dispossessing the plaintiff form the portion of the house No. 13, Jain Mandir Road, New Delhi as shown red in plain annexed to the plaint and throwing away her goods particularly the three alimirahs and the cooler placed at the marks XYZ and ZI in the plan, kitchenwares and obstructing her from using the common passage, common bath room, and enjoyment of other common facilities; and

iii) Defendants be also restrained from alienating and transferring the properties left by the deceased Shri B.D. Gupta as mentioned in Schedules ABC annexed to the plaint and transferring the tenancy right and the goodwill of the shop M/s. Gupta Sports House, 25-F, Connaught Place, New Delhi.

iv) Any other order or direction this Hon'ble Court may deem fit and proper in the circumstances of the case be also passed."

3. The aforementioned application came up before the Court on 3.6.1983. The application was adjourned to 14.7.1983 for hearing arguments and in the meanwhile it was directed that there shall be no parting with possession or alienation of properties. Status quo was directed to be maintained by the parties. Arguments on the applications were heard. Orders on the said applications were passed on 17.2.1984. The application (I.A. 1546/83) was allowed and a Receiver was appointed to collect rents form all the tenants, maintain accounts and make disbursement regarding expenditure of the property. The Receiver was to be named on 21.2.1984 to which date the case was adjourned.

4. On 13.7.1993 an application (I.A.7316/93) was filed under Order 1 Rules 10 CPC by Satinder Singh Chhabra for being imp leaded as a defendant in the suit on the ground that by various sale deeds executed by defendants 6 and 7 and by Shri Sandeep Gupta, s/o Late Shri S.K. Gupta (defendant No.2) he had purchased their undivided share in various properties, which are the subject matter of the suit and further stated that apart form the sale deeds various agreements to sell had also been entered into between him and defendants 6 and 7. Shri Sandeep Gupta and Shri Jai Deep Gupta. the application was vehemently opposed by defendant No.1. The main ground on which the application was opposed by defendant No.1 was that there was an order of restraint against alienation which had been passed by the court and which had continued to remain in force, therefore, alienation, if any, even with respect to the shares of defendants 6 and 7 and of Sandeep Gupta was void. No right, title or interest can be said to have been acquired by the applicant on the basis of the alleged alienation, therefore, applicant had no right to be imp leaded as a party.

5. Learned Single Judge by the impugned order held that prima facie injunction granted on 3.6.1983 was not continued, therefore, the applicant was in a position to purchase the share of defendants 6 and 7 as well as of legal representatives of defendant No.2 in respect of the property and accordingly ordered impleadment of Satinder Singh Chhabra as one of the defendants.

6. In appeal, challenge by defendant No.1/appellant to the impugned order is also one the same ground that order of injunction had in fact been continued. The application (I.A.1546/83) for appointment of Receiver was allowed on 17.2.1984. Appointment of a Receiver is one of very strict remedies as per the Code and it is highly improbable that the Court had no intention not to continue the restraint order against alienation. Learned counsel for the appellant also referred to the order passed on 20.5.1993 on I.A.4972/93. It was an application filed by the Receiver on 20.5.1993 bringing it to the notice of the Court that there has been willful disobedience and violation of the courts's order dated 3.6.1983 and 17.2.1984 wherein it was directed that there shall be no parting with possession or alienation of properties and the status quo be maintained by the parties. It was urged that on that date learned counsel for defendants 6 and 7 did not apprise the Court of the alienation and it is for that reason that on that day learned Single Judge clarified that there shall be no parting with possession or alienation of properties by any party till further orders. Relying upon the decision of Supreme Court in Surjit Singh and Others etc. Vs. Harbans Singh and others etc. AIR 1996 SC 35 it was further contended that alienation in defiance of the restraint order being void in law the impugned order impleading respondent No. 13 is liable to be set aside.

7. Mr. Vipin Sanghi appearing for respondent No. 13 (the newly added defendant) supported the order urging that when on the strength of the order passed on 20.5.1993 the possession of respondent NO. 13 was sought to be disturbed necessity arose for filing an application seeking impleadment (I.A.7316/93). Simultaneously another application (I.A.7317/93) was also filed by respondent No. 13 under Section 151 CPC seeking clarification of the order passed on 20.5.1993 that the same does not entitle or empower anyone including Receiver appointed by the Court to foraobly evict any person including respondent No. 13 from any portion of the suit property. Mr. Sanghi contended that interim order dated 3.6.1983 was not extended by the Court and while disposing of the application one of the reliefs, if not granted will be deemed to have been declined.

8. We have considered the respective submissions made at the bar and have gone through the record.

9. On 3.6.1983 the following order was passed by the Court:-

"As agreed between the counsel for the parties adjourned to 14th July, 1983 on which date arguments will be heard.

In the meanwhile it is directed that there shall be no parting with possession or alienating of the properties and the status quo shall be maintained by the parties."

10. Plaintiff's application seeking appointment of Receiver and issuing order of restraint (I.A.1546/83) was heard Along with two other application (I.A.2129/83 & I.A.3563/83). These applications were finally disposed of on 17.2.1984. In the order disposing of the applications learned Single Judge noted separately the precise reliefs prayed in the three applications. In para 6 of the order learned Single Judge noticed that in I.A.1546/83 three separate orders have been prayed: (a) appointment of Receiver with the direction to take charge and control of all the properties mentioned in Schedules A, B & C to collect rent and to deposit the same in Court, prosecute legal cases and take custody and charge of M/s. Gupta Sports House form defendants 1 & 2 (b) issue temporary injunction restraining defendants 1 to 6, 7, 9 and 11 form dispossessing from portion of House No. 13 and (o) injunction restraining defendants from alienating or transferring the properties left by Shri. B.D. Gupta. Along with the prayers mentioned in the three applications learned Single Judge also noticed the pleadings of the parties and ultimately came to the conclusion that it will be necessary to appoint a Receiver and accordingly proceeded to pass an order directing appointment of Receiver which was to be name don 21.2.1984 with power to collect rent form all tenants, maintain accounts and make disbursement regarding expenditure of the properties. Learned Single Judge also specifically stated in his order that the injunction already issued in I.A.2129/83 is made absolute till decision of the suit since that was absolutely necessary to protect the interests of the respondents. All applications stood disposed of by this order. Nothing is stated in the said order as to whether the order passed on 3.6.1983 was or was not made absolute. Nothing is stated in the said order as regards restraint on alienation on any of the parties to the suit.

11. In view of the above factual position when nothing is stated in the order disposing of the application the mere fact that the order says that the application (I.A.1546/83) is allowed the same will not amount to granting all the prayers made therein. The application will be deemed to have been allowed only to the extent as has expressly been stated in the order, namely, allowing the first prayer of appointment of Receiver and that also to the extent aforementioned. Even with respect to prayer for appointment of Receiver, full prayer was not allowed. It was allowed only to a limited extent. Third prayer specifically was for a restraint order prohibiting parties to the suit to alienate the property. Since nothing is stated in the order as regards alienation it will be presumed that application to that extent stood rejected or in any case prayer to that extent was declined. Had it been the intention to continue with the injunction, similar order as was passed in I.A.2129/83 would have been passed by making the order of 3.6.1983 absolute. Since it was not done, we are of the view that learned Single Judge was perfectly justified in concluding that prima facie injunction granted on 3.6.1983 was not continued and therefore, respondent NO. 13 was in a position to purchase the share of defendants 6 and 7 as well as of legal representative of defendant No. 2

12. No other point was urged before us. We find no force in the appeal which is hereby dismissed.