HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 14548/2008
DIVISION BENCH Hon,ble Shri Justice Sushil Harkauli &
Hon'ble Shri Justice U.C. Maheshwari
Satya Pal Anand
Vs.
The Punjabi Housing Cooperative Society Ltd. and others.
:- The petitioner present in person.
:- Ashok Lalwani, learned counsel for the respondents.
ORDER
03/08/2011
U.C. MAHESHWARI, J.
1. The petitioner – applicant has directed this petition under Article 226 of the
Constitution of India challenging the tenability and sustainability of order
dated 22.11.2008 passed by the M.P. State Co-operative Tribunal, Bhopal (in
short “the Tribunal”) dismissing his Second Appeal No. 207/08 treating to be
a revision under Section 77 (14) of the M.P. State Cooperative Societies Act
1960, (in short “the Societies Act”) affirming with some observations the order
dated 18.11.08 passed by the Joint Registrar, Co-operative Society, allowing
the Revision of respondent no. 2 bearing No. 80-A 98/07-08, whereby setting
aside the orders dated 4.2.08, 18.2.08 and 25.3.08 passed by Dy. Registrar,
Cooperative Society in Miscellaneous Case No. 15/07 remitted back the case
again to Dy. Registrar with a direction to decide the application of the
petitioner filed under Section 67 of the Societies Act, r/w under Order 40 Rule
1 of the CPC afresh.
2. The facts giving rise to this petition in short are that respondent no. 1- Society
by executing a sale deed dated 22.2.1962 through its office bearer alloted the
plot bearing no. 7-B, Panjabi bagh, Bhopal with possession to Smt. Veerawali,
(since deceased) the mother of the petitioner and such sale deed was duly
registered on 30.3.1962 with the Sub Registrar, Bhopal. Subsequent to such
allotment the office bearer of the respondent no. 1, contrary to the right of
said Veerawali and the petitioner, unilaterally executed and got registered an
extinguished deed dated 9.8.01. On the strength of such deed the respondent
no. 1 through its office bearer executed and registered the sale deed with
consideration on dated 21.4.04 in favour of respondent no. 2 who on her turn
by executing the registered sale deed dated 11.7.06 with consideration sold
out such plot to respondent nos. 4 and 5. According to the case of the
petitioner the sale deed executed in favour of her mother could not be
deemed to be cancelled on the strength of above mentioned extinguished
deed. As the same was got executed and registered by practicing fraud with
the rights and title of Veerawali and after her death, of the petitioner. On
coming to know about such fraud, the petitioner filed dispute in this regard
before the court of Dy. Registrar of Cooperative Society under Section 64 of
the Societies Act. In pendency of the same, such court by issuing ad interim
injunction dated 1.2.06 restrained the respondent to make any construction
over the disputed property. The same was approved by the appellate court,
vide order dated 29.8.06. While approving such interim injunction the
appellate court also directed to the Dy. Registrar to conclude the trial and
adjudicate the same upto the period ended on 29.11.06. Inspite that such
dispute bearing Case No. 81/05 is still pending for adjudication.
3. In pendency of the aforesaid dispute the petitioner filed an application under
Section 67 of the Societies Act, r/w Order 40, Rule 1 of the CPC with the
prayer of appointment of the Receiver. Contending that respondent nos. 2 to
5 never acquired any title or the possession of the disputed property, the
same was remained on the strength of the said sale deed 22.3.1962 with Smt.
Veerawali and after her with the petitioner. But on dated 6.7.04 by
committing the offence of trespass, respondent nos. 2, 4 and 5 put out the
petitioner from the physical possession of the same. Such respondent did not
have any right to remain or enjoy such property. With these averments, to
protect the title and interest of the petitioner regarding disputed plot he filed
the aforesaid application in the court of Dy. Registrar on dated 4.2.08.
4. After registering the petition as Miscellaneous Case No. M-15/07 an exparte
order for appointment of the receiver for the disputed property was passed on
the same day whereby Shri J.S. Gujral retired Sr. Cooperative Inspector was
appointed as Receiver who withdrew his name from such appointment on
dated 18.2.08, on which Shri N.K. Saxena, Adv was replaced as Receiver and
was directed to take physical possession of the disputed plot. But
subsequently by passing a bi- parte order dated 25.3.08 instead the physical
possession, the Receiver was directed to take only symbolic possession of the
property, on which the petitioner filed the Revision bearing No. 78/04/08-09
before the Joint Registrar with a prayer to set aside the aforesaid order dated
25.3.08 by maintaining the orders dated 4.2.08 and 18.2.08 directing the
Receiver to take physical possession of the property while respondent no. 2
Manjeet Kour filed two different revisions with a prayer to set aside the entire
proceedings of appointment of the Receiver and also the aforesaid interim
orders dated 4.2.08 and 18.2.08 passed by the Dy. Registrar in such
proceedings.
5. On consideration such revisions were adjudicated by the impugned order
dated 18.11.08 whereby setting aside the aforesaid orders dated 4.2.08,
18.2.08 and 25.3.08, the case was remitted back to Dy. Registrar with a
direction to decide the aforesaid applications afresh in accordance with law.
On challenging such order by the petitioner in Second Appeal before the
State Cooperative Tribunal, on consideration by treating such appeal to be a
Revision under Section 77 (14) of the Act, was dismissed by the impugned
order and by affirming the order of the Joint Registrar the case has been
remanded to the Dy Registrar with some additional directions to decide the
application afresh. Hence the petitioner has come to this court with this
petition.
6. We have heard at length to the petitioner in person and the counsel of the
respondents. Having heard, after perusing the record, We are of the
considered view that this petition being filed against the order of the Tribunal
and its subordinate Courts constituted under the Societies Act could be
entertained under the superintendence of power of this court enumerated
under Article 227 only and not under Article 226 of the Constitution of India.
7. True it is that initially on filing the aforesaid application for appointment of
Receiver by passing an exparte order some retired officer of the Cooperative
Society was appointed as Receiver, vide order dated 4.2.08 with the directions
to take physical possession of the disputed property. Subsequently on
considering the prayer of such receiver permitting him to withdraw on
18.2.08 one Shri N.K. Saxena, Adv was appointed to be a Receiver with a
direction to take physical possession of the property. Both the orders were
passed exparte. After giving appearance on behalf of the respondents by
passing bi-parte order dated 25.3.08 the Receiver was directed to take
symbolic possession of the disputed property instead the physical possession
of the same.
8. As per averments of the petition on the date of filing the application the
petitioner was not in actual possession of the disputed property. According to
his own case by committing the offence of criminal trespass, he was put out
from the physical possession of the property by the respondents. Besides this
at the instance of the petitioner dispute filed under Section 64 of the Societies
Act bearing no. 81/05, is still pending in the competent court of the
cooperative sector. In such circumstance, we are of the considered view that
while pendency of any litigation before any forum prescribed under the
Cooperative Societies Act, the party has a right to approach such court with
the application for appointment of the Receiver. But such application could be
considered and adjudicated by such court keeping in view the scheme
provided under Section 67 of the Societies Act and under Order 40 of the
CPC and the settled propositions of law in that regard.
9. The Tribunal as well as the Joint Registrar after appreciation of the available
circumstances of the case have categorically held that the aforesaid
application of the petitioner was not considered by the Dy. Registrar in
accordance with law and the prescribed procedure and the settled
propositions of the law in this regard. After going through the aforesaid both
the orders, we have not found any apparent error, illegality, irregularity or
anything against the propriety of law in the same. On the contrary, same
appears to be passed by the subordinate Tribunal and the Joint Registrar
under the vested jurisdiction in them.
10.In view of the aforesaid discussion, this petition could not be allowed by
invoking the writ jurisdiction vested in the Court under Article 227 of the
Constitution of India.
11.Apart the above long before on arising the occasion the Single Bench of this
Court in the matter of Bal Vyasi Vs. Mahila Ujjala reported in 1973, MPLJ,
Page 941 has settled the principles for appointment of the Receiver, which
are still covering such field. The same are as under:-
14. Principles relating to appointment of receiver may
now be recapitulated as under:-
(1) Generally stated, the object of appointment of
receiver is preservation of the subject matter of
the litigation pending a judicial determination of
the rights of the parties to it.
(2) The rule embodies in Order 40, rule 1, Civil
Procedure Code empowers the Court to appoint a
receiver whenever it appears to it to be just and
convenient to do so. The language employed in
the Rule leaves the matter to the discretion of the
Court.
(3) The Court has fullest jurisdiction in the matter of
appointment of receiver, but the discretion cannot
be exercised arbitrarily 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.
(4) Appointment of receiver is recognized as one of
the harshest remedies which the law provides for
the enforcement of rights so that the jurisdiction
must be exercised only in extreme cases.
(5) The Court does not, while considering the question
whether a receiver should be appointed, arrive at
any final decision on the merits of the case. Its aim
is merely to preserve the status quo ante during
litigation.
(6) Receiver cannot be appointed just because it is
expedient or convenient to one of the parties to do
so; nor merely because it will do no harm to do so.
(7)When a person is in bona fide possession of the
property in dispute, his possession should not be
disturbed by appointment of receiver unless there
is some substantial ground for such interference,
such as a well founded fear that the property in
suit will be dissipated or other irreparable mischief
may be done unless the Court appoints a receiver.
The plaintiff must not only show a case of adverse
and conflicting claims to property, he must further
show some emergency or danger or loss
demanding immediate action and, further the
plaintiff’s own right must be reasonably clear and
free from doubt.
(8) Although the jurisdiction of the trial Court is the
matter of appointment of a receiver is
discretionary, that discretion is liable to interfere, if
it is not in accordance with the principles on which
the judicial discretion must be exercised.
12.Keeping in view the aforesaid principles also, on examining the orders of the
Dy. Registrar appointing the Receiver and modifying such order, (at latter
stage), that same is not found to be passed in accordance with such
principles. So in such circumstance, the Joint Registrar of Cooperative Society
or the Tribunal had no option except to set aside the order passed by the Dy.
Registrar and send back the matter again to trial court to decide the
application of the petitioner afresh in accordance with prescribed procedure.
Thus, in such premises also the impugned order is not found faulted.
13.However, some of the observations made by the Tribunal in para 7 of its
order on merits regarding the sale deed dated 6.7.04, while giving the
direction to the trial court stating that “the Court of Dy. Registrar while
considering the matter should also ensure that the second deed executed on
6.7.04 should also have a bearing in the matter and as long as this deed is
not declared void by a competent court, the question of appointing a Receiver
will not arise” do not appear to be proper and reasonable, hence the same is
hereby omitted.
14.Although in the course of arguments, various case laws reported in different
journals were cited by the petitioner but in the aforesaid circumstances, the
same being distinguishable on facts and circumstances of the case at hand,
are not helping to the petitioner.
15.In view of the aforesaid discussions, this petition being devoid of any merit is
hereby dismissed with aforesaid observation. There shall be no order as to the
costs.
(Sushil Harkauli) (U.C. Maheshwari)
Judge Judge
bk s
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR
Writ Petition No. 14548/2008
Satya Pal Anand
Vs.
The Punjabi Housing Cooperative Society Ltd. and others.
Present:- Hon,ble Shri Justice Sushil Harkauli &
Hon’ble Shri Justice U.C. Maheshwari
For the petitioner :- Present in person.
For the respondents :- Ashok Lalwani, Adv.
Order for consideration
( U.C. Maheshwari )
Judge
/08/2011
Hon. Shri Justice Sushil Harkauli, J.
(Sushil Harkauli)
Judge
/08/2011
Post for /08/2011
( U.C. Maheshwari )
Judge
/08/2011