Dev Prakash And Anr vs Smt. Indra And Ors
2024 Latest Caselaw 8649 Raj

Rajasthan High Court - Jodhpur

Dev Prakash And Anr vs Smt. Indra And Ors on 1 October, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:38140]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil Misc. Appeal No. 913/2015

1. Dev Prakash S/o. Heera Lal Soni, aged 45 years,
2. Rameshwar adopted son of Vasudeoji Soni, aged 57 years,
        Both are resident of In front of Sunaron Ki Panchayat
Bhawan, Old Jail Road, Bikaner.
                                                                       ----Appellants
                                        Versus
1. Smt. Indra D/o. Late Prabhu Dayal W/o. Manoj Kunar Soni, R/
o. Gali No. 7, Near Jail Tank, Bikaner.
2. Bindu D/o. Prabhu Dayal, R/o. Near Kanwarji Temple, Mudia
Malion Ka Mohalla, Sunaraon Ki Badi Guwad, Bikaner. (Deleted
vide order dated 24.07.2019)
3. Teena D/o. Prabhu Dayal W/o. Mahesh Kumar Soni, R/o. In
front of Luharon Ki Masjid, Bikaner.
4. Pinki D/o. Prabhu Dayal, W/o. Praveen Kumar Soni, C/o.
Poonam        Chand         Soni,       Praveen          Soni,       Nirnay   Nagar,
Sector-8/AG/11, B-9-12, Ahmedabad.
5. Rubi D/o. Prabhu Dayal, W/o. Yogesh Kumar Soni, R/o. Rangdi
Chowk, Bikaner.
6. Smt. Asha Devi W/o. Prabhu Dayal Soni, Sunaron Ki Badi
Guwad, Bikaner.


                                                                     ----Respondents
                                  Connected With
                     S.B. Civil Misc. Appeal No. 958/2015
1. Dev Prakash S/o. Heera Lal Soni, aged 45 years,
2. Rameshwar adopted son of Vasudeoji Soni, aged 57 years,
        Both are resident of In front of Sunaron Ki Panchayat
Bhawan, Old Jail Road, Bikaner
                                                                       ----Appellants
                                        Versus
1. Smt. Indra D/o. Late Prabhu Dayal W/o. Manoj Kunar Soni,
R/o Gali No. 7, Near Jail Tank, Bikaner.
2. Bindu D/o. Prabhu Dayal, R/o. Near Kanwarji Temple, Mudia
Malion Ka Mohalla, Sunaraon Ki Badi Guwad, Bikaner. (Deleted

                         (Downloaded on 03/10/2024 at 09:52:06 PM)
 [2024:RJ-JD:38140]                     (2 of 23)                         [CMA-913/2015]


vide order dated 24.07.2019)
3. Teena D/o. Prabhu Dayal W/o. Mahesh Kumar Soni, R/o. In
front of Luharon Ki Masjid, Bikaner.
4. Pinki D/o. Prabhu Dayal, W/o. Praveen Kumar Soni, C/o.
Poonam         Chand       Soni,       Praveen          Soni,       Nirnay     Nagar,
Sector-8/AG/11, B-9-12, Ahmedabad.
5. Rubi D/o. Prabhu Dayal, W/o. Yogesh Kumar Soni, R/o. Rangdi
Chowk, Bikaner.
6. Smt. Asha Devi W/o. Prabhu Dayal Soni, Sunaron Ki Badi
Guwad, Bikaner.
                                                                    ----Respondents


For Appellant(s)             :     Mr. JL Purohit (Sr. Adv.) with Mr.
                                   Rajeev Purohit
For Respondent(s)            :     Mr. Nishank Madhan



                HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

Reserved on: 10/09/2024 Pronounced on: 01/10/2024

1. These misc. appeals are filed by the appellants/defendants

under Order 43 Rule 1(s), Civil Procedure Code, 1908 (hereinafter

as 'CPC') against the orders dated 25.04.2015 passed by the

Additional District Judge No. 3, Bikaner (hereinafter as 'the trial

court') in Civil Misc. Case No.(s) 12/2015 and 13/2015

respectively, whereby the learned trial court has allowed

applications filed by the respondent no. 1 to 5 under Order 39 rule

1 & 2 read with Section 151 of the CPC and Order 40 Rule 1 read

with Section 151 of the CPC respectively.

2. Briefly stated, the facts of the case are that on 10.02.1995

the partnership firm- M/s Chandratan Heeralal, Luharon ka

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Muhalla, Naya Kuan, Bikaner(hereinafter as 'the firm') was created

between Late Prabhu Dayal (hereinafter as 'deceased partner')and

Mr. Dev Prakash (hereinafter as 'Appellant no. 1') and a

partnership deed was executed between them on 15.08.1995 and

they both had equal partnership in the properties of the firm. The

firm was registered with Registrar of firms and a license under The

Rajasthan Shops and Commercial Establishments Act,1958 was

also taken. The immovable property(at Luharon ka Muhalla, Naya

Kuan, Bikaner) at which firm is situated was an immovable

property of the deceased partner, which he inherited from his

grandfather as part of his share in the ancestral property.

Thereafter, on 30.05.2014 the deceased partner met his demise.

Afterwards, when the legal representatives (respondents herein)

of the deceased partner went to the firm to take care of the

properties of the firm, they got to know that the appellant no. 1

has recreated the firm (after its dissolution as a result of the death

of the deceased partner) with Appellant no. 2 as the new partner.

The respondents approached the appellant no. 1 to get their share

in the properties of the firm, which they claimed in the capacity of

legal representatives of the deceased partner and also to get back

the immovable property on which the premises of the firm is

situated as being a personal property of the deceased partner.

However, the appellant no. 1 communicated to them that the firm

has been recreated therefore, the respondents have no share in

the firm. Thus, a dispute arose between the parties and the

respondent nos. 1 to 5(Plaintiffs) filed the suit for permanent

injunction along with two applications- Civil Misc. Case No.(s)

[2024:RJ-JD:38140] (4 of 23) [CMA-913/2015]

12/2015(application under Order 39 Rule 1 & 2, CPC) and

13/2015(application under Order 40 Rule 1,CPC) before the

learned trial court.

3. It was contended by the respondent nos. 1 to 5 before the

learned trial court that the immovable property on which the firm

was working does not belong to the firm and rather it is the

personal property of the deceased partner which was given by him

to the firm for operation of the firm business. However, when the

respondents approached the appellant no. 1 for the immovable

property of the deceased partner and their share in the properties

of the firm(in capacity of the legal representatives of the deceased

partner) they were told by the appellant no. 1 that they have no

share in the properties of the firm.

4. It was contended by the respondent nos. 1 to 5 before the

learned trial court that the appellants herein have no right to use

the properties of the dissolved firm as well as the income earned

from the use of it as records of accounts of the dissolved firm was

not available. Further, they contended that the appellants herein

were not justified in using the goodwill of the firm without the

consent of the legal representatives of the deceased partner. Thus,

the respondent nos. 1 to 5 sought temporary injunction and

appointment of receiver by citing grounds of balance of

convenience and to avoid irreparable damage to the immovable

and movable properties of the firm.

5. It was contended by the appellants herein in their reply to

the applications before the learned trial court that the firm is a

family partnership which was created in the year 1962 by

[2024:RJ-JD:38140] (5 of 23) [CMA-913/2015]

Heeralal(Father of the appellant no.1) and Chandratan(father of

the deceased partner) and all the machineries and other things of

the firm were bought by Heeralal and Chandratan. It was further,

contended by the appellants herein before the learned trial court

that the immovable property on which the firm is working was not

a personal property of the deceased partner rather it is in the

name of Late Kodu Ram (Grandfather of appellant no. 1 and the

deceased partner) and vide decree dated 13.05.2003, in a suit for

partition (Civil Case no. 180/1996), a share of 1/6 was decreed by

the learned Additional District Judge no. 1, Bikaner amongst the 6

heirs of the Late Kodu Ram, and as a result the deceased partner

along with his 2 siblings got 1/6 share. It was also stated by the

appellants herein before the learned trial court that the counter

claim filed by the deceased partner in Civil Case no. 180/1996 was

rejected, against which an appeal no. 209/2003 was preferred by

the deceased partner before this Court, which is still pending.

6. It was contended by the appellant no. 1 herein before the

learned trial court that after the death of the deceased partner,

the appellant no. 1 has given Rs. 1,20,000/- in cash to respondent

no. 6 (wife of the deceased partner), after settling the accounts of

the earlier firm, and also requested her to inform him about her

remaining share as per the records of accounts of the firm, which

are with her and to which she agreed. And only after the full

satisfaction of the respondent no. 6 with respect to the settlement

of the accounts, the new partnership was created on 01.07.2014.

However, later on respondent no. 6 along with other

respondents(Plaintiffs) came to the premises of the firm and

[2024:RJ-JD:38140] (6 of 23) [CMA-913/2015]

interrupted the business of the firm by stating that she is the

partner of the firm and also filed false cases against the

appellants, with a motive to create pressure upon the appellants

herein. And against such interruptions in the workings of the firm

by the respondent no. 6, the appellants herein filed a suit no.

272/2014 before the Civil Judge, Bikaner for injunction against the

respondent no. 6 to restrain her from hindering the

working/business of the firm, which was allowed by the court and

a temporary injunction was granted against respondent no. 6

restraining her from hindering the business of the firm.

7. It was further contended by the appellants herein before the

learned trial court that the respondent nos. 1 to 5(Plaintiffs) have

filed the suit for declaration of their share in the firm however,

neither the firm has been impleaded as a party nor the appellants

have been impleaded in the capacity of the partners of the firm. It

was also contended by the appellants herein before the learned

trial court that the settlement of the accounts of the firm has

already been done with the respondent no. 6 and the immovable

property, where the firm is situated, does not belong to the firm

and rather is the ancestral property of the appellant no. 1 and the

respondents.

8. It was also contended by the appellants herein before the

learned trial court that a partnership firm is a contract between

two partners and question of right of inheritance does not arise.

And the legal representatives of the deceased partner do not have

any right to a share in the partnership firm. Moreover, the

respondents herein have never specified their share in the firm or

[2024:RJ-JD:38140] (7 of 23) [CMA-913/2015]

tendered the accounts of the properties that were put in the firm

and also the partnership deed that has been produced does not

contain mention of the properties of the firm. It was also alleged

by the appellants before the learned trial court that the

respondents herein do not have any right in the immovable

property or the properties of the firm after the death of the

deceased partner as the immovable property is an ancestral

property and a lis with respect to its partition is sub-judice.

9. After hearing arguments of both the parties the learned trial

court vide two separate orders dated 25.04.2015 allowed both the

applications - Civil Misc. Case no. 12/2015 and 13/2015

respectively filed by the respondent nos. 1 to 5(Plaintiffs) and

issued temporary injunction against the appellants herein to

restrain them from using and alienating the properties of the firm

and the immovable property as mentioned in the plaint of the

respondent nos. 1 to 5(Plaintiffs) and also appointed a receiver

with the consent of the parties with direction to the appointed

receiver to take into his custody the properties of the firm and to

restrain any of the parties to use such properties and to preserve

the same till the disposal of the main suit or passing of any other

order in this regard. And the counter claim of the appellants

herein was rejected.

10. Aggrieved by these orders present appeals have been filed

by the Appellants.

11. The learned counsel appearing on behalf of the appellants

submitted that the respondents have failed to make out any case

for appointment of receiver as well as grant of injunction in their

[2024:RJ-JD:38140] (8 of 23) [CMA-913/2015]

favour. He further submitted that a receiver cannot be appointed

merely because it is expedient or convenient to one of parties to

do so and the plaintiffs must not only show a case of adverse and

conflicting claims to property, they must further show some

emergency or danger or loss demanding immediate action and

further the plaintiffs own right must be reasonably clear from

doubt, which the respondents have failed to do. He also submitted

that the findings of the learned Trial Court on the question of

balance of convenience and irreparable loss are wrong as the

respondents have failed to establish their right over the property.

The properties are ancestral for which the appeal is pending

before this court. He further submitted that the appellants are

doing their business and in case the stay order granted by the

learned trial court is continued they will suffer irreparable loss

which will cause great hardship to the them.

12. The learned counsel appearing on behalf of the appellants

also submitted that the appointment of receiver pending a suit is a

matter resting in the discretion of the court but the discretion

cannot be exercised arbitrarily or in an unregulated manner, it

must be exercised judicially, cautiously and according to legal

principles on a consideration of the whole of the circumstances of

the case. He submitted that the court should not appoint a

receiver except upon proof by the plaintiff that he has a prima

facie case and has a very excellent chance of succeeding in the

suit, which the respondents have failed to do. He further

submitted that an order of appointing a receiver will not be made

where it has the effect of depriving a defendant of a de-facto

[2024:RJ-JD:38140] (9 of 23) [CMA-913/2015]

possession since that might cause irreparable wrong. It would be

different where the property shown to be in medio i.e. to say, in

the enjoyment of no one, which is not the case in the present

matter. Thus, the order for the appointment of receiver cannot be

sustained.

13. The learned counsel appearing on behalf of the appellants

submitted that respondent nos. 1 to 5 have filed a suit claiming

1/2 share in the properties of the firm however, on account of the

death of the deceased partner the firm stood dissolved. He further,

submitted that admittedly respondent nos. 1 to 5 have not

impleaded firm as a party nor the Appellant no.1 herein

(defendant no. 1 in the suit) or the appellant no. 2 herein

(defendant no. 2 in the suit) have been impleaded in the capacity

of the partner of the firm therefore, suit as filed by them is not

maintainable.

14. The learned counsel appearing on behalf of the appellants

submitted that the firm was working on the immovable property,

which is an ancestral property. And it is an admitted position that

a partition suit was filed between the successors of Kodu Ram and

in that suit 1/6th share of Chand Ratan(father of the deceased

partner) was determined and appeal against the preliminary

decree granted by the Trial Court is pending before the this Court,

therefore, on the face of these facts the ownership of the

deceased partner over the property is not established. Moreover,

there is no recital in the partnership deed that immovable

property was included by the deceased partner. He also submitted

that the movable property of the firm, as per the inventory

[2024:RJ-JD:38140] (10 of 23) [CMA-913/2015]

prepared by the Court Commissioner, are all machines and

equipments for the purpose of polishing the ornaments or utensils

and these properties are ancestral properties which were

purchased by the partners who constituted a firm in 1962 and

none of the properties mentioned in the inventory were purchased

by the deceased partner. The fact that these properties are

ancestral has not been denied by the respondents and thus, claim

of the respondents over the immovable property and the

properties of the firm cannot be accepted and once it is

established that the respondents have no right over the properties

of the firm as well as the immovable property then in that

circumstances the learned trial court had no jurisdiction to grant

injunction in favour of the respondents as well as to appoint a

receiver.

15. The learned counsel appearing on behalf of the appellants

submitted that in the present suit plaintiffs have claimed 1/2 share

in the properties of the deceased partner or of the firm however,

the learned trial court misconstrued the prayer made in the paint

and came to the conclusion that present suit is for dissolution and

for rendition of accounts after winding up the firm whereas there

is no such prayer in the plaint, therefore, the finding given by the

court below is perverse.

16. The learned counsel appearing on behalf of the appellants

submitted that the respondent nos. 1 to 5 have come with a case

that properties mentioned in Para No. 10 of the plaint is the

property of the deceased partner as an owner and they have not

claimed their rights on the basis of the provisions of Indian

[2024:RJ-JD:38140] (11 of 23) [CMA-913/2015]

Partnership Act. He also submitted that in the suit no. 272/2014

filed by the appellants herein against the respondent no. 6, the

court has already granted injunction in favour of the appellants

restraining respondent no. 6 from interfering in the working of the

firm and the appeal filed against this order was also dismissed

therefore, the finding of the learned trial court declaring right to

demand the accounts of the firm is perverse.

17. The learned counsel appearing on behalf of the appellants

submitted that the finding of the learned trial court that the

immovable property will be treated as property of the firm as the

same was used by the firm for its business purposes, is wrong.

The property used by the firm for its business purposes is an

ancestral property for which the partition suit/appeal is still

pending. Therefore, it cannot be treated to be the property of the

firm.

18. The learned counsel appearing on behalf of the appellants

placed reliance on the following judgments:

C.D. Grover and Ors. vs. Ashok Kumar[AIR 1997 Raj 281], Dhokal

Singh v Ridhmal[1955 0 RLW (Raj) 346], Dilman Rai Vs.

Srinarayan Sharma and Ors. [AIR 1983 Sik 11], Gumanlal v

Shambulal[1955 0 RLW (Raj) 20], Jagannath Parulekar Vs. Uday

Mandrekar [AIR 1976 Goa, Daman and Diu 70], Jai Narayan Misra

Vs. Hashmathunnisa Begum [AIR 2002 AP 389], Mohd. Laiquiddin

and Ors. Vs. Kamala Devi Misra (Dead) by L.Rs. and Ors. [(2010)

2 SCC 407].

[2024:RJ-JD:38140] (12 of 23) [CMA-913/2015]

19. Per contra, the learned counsel appearing on behalf of the

respondents submitted that the firm was created on 15.08.1995

between the deceased partner and appellant no.1 and the

partnership deed was executed. Thus, the contention raised on

behalf of the appellants that the partnership firm was established

by their ancestors way back in 1962 is not correct as no

documentary evidence regarding the same has come on record.

20. The learned counsel appearing on behalf of the respondents

submitted that after the death of the deceased partner, the firm

stood dissolved in light of section 42 of the Indian Partnership Act,

1932 moreover, according to section 46, on the dissolution of a

firm every partner or his representative is entitled, as against all

the other partners or their representatives, to have the property of

the firm applied in payment of the debts and liabilities of the firm,

and to have the surplus distributed among the partners or their

representatives according to their rights. He also submitted that

as per section 53, after a firm is dissolved, every partner or his

representative may, in the absence of a contract between the

partners to the contrary, restrain any other partner or his

representative from carrying on a similar business in the firm

name or from using any of the property of the firm for his own

benefit, until the affairs of the firm have been completely wound

up. However, after the dissolution of the firm, the winding up of

the firm was not done in accordance with the provisions of the Act

and instead, the appellant no. 1 immediately thereafter created a

new firm with appellant no. 2 as partner in name of the previous

firm and started using premises, properties and the goodwill of the

[2024:RJ-JD:38140] (13 of 23) [CMA-913/2015]

firm without the consent of the respondents which is contrary to

Ss. 14 and 15 of the Act.

21. It was further submitted by the learned counsel appearing on

the behalf of the respondents that the submission of the

appellants that they have given Rs 1,20,000 to Respondent no. 6

as settlement of the accounts of the dissolved firm is not correct

as there is no documentary evidence pertaining to the same as

available on the record.

22. The learned counsel appearing on behalf of the respondents

submitted that the appellants themselves have accepted the share

of the deceased partner in the immovable property in their reply

before the learned trial court.

23. It was further submitted by the learned counsel appearing

on the behalf of the respondents that the appellants had been

continuously using the property and goodwill of the firm as well as

the immovable property since the death of the deceased partner.

Hence, this act has led to irreparable loss and damage to the

respondents. Therefore, the impugned order passed by the

learned trial court is correct in law.

24. The learned counsel appearing on the behalf of the

respondents has placed reliance on the following judgments:

Rajendra Kumar Sharma Vs. Brijendra Kumar Sharma and Ors.

[AIR 1994 All 62], Nihalchand L. Jai Narain and Ors. Vs. Ram

Niwas Munna Lal and Ors. [AIR1968P&H523 ], Mohd. Laiquiddin

and Ors. Vs. Kamala Devi Misra (Dead) by L.Rs. and Ors. [(2010)

2 SCC 407], Sheonarian Jaiswal v Shree Kripa Shankar

Jaiswal[1972 0 AIR(Pat) 75], Tilak Chand Jain Vs. Darshan Lal

[2024:RJ-JD:38140] (14 of 23) [CMA-913/2015]

Jain and Ors.[AIR 1985 J&K 50], Smt. Jayamma v. Adhyaksha,

Zilla Panchayat, Mandya District[2009 SCC OnLine Kar 108].

25. Heard the parties and perused the material available on

record. The appellants herein have preferred these appeals with

following prayers respectively:

" In S.B. Civil Misc. Appeal No. 913/2015:

It is therefore, humbly and respectfully prayed that the appeal

filed by the appellants may kindly be allowed and the judgment of

the learned Trial Court dated 25.04.2015 in Civil Misc. Case No.

13/2015 passed by the learned Addittional District Judge No. 3,

Bikaner may kindly be quashed and set aside.

Cost of this appeal may kindly be awarded in favour of the

appellants.

In S.B. Civil Misc. Appeal No. 958/2015:

It is therefore, humbly and respectfully prayed that the appeal

filed by the appellants may kindly be allowed and the judgment of

the learned Trial Court dated 25.04.2015 in Civil Misc. Case No.

12/2015 passed by the learned Addittional District Judge No. 3,

Bikaner may kindly be quashed and set aside and the injunction

as prayed by the appellants may be granted.

Cost of this appeal may kindly be awarded in favour of the

appellants."

26. The crux of the matter is that the respondent nos. 1 to

5(Plaintiffs) filed a suit in which they prayed that a decree may be

passed in favour of the respondents and against the appellant nos.

[2024:RJ-JD:38140] (15 of 23) [CMA-913/2015]

1 and 2 regarding the partnership deed which was executed on

15.08.1995 between the deceased partner(Prabhu Dayal) and

appellant No. 1(Dev Prakash). After the death of the deceased

partner, it was prayed that the property where from the firm-M/s

Chandratan Heeralal was doing its business is of the deceased

partner, and if this property is not declared as the property of

deceased partner, then it may be declared as belonging to the

firm, and the respondents No.1 to 5/plaintiffs and respondent

No.6/defendant No.3 may be allowed 1/2 portion each in movable

and immovable properties of the firm.

27. During the course of the suit, the respondent nos. 1 to 5

filed an application under Order 39, Rule 1 & 2 read with section

151, CPC for temporary injunction and also filed another

application under Order 40 Rule 1 read with section 151, CPC for

appointment of receiver. The purpose of temporary injunction and

appointment of receiver being interim orders is to preserve the

relief while the suit remains pending and thus, both the remedies

at an interim stage provide for a protection of the relief until the

final decree is passed.

28. The applications for appointment of receiver and temporary

injunction respectively have been allowed and the appellants

herein have been restrained from illegally using the properties of

the firm and thereby causing financial loss to the respondents and

the same have been challenged by the appellants herein before

this court.

29. This court while hearing both the parties on 28.05.2015

observed that looking into the close relationship between the

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parties, the matter is to be referred to Mediation Centre and also

ordered that while the parties conduct such mediation

proceedings, the effect and operation of the impugned orders

dated 25.04.2015 shall remain stayed and the possession of the

suit property shall remain with the appellants herein(defendant

nos. 1 and 2) who were running the business in the name of the

firm(M/s Chandratan Heeralal) in the suit premises.

30. The interim order dated 28.05.2015 in the S.B. Civil Misc.

Appeal No. 913/2015 reads as under:

"Looking to the close relationship between the parties and the dispute of property in a partnership firm where the business is carried out by the defendants now after the death of plaintiff's father namely, Prabhu Dayal, the matter deserves to be settled amicably through mediation, therefore, the matter is referred to the learned Mediation Centre attached with this Court.

The parties may appear before the trained Mediator on 14.07.2015. Both the learned counsels will ensure the presence of both the parties before the learned Mediator on the given date or dates for arriving at a mutual and amicable settlement of the dispute.

The learned Mediator is granted six week's time for exploring the possibilities of mutual and amicable settlement of the dispute between the parties. The matter may again be listed before the Court on 07.09.2015 Till then, the operation and effect of the impugned order dated 25.04.2015 shall remain stayed and the possession of the suit property which may be with the Receiver Shri Brij Ratan Vyas, Advocate, may be handed over back to the appellants- defendants, who were running the business in the name and style of M/s Chandratan Heeralal in the suit premises, since the point of time of death of Shri Prabhu

[2024:RJ-JD:38140] (17 of 23) [CMA-913/2015]

Dayal, father of the plaintiffs subject to final decision of this appeal."

31. A co-ordinate bench of this court has also passed an interim

order in the S.B. Civil Misc. Appeal No. 958/2015 vide order dated

29.05.2015, wherein the interim order dated 28.05.2015 passed

in S.B. Civil Misc. Appeal No. 913/2015 was made applicable to

S.B. Civil Misc. Appeal No. 958/2015 as well. The same is

reproduced as under:

"The parties are present in person. Heard the parties, as the lawyers are observing strike on the last working day of the months.

In identical and connected civil misc. appeal, being S.B.C.M.A. No.913/2015-Dev Prakash & Anr. Vs. Smt. Indra & Ors., this Court has already passed a detailed order yesterday on 28.05.2015, a copy of which may be placed in the present case-file. and this Court has referred the dispute between the parties to the Mediation Centre attached to this Court, where the parties to the suit have been directed to appear in person before the learned Mediator on 14.07.2015 for amicable settlement of the dispute. The parties present today in the Court have assured the Court that they will remain present before the learned Mediator on 14.07.2015.

The present appeal has been filed by the appellants/defendants assailing the order dated 25.04.2015 passed by Addl. District Judge No.3, Bikaner, whereby application filed by the plaintiffs/respondents under Order 39 Rule 1 and 2 CPC has been allowed granting temporary injunction, whereby the defendants/appellants have been restrained from using the suit property for running their business in the name and style of M/s Chandratan Heeralal, and from selling or alienating the same.

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Yesterday. this Court in SBCMA No.913/2015-Dev Prakash & Anr. Vs. Smt. Indra & Ors., has already stayed the operation of the order dated 25.04.2015 passed by the court below whereby the learned trial court had restrained the defendants/appellants from working in the business firm M/s Chandratan Heeralal and the suit property was directed to be handed over to Receiver, Sh. Brij Ratan Vyas, Advocate; and allowed the defendants to carry on their business.

Having heard both the parties, who are present in person today it is directed that the aforesaid interim order passed in CMA No.913/2015 would apply to the present case also. The next date of present case is also fixed on 07.09.2015 along with that case and both the CMA(s) be tagged. The parties may also appear before the learned trained Mediator on 14.07.2015 and the parties, who are present in person, have assured the Court that they will try their level best to resolve the entire dispute between them. The family members of the late Sh. Pradhu Dayal, appear to be in destitute condition as the married daughter of Sh. Prabhu Dayal, Ms. Bindu, also suffered a matrimonial dispute and is presently residing with her mother in the suit premises, which is in their possession and living in the same property will not be disturbed by the appellants/defendants and the learned Mediator/this Court would consider either payment of lump sum amount to the respondents/plaintiffs or monthly annuity.

Learned Mediator may make efforts for amicable settlement of the dispute between the parties. The parties may appear before the learned Mediator on 14.07.2015. Put up on 07.09.2015 along-with SBCMA No.913/2015- Dev Prakash & Anr. Vs. Smt. Indra & Ors. in the category of part- heard cases."

32. Thereafter, a coordinate bench of this court vide order dated

10.02.2016, modified the earlier interim orders dated 28.05.2015

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and 29.05.2015 passed in the instant appeals and ordered the

court auction of the firm property and the same is reproduced

hereunder:

"1. After prolonged hearing at interim order stage today and on earlier occasions of these two appeals against the order dated 25.04.2015 passed by the learned Additional District Judge No.3, Bikaner appointing the Receiver, Mr. Brijratan Vyas, Advocate over the suit property in question, namely a house admeasuring 29 feet x 17 feet = 505 square feet (approximately) in the main area of Bikaner, and in the present suit filed by the plaintiffs-respondents for dissolution and rendition of accounts, in respect of the Partnership Firm, M/s Chandratan Heeralal, which according to the plaintiff- respondents stood dissolved upon the death of one of the partners, Prabhudayal on 30.05.2014, and thereafter, the business of polishing of gold and silver jewellery is being carried on by the other partner, Dev Prakash with a third person, one Mr. Rameshwar, this Court is of the considered opinion that the interim order passed by this Court earlier on 28.05.2015 and on 29.05.2015 in the connected S.B.Civil Misc. Appeal No.958/2012 - Dev Prakash & Anr.Vs. Smt.Indra & Ors., when the parties had appeared in personon account of lawyers' strike on 29.05.2015, the said interim orders deserve to be modified and the suit property, namely, the aforesaid house situated on 505 square feet of land in LuharonKa Mohalla, Naya Kuan, Bikaner deserves to be put to court auction to ascertain and realize its current fair market value. Since the parties to the present dispute are also engaged in another litigation in a separate partition suit, for which, S.B. Civil First Appeal No.209/2003- Multanchand Vs. Jhanwarlal & Ors. is also pending in this Court, involving the aforesaid suit property also and the

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appointment of Receiver may unnecessarily put the suit property in a disuse.

2. Accordingly, the learned District Judge, Bikaner is directed to form a Committee of two judicial officers under him,as may be deemed appropriate by him to hold a court auction of the aforesaid suit property under this order within a period of one month from today. To meet the incidental expenses for holding the said process of court auction, both the sides are directed to deposit Rs.20,000/- (Rupees Twenty Thousand only) each with the learned District Judge, Bikaner within one week from today, for which a separate account may be maintained. 3.After holding the court auction and realization of the1/4th of the highest bid on the spot on the same day, a report of the said court auction may be sent to this Court for final approval of the auction/sale in favour of the highest bidder and further directions for realization of the remaining 3/4th amount from the auction purchaser and distribution thereof......."

33. However, the order dated 10.02.2016 passed in the instant

appeals by a coordinate bench of this court was challenged before

the Hon'ble Supreme Court in S.L.P. (C) No. 8783-84 of

2016(which was preferred by the appellants herein), wherein the

Hon'ble Supreme Court vide order dated 01.05.2017 set aside the

order dated 10.02.2016 and directed this Court to finally decide

the instant appeals expeditiously on merits. The operative portion

of the order passed by the Hon'ble Supreme Court reads as under:

"15. ....The same is set-aside. The High Court would decide the appeals on their own merits as expeditiously as possible. We make it clear that the observations made hereinabove are wholly in the context of the issue that arose in the present proceedings before this Court and the

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High Court would answer the appeals without being in any way influenced thereby."

34. This court finally heard these appeals and found that the

dispute between the appellants(defendant no.1 and 2) and the

respondents(the legal heirs of deceased partner) has to be finally

resolved in the main suit pending before the learned trial court

and until then the firm property has to be preserved and thus it is

to be examined by this court whether the preservation of such

property during the pendency of the suit requires appointment of

receiver and grant of temporary injunction or whether the same

can be achieved by passing a status quo order and directing the

trial court to expeditiously decide the suit on merits.

35. This court finds that the learned trial court has appointed the

receiver so as to protect the relief at the interim stage. The

appointment of receiver has been justified by the learned Trial

Court by giving its own reasons but without realizing that

appointment of receiver could lead to collapse of the firm or can

cause diminishing returns impacting the adjudicatory rights of

both the parties.

36. The dispute pertains to the firm (M/s Chandratan Heeralal),

which was a partnership firm between the deceased partner

(Prabhudayal) and appellant no. 1 (Dev Prakash) and the

partnership deed dated 15.08.1995 is part of the record. The

partnership deed does not indicate that the firm was in existence

before 15.08.1995 and the same also does not reflect that the

partnership was established on the basis of the ancestral property.

The immovable property was part of the firm's property and it was

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not the case of the parties that the firm was using its property for

any other purposes.

37. It was necessary for the trial court to resolve the dispute in

terms that it was a firm property with an additional factor of one

of the parties claiming that given property includes ancestral

property, requires adjudication by the trial court as to how to

determine the final rights in such context. It is, therefore,

necessary to maintain status quo regarding the firm property and

thus the learned trial court could have passed the order for

maintaining the status quo, however, the direction for

appointment of Receiver in the given circumstances appears to be

a harsh order.

38. This court also found that it is an undisputed fact that on

30.05.2014, one of the partners, Prabhu Dayal expired and as per

Section 42 of the Partnership Act, 1932 the firm got dissolved.

Therefore, the rendition of accounts was to be made and one of

the partners may not be in a position to run the firm as a sole

partner, Thus, this court is of the view that after the firm got

dissolved the rights and liabilities have to be determined and

accordingly, the distribution of assets could be done between the

parties.

39. This court finds that until the learned trial court in the main

suit decides the rights arising out of the firm property dispute

between the parties, it shall be in the best interest that the firm

property is maintained as it is.

40. It is known jurisprudence that appointment of the Receiver is

a harsh remedy and in the given circumstances, as made out,

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until the dispute is decided finally, a minimum intervention for

keeping the subject matter of the relief in status quo position

would be suffice to protect the rights of the parties.

41. Even if the property of the firm was to be divided, then also,

an interim order maintaining status quo would be suffice to

balance the equity. The matter has remained pending for

adjudication for nine years and the order of status quo already

operating would be sufficient to protect the final relief, which

would be granted by the learned trial court at the time of passing

the decree.

42. In the interest of justice, the order is interfered with only to

the extent of appointment of receiver and the same is set aside

and it is substituted by an order that the parties shall maintain

status quo regarding the property in question and they shall be

bound not to sell the property but are allowed to remain in the

manner in which it is running as on today while not putting the

property to any kind of loss so that whenever the exercise of

evidence is complete and final decree is passed, the same can be

executed upon the running property, which is the dispute in

question. The appeals are, accordingly, partly allowed.

DR. NUPUR BHATI),J

38-39-/devesh/-

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