2001 PLP 2291 (YLR)

4. That while prosecuting the F.C. Suit No.234 of 1999 the respondents moved an application under O. 40, Rule 1 read with section 151, C.P.C. On 22-5-1995 for appointment of Receiver, but the same was dismissed by the trial Court vide order, dated 29-2-2000. However the learned Appellate Court vide judgment, dated 16-5-2000 reversed the order of the trial Court by allowing the appeal and directed the trial Court to appoint the Receiver, hence this Revision Application.

5. In response to the pre-admission notice issued by this Court, the respondents have, entered their appearance, through counsel.

6. I have heard the learned counsel for both the parties at great length and have perused the record with their assistance and I am inclined to dispose of the entire Revision Application by this order.

7. Learned counsel for the respondents argued that the plaintiffs/respondents have a prima facie case. That they own the suit property, that the Court would appoint a Receiver of property if it was of the opinion that it was just and convenient to order so, and that it was in the interest of justice, to safeguard the interest of both parties. He further argued that merely because the defendant happened to be in possession was no bar to the appointment, if plaintiff on his part showed immediate right to possess. Learned counsel cited the law in support of his submissions.

8. Learned counsel for the applicants, on the other hand vehemently criticized the impugned judgment. He, inter alia, controverted that by using' the word just and convenient discretion has been conferred on Court in which the suit is pending and it has reference not to one or other party but to what Court feels to be proper in circumstances of the case. He further contended that since the Receiver disturbs the person in possession, appointment of Receiver was recognized as one of harshest remedies which law provides for enforcement of right. Learned counsel for the applicants further submitted that the plaintiff has failed to establish specific instances of alleged waste, mismanaging and misappropriating of the property. He also cited case-law in support of his submissions.

9. I have given my anxious consideration to the contentions raised by the two counsel.

10. It is an admitted fact that the parties are involved in litigation since the year 1978 and this is the second round of litigation. The suit filed by the respondents for possession by redemption is pending adjudication. The previous litigation appears to have come to an end in the year 1997 and subsequently the present suit was filed in the year 1999 viz, after 2 years.

11. There is no specific instance cited in the plaint and/or application for appointment of Receiver to the effect that the suit property was being wasted, mismanaged or mis appropriated. I am of the view that mere convenience of the plaintiff should not be a factor for the appointment of Receiver but peril to or threat of waste of property should be established, which the plaintiff has yet to establish. With utmost respect to the law cited by the learned counsel of respondents, I am of the considered view that it is not sufficient for the plaintiff to show prima facie case but further it must be shown that the property in the hands of the opposite-party was in danger of being wasted or there was an apprehension of irreparable loss or injury as well as dissipation of property.

12. Besides that, since by appointing the Receiver, the possession of a person is disturbed, it was recognized to be one of the harshest remedies, thus the same is to be exercised in extreme cases.

13. For the foregoing reasons, I am not persuaded to appoint a Receiver to take over the lands. However I would direct that the applicants/defendants shall file half-yearly accounts with the Nazir of the trial Court in respect of all the incomes and expenditures with regard to the suit property, which is under their control. Copies of such accounts shall also be supplied to the plaintiffs/ respondents who will be entitled to examine the same and if after examining such account the plaintiffs/respondents found that there is any act which amounts to waste of property, it will be open to them to file fresh application for appointment of Receiver on such ground. The revision application is disposed of in terms of above order. Keeping in view the protracted litigation between the parties, it is desired that the trial Court will make every effort to dispose of this case in an expeditious manner. H.B.T./M-225/K Order accordingly.