JUDGMENT
O.P. Garg, J.
1. By means of Civil Misc. Writ No. 6404 of 1999 under Article 226 of the Constitution of India, the order dated 9.2.1999 passed by respondent No. 1, 1st Additional District Judge, Badaun appointing Receiver in Misc. Civil Appeal No. 59 of 1992 arising out of Suit No. 65 of 1982 instituted by Shrawan Kumar, respondent No. 2 to the petition was challenged. After having heard Sri Pradeep Kumar, learned counsel for the petitioners, namely, Krishna Bhagwan Agarwal, and, Vishnu Bhagwan Agarwal ; as well as Sri Ajit Kumar, learned counsel for the plaintiff-respondent No. 2, Shrawan Kumar Agarwal, the writ petition was finally disposed of on April 19, 1999 by an elaborate and detailed order after consideration of the law cited on behalf of the rival parties. The order of appointment of receiver passed by the lower appellate court, was confirmed as it required no interference. With a view to give a practical shape and to make the bald order passed by the lower appellate court workable, certain directions/guidelines were issued. The defendant-petitioner No. 1, Krishna Bhagwan Agarwal and Shrawan Kumar Agarwal plaintiff-respondent No. 2 were appointed as the joint receivers of the partnership business of firm M/s. Ayodhya Prasad and Sons which has branch business establishments at Bilsi, Sahaswan, Ujhiani, Delhi, Kasganj, and Bisawali. The order dated 19.4.1999 was to take effect from 26.4.1999.
2. On 26.4.1999, three separate applications supported by affidavits have been moved. One set of applications comprises the Review Petition No. 28200 of 1999, along with stay application No. 28199 of 1999 filed on behalf of the petitioners. Krishna Bhagwan Agarwal and Vishnu Bhagwan Agarwal. In the review petition, the petitioners have pointed out that the order dated April
19, 1999, whereby Writ. Petition No. 6404 of 1999 was finally disposed of, suffers from various errors apparent on the face of the record, inasmuch as this Court has addressed itself on the facts touching the merits of the case without there being legal foundation for the same on record ; that the findings are prejudicial to the petitioners in the pending suit before the trial court ; that a large number of observations particularly those mentioned at page 14 of the judgment are based on mere assumptions and therefore, prejudicial to the interest of the petitioners in the pending suit : that writ petition has been finally disposed of in the absence of the respondents without hearing them except the plaintiff-respondent No. 2 who had filed the caveat and consequently, the order under review is vitiated on account of flagrant violation of the principles of natural justice ; that the scheme as formulated by this Court with regard to the appointment of the joint receivers is unworkable and contrary to the established principles of appointment of the receiver. On the above grounds, it is prayed that the order dated 19.4.1999 passed by this Court be reviewed and set aside and through Application No. 28199 of 1999 supported with an affidavit of one Narendra Kumar, who claims himself to be the pairokar of the petitioners, it is prayed that the operation of the order dated 19.4.1999 insofar as it relates to the appointment of the joint receivers from 26.4.1999 be stayed.
3. The other application No. 28060 of 1999 has been filed by Shanti Lal son of Asarfi Lal who is respondent No. 14 in the writ petition and defendant No. 10 in the suit, for the recall of the order dated 19.4.1999 primarily on the ground that he had not been served with the summons/ notice in the original suit as well as in appeal and the writ petition and the order dated 19.4.1999 was passed without affording any opportunity of hearing to him and that the said order has caused serious prejudice to his personal interest and the business which is being carried on by him as being its sole proprietor has been put in Jeopardy. It is alleged by
Shanti Lal, applicant, that he is
engaged in the business of running
petrol pump known as Nand Auto
Service in Kasganj, district Etah of
which he is the sole proprietor and
has entered into agreement with the
Indian Oil Corporation (for short
I.O.C.) in terms of which the
constitution of the business concern
cannot be altered without prior
consent of I.O.C. and that in addition
to the agreement for supply of the oil.
the applicant has himself got
registered under the U. P. High Speed
Diesel Oil and Light Diesel Oil
(Maintenance Order), 1981. According
to the applicant-Shanti Lal Nand Auto
Service does not form part of the
properties of the partnership firm M/s
Ayodhya Prasad and Sons and.
therefore, no relief in respect thereto
can be claimed treating it to be
property of the said firm and
consequently, the order of joint
receivership cannot take within its
sweep the business of the petrol
pump and Auto Service. It was also
pointed out that a specific issue No. 9
"Whether the name of Shanti Lal in
Petrol Pump Kasganj is Benami, if so
its effect? has been framed for
decision by the trial court and in the
absence of adjudication of the said
issue, the order of joint receivership
cannot be enforced against Shanti
Lal, respondent No. 14. It has further
been averred that the applicant
Shanti Lal has nothing to do with the
partnership business of M/s. Ayodhya
Prasad and Sons as he is doing his
own independent business in the
name of Nand Auto Service right from
the year 1968. The application of
recall on behalf of Shanti Lal,
therefore, is confined to only one
property, i.e., Petrol Pump situate at
Kasganj, of which he claims himself
to be the sole proprietor.
4. Counter and rejoinder-affidavits have been exchanged. Sri R.P. Goyal, learned senior counsel assisted by Sri Y.S. Saxena and Sri Manish Goyal on behalf of the petitioners and applicant Shanti Lal respondent No. 14, as well as Sri Ajit Kumar, learned counsel for the plaintiff-respondent No. 2 Shrawan
Kumar have been heard at
considerable length.
5. I first take up the application for recall of the order dated 19.4.1999, moved by Shanti Lal. Sri R.P. Goyal, learned counsel for Shanti Lal urged that an order of appointment of receiver can be passed after notice has been served on the defendant of any intended application for a receiver. According to him, a receiver is not appointed on an ex parte motion either before or after acknowledgment of service, in the absence of special circumstances, and ex parte applications for the appointment of a receiver by way of equitable execution are not granted except in cases of special emergency. It was further urged that it is well settled English law that even if a defendant has not acknowledged the service, an attempt should still be made to serve him personally with notice of any motion or summons for a receiver. A number of English cases were cited to fortify the submission that the writ or originating summons must as a rule be served on a defendant before a receiver can be appointed. A receiver is, according to Sri Goyal, not usually appointed if the persons principally interested in the property to be affected are not before the Court but if the defendant has absconded or if for any other reason it is found impossible to serve him, or if there is imminent danger of the property being lost, a receiver may be appointed before service on an ex parte application supported by affidavit. Sri Goyal asserted that since an ex parte order has been passed by the appellate court appointing the receiver and has been affirmed by this Court in the writ petition without issuing notice of hearing to Shanti Lal, it would be just and proper to recall the order dated 19.4.1999 and hear Shanti Lal in the writ petition. In support of this contention, Sri Goyal placed reliance upon an English decision in Day v. R.A.R. Motoring Service Ltd., 1999 All BR 1007, in which it was held that :
“When considering whether to set aside a judgment obtained in default of defence, the Court did not
need to be satisfied that there was a real likelihood that the defendant would succeed, but merely that the defendant had an arguable case which carried some degree of conviction. The Court should, however, be very wary of trying issues of fact on affidavit evidence where the facts were apparently credible and were to be set against the fact being advanced by the other side since choosing between them was the function of the trial Judge, not the Judge on the interlocutory application, unless there was some inherent improbability in what was being asserted, or some extraneous evidence which would contradict it. It followed, in the instant case, that the Judge had applied the wrong test. Moreover, he had also erred in the application of that test in that his evaluation of the defendant’s case was plainly wrong. Accordingly, the appeal would be allowed and the judgment in default set aside.”
Sri Ajit Kumar, learned counsel for the plaintiff-respondent No. 2 repelled the above submission and urged that it is wrong to assert that Shanti Lal was not served with summons or notice in Suit No. 65 of 1982. It was pointed out that as a matter of fact, Shanti Lal did file a written statement admitting the claim of the plaintiff-respondent No. 2 and that the said written statement was filed on 5/6.9.1983 through Sri V.K. Mathur, Advocate. A copy of the draft written statement is Annexure-C.A. 1 to the counter-affidavit to the recall application and the fair typed copy filed in Court is Annexure-C.A. 2. It appears that in order to wriggle out of the admissions made in the written statement. Shanti Lal made a statement that he never got a written statement filed through Sri V.K. Mathur, Advocate. The statement of Sri V.K. Mathur, Advocate, was recorded by the trial court, a copy of which is Annexure-C.A.-11. Sri V.K. Mathur. Advocate had stated on oath that he knew Shanti Lal and that the latter had contacted him to draft the written statement and on his directions, and after perusing the
documents, he had prepared a written statement and after it was typed out and read over. Shanti Lal had put his signatures in Hindi in his presence on the written statement. This statement of Sri V.K. Mathur gives a death blow to the plea taken by Shanti Lal that he did not receive any summons or notice of the suit. In para 4 of the written statement filed by Shanti Lal, he had clearly admitted that petrol pump at Kasganj is run in the name and style of “Nand Auto Service” and that the dealership was taken Benami in his name. He has also made it clear in para 6 of the written statement that Krishna Bhagwan, petitioner No. 1 (defendant No. 1 in the suit) had taken some land on lease at Kasganj for and on behalf of the firm M/s. Ayodhya Prasad and Sons. The cost of the super-structure built on this land was borne by M/s. Ayodhya Prasad and Sons and the name of the aforesaid petrol pump was rechristened as ‘Nand Auto Service’. Now, perhaps the aforesaid land is let out in the name of Vishnu Bhagwan, defendant No. 5 (petitioner No. 2); on this land, the business of M/s. Ayodhya Prasad and Sons is going on in the name and style of ‘Nand Auto Service’. The above unequivocal admissions contained in the written statement filed by Shanti Lal clearly militate against the stand which he has taken before this Court in the recall application.
6. Not only this, the defendant Nos. 1 to 5, who had filed Joint written statement in the suit had clearly asserted that though the dealership of the petrol pump at Kasganj is in the name of Shanti Lal, it was firm business of M/s Ayodhya Prasad and Sons. The petitioner No. 2, Vishnu Bhagwan filed Original Suit No. 135 of 1981 in respect of the petrol pump at Kasganj against the plain tiff-respondent No. 2 Shrawan Kumar and defendant-petitioner No. 1 Krishna Bhagwan. The said suit was dismissed. In that suit, even Vishnu Bhagwan, petitioner No. 2 did not assert that Shanti Lal was the sole proprietor of the petrol pump. There is no document on record to indicate that in exercise of the right as a sole
proprietor, Shanti Lal had submitted the sales-tax or income tax returns in his name in respect of Nand Auto Service. He did not even have a Bank account as a sole proprietor for the said business. From the various documents available on record, which are further capped with the admissions made in unerring terms by Shanti Lal in his written statement, it is prima facie established that the petrol pump at Kasganj was part of the business of firm M/s. Ayodhya Prasad and Sons. I do not wish to dilate the matter any further for one simple reason that issue No. 9 to the effect “Whether the name of Shanti Lal in petrol pump is Benami, if so its effect?” has been framed and this issue has yet to be decided by the trial court after evidence. I, therefore, refrain from making any further probe into the matter and to record the finding touching the merits of the controversy, lest it may prejudice either of the parties, one way or the other.
7. There can be no escape from the finding that Shanti Lal had been duly served and pursuant to service upon him, he had filed a written statement. He had full knowledge of the progress of the suit. Shanti Lal is not a stranger to the parties to the suit. He is son of the real sister of Ayodhya Prasad, father of the plaintiff-respondent No. 2, and the petitioners. He did not file any objection against the application moved by the plaintiff-respondent No. 2 for appointment of receiver before the trial court nor has contested the appeal filed by the plaintiff-respondent No. 2. Even after the appointment of the receiver, by the trial court, he did not challenge the said order. He had sprung up for the first time before this Court for the recall of the order dated 19.4.1999 as an alter ego of the petitioner-defendants.
8. It would not be out of place to mention here that the writ petition was finally heard on merits with the consent of the learned counsel for the petitioners and the contesting respondent No. 2, plaintiff in whose
favour the order of appointment of receiver was made by the appellate court after obtaining their counter and rejoinder-affidavits. The petitioners clearly represented the interest of Shanti Lal also. In my view, a mere shadowy claim of Shanti Lal woven in the application for recall supported by an affidavit with allegations, which arc inconsistent and apparently misleading, cannot invoke the Court’s intervention in the matter. The application for recall, therefore, has to be rejected as not being bona fide.
9. Now comes the other set of applications, i.e., for reviewing the order dated 19.4.1999 or its stay, filed on behalf of the petitioners. Sri R.P. Goyal, learned counsel for the petitioners urged that the order dated 19.4.1999 passed by this Court suffers from certain serious legal flaws, inasmuch as, a receiver could not be appointed in respect of a running partnership business and that certain observations made by this Court are based on mere assumptions and are prejudicial to the interest of the petitioner at the trial. It was also urged that the scheme devised by this Court is not practicable and workable, particularly, keeping in view of the fact that the plaintiff-respondent No. 2 had only 10 per cent of share, as against the petitioners and other partners, who have 90 per cent of the share in the partnership business. In support of his contention that a receiver cannot be appointed to throttle a running partnership business, a reference was made to an English decision in Sobell v. Boston and others, (1975) 2 All ER 28, in which it was observed that even if the appointment of a receiver and manager was not a wholly inappropriate remedy, it was for the plaintiff to show cause why a receiver and manager should be appointed, for the principle that, where a partnership had been, or it was clear that it had to be, dissolved, the Court would appoint a receiver and manager as a matter of course, could not apply. Reference was also made to the decision of this Court in Smt. Prosonomoyi Devi and another v. Benimadhab Rai and another, 1883 ILR (V) 556, to support the plea that a receiver cannot be appointed as a matter of course, and on Mikanbai v. Dassimal Gangaram and others, 1918 Indian Cases 224, in which it was held that the intention of the Legislature in substituting the words ‘just and convenient’ in place of the phrase ‘necessary for the realization, preservation, or better custody or management, of any property movable or immovable the subject of a suit or attachment in Order XL, Rule 1 of the new Civil Procedure Code was to bring the law in India into conformity with that in England. Emphatic reliance was placed on the decision of a Division Bench of this Court, in Smt. Saroj Rani Jafri and another v. Krishna Swarup Singhal, 1984 ALJ 1003, in which it was held that receiver cannot be appointed for a business run by partners at the instance of some one who is not a partner. In this celebrated decision, the earlier decisions with regard to the question of appointment of receiver were surveyed.
10. In the instant case, the validity, propriety and correctness of the order of the appellate court appointing the receiver has been tested by this Court with reference to a number of decisions on the point and after an elaborate discussion of the various decisions, for and against the parties, a conscious finding was recorded by this Court that where a partner excludes another from the management of the partnership affairs, there a case is made out for appointment of receiver and this doctrine has been acted upon even where the defendants contend that the plaintiff is not partner or that he has no interest in the partnership assets. Though it is not necessary to dilate on the point any further, a reference may be made to Peacock v. Peacock, (1908) 16 Ves Jun 49 ; and Blakeney v. Dufaur, (1851) 15 Beav 40, and also to Lindtey on Partnership, Twelfth Edition, pages 562-563 and Kerr on Receivers, Thirteenth Edition, page 70.
11. A faint suggestion was made that in a writ of certiorari, this
Court was not Justified in supplementing and supplanting the order of receiver made by the appellate court by issuing certain directions. In this connection, a reference was made to T.C. Bassappa v. T. Nagappa, AIR 1954 SC 440. This decision does not help the petitioners. It deals with the fundamental principles in regard to issuing a writ of certiorari. In the instant case, writ of certiorari was sought to quash the order dated 9.2.1999 passed by the appellate court. This Court has refused to quash the said order for the detailed reasons stated in the judgment which is now sought to be reviewed. As to under what circumstances certain directions came to be made, have also been specified in the judgment under review at pages 16 and 17. The appellate court has passed a blanket order of appointment of a receiver and has left the matter to be tackled for implementation by the trial court. No guidelines have been provided by the appellate court. In view of the blanket order. It was quite possible that trial court may have appointed a stranger as receiver. That too would have been a drastic and harsh step as a stranger would have come in the control and supervision of the running of partnership business. In order to avoid such a situation, it was considered just and proper to appoint the plaintiff respondent No. 2 Shrawan Kumar as a Joint receiver along with petitioner No. 1. Krishna Bhagwan Agarwal, who had 50 per cent of the share in the partnership business. The directions issued by this Court cannot be said to be beyond the scope of the writ of certiorari. As a matter of fact, there are precedents on the point that the writ courts have appointed joint receivers modifying the orders passed by the lower courts. For ready reference, a reference may be made to the decision in the case of Prem Prakash v. Govind Ram, AIR 1976 J&K 37.
12. It was also pointed out that the directions issued by this Court are not workable. No concrete data has been placed before this Court to indicate that the directions made by
this Court cannot be faithfully executed. Sri Ajit Kumar, learned counsel pointed out that the plaintiff-respondent No. 2 Shrawan Kumar and the petitioner No. 1 Krishna Bhagwan Agarwal are not finding any difficulty in implementing the directions of this Court. It was asserted that the review petition has not been filed by the petitioner No. 1 but at the behest of petitioner No. 2 Vishnu Bhagwan Agarwal. Validity, genuineness or propriety of the affidavits filed on behalf of the petitioners was the subject of serious criticism and it was sought to be demonstrated that the petitioner No. 1, Sri Krishna Bhagwan, has not joined in filing the review petition. Be that as it may, conscious of the fact that there may arise some difficulties in implementing the directions, this Court has made a provision to remove difficulties by inserting clause (ix) that if for any reason the trial court finds that the arrangement of joint receivership is not workable and any of the partners is creating impediments in the implementation of the directions given by this Court, it shall be at liberty to appoint a body of two or more persons, may be strangers to run the partnership business and to manage and protect its properties and assets. If at any point of time, the petitioners feel that the directions issued by this Court are not workable, they may approach the trial Court for suitable orders.
13. In spite of my best efforts to find out a mistake, muchless, a glaring and apparent mistake in the order dated 19.4.1999. I could not detect any error, which may have impelled me to review the said order. What the petitioners and Shanti Lal want is that the writ petition be reheard and decided afresh. The fundamental principles which govern the review of an order are well established. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but is only for patent error M/s. Thungabhadra Industries Ltd. v. Government of Andhra Pradesh, AIR 1964 SC 1372. It is well settled that a party is not entitled to seek a review of a Judgment delivered by the Court
merely for the purpose of rehearing and a fresh decision of the case. The normal principle is that a judgment pronounced by the Court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so : Sajjan Singh v. State of Rajasthan. AIR 1965 SC 845. For instance, if the attention of the Court is not drawn to a material statutory provision during the original hearing, the court will review its judgment ; G.L. Gupta v. D.N. Mehta, (1971) 3 SCC 189. The Court may also reopen its judgment if a manifest wrong has been done and it is necessary to pass an order to do full and effective justice ; O.N. Mohindroo v. District Judge Delhi, (1971) 3 SCC 5. But whatever the nature of the proceeding, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except “where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility” Sow Chandra Kante v. Sheikh Habib, (1975) 3 SCR 933 ; also see Northern India Caterers (India) Ltd. v. Lt. Governor, Delhi, (1980) 2 SCC 167. The ‘mistake or error apparent on the face of record’ should be self-evident and does not require process of reasoning Parison Devi v. Savitri Devi, 1998 ACJ 399 (SC). The words ‘or other sufficient reason must mean a reason, sufficient on grounds, at least analogous to those specified in the rule : M.M.B. Catholicos v. M. P. Athanasins, AIR 1954 SC 526. The review must be such as would be apparent on mere looking of the record without requiring any long drawn process of reasoning. Reappraisal of the entire evidence on record for finding the error would result in exercising appellate jurisdiction which is not permissible, Meera Bhanja (Smt.) v. Nirmala Kumari Chaudhari (Smt.), (1995) 1 SCC 170. No such facts or circumstances have appeared in the instant case for review. These applications for review and recall have been moved with a view to
frustrate the order of appointment of receiver passed by the first appellate court as affirmed by this Court with certain directions.
14. In the result, the
applications for recall, stay and
review of the order dated 19.4.1999
turn out to be devoid of any merits
and substance. They are accordingly
dismissed.