ORDER
Natarajan, J.
1. This appeal is directed by the defendants in O.S.No. 108 of 1986 on the file of the Subordinate Judge, Madurai, challenging the order of appointment of receiver passed in the above suit.
2. The fact which are necessary for the disposal of this appeal are briefly as follows: The appellants herein (hereinafter referred to as the defendants) are the tenants while the respondents herein (hereinafter referred to as the plaintiffs) are the landlords. The subject matter of the suit is a lodge consisting of two items, namely a building which is described as A Schedule and furniture, fittings, costs, etc., which are described as B Schedule. The father of defendants 2 to 4, one P. Kumarasami Reddiar took the premises on lease as per an un-registered lease deed dated 19-9-1955 and agreed to pay a rent of Rs. 1,000 for A Schedule property and Rs. 100 for B Schedule property, and paid an advance of Rs. 5,000. Subsequently it was enhanced to Rs. 1,700 and Rs. 300 respectively. The plaintiffs filed a suit in O.S.No. 118 of 1984 for recovery of possession of both items and arrears of rent of Rs. 12,000 for the period from 1-4-1983 to 30-9-1983. During the pendency of that suit, the present suit was filed for recovery of damages for use and occupation from 1-10-1983 till 31-1-1986 for Rs. 56,000. The suit O.S.No. 118 of 1984 was decreed on 26-9-1986. The impugned order was passed on 22-4-1988 in I.A.No. 24 of 1987 which was filed on 4.2.87 for appointment of a receiver or to appoint the fourth plaintiff as receiver to collect the rental income and to deposit the amount into court once in three months and to submit accounts for income and expenditure on the allegation that in the lodge, there are 50 rooms and the defendants are realising an income of Rs. 10,000 per mensem. In any event, it would fetch not less than Rs. 6,000 per mensem. The defendants are paying only Rs. 2,000 per mensem from 1982. The rent was not increased thereafter. Though the decree in O.S.No. 118 of 1984 was passed on 26.9.1986, the defendants neither filed any appeal nor vacated the premises. It is also alleged that the defendants are misusing the B Schedule articles and are creating loans over the B schedule properties belonging to the plaintiffs.
3. The said application IA.No. 24 of 1987 was resisted by the defendants. They filed a counter denying the allegations and inter alia contending that the plaintiffs claimed the same relief in the prior suit O.S.No. 118 of 1984 and it was withdrawn. Without permission of the Court, the plaintiffs filed the present suit and hence it is barred under Order 23, Rule 1(4), C.P.C. The defendants preferred an appeal against the judgment and the decree in O.S.No. 118 of 1984, before the High Court in A.S. No. 203 of 1987 and obtained stay of execution of the decree in C.M.P.No. 3185 of 1987. They paid a sum of Rs. 12,000 towards past arrears and another sum of Rs. 10,000 towards damages for use and occupation at the rate of Rs. 2,000 per month for the period from 1-10-1986 to 28-2-1987. The plaintiffs have also obtained an order of attachment before judgment against the properties of the defendants in the present suit O.S.No. 108 of 1986, in IA.No. 112 of 1986, to safeguard for realisation for the amount due under the decree which may be passed ultimately in the suit. Since the defendants are continuing in possession lawfully in their capacity as tenants, there is no need for the appointment of receiver.
4. The learned Subordinate Judge for the reasons assigned in his order allowed the application and appointed one M. Balaguru, Advocate, as receiver to take possession of the plaint schedule properties and the defendants were directed to hand over possession to him, and after taking possession of both A and B schedule properties, the receiver was directed to manage the affairs of the said properties and was directed to deposit the profits realised thereon once in a month into court. Aggrieved by the same, this appeal is filed.
5. Learned Counsel for the appellants (defendants), T. Srinivasaraghavan, submitted that the appointment of receiver by the court below is illegal and improper for the following reasons. According to the learned Counsel, when the relief asked for in the petition itself is only for appointment or a receiver to collect the rental income, the learned Subordinate Judge granted a larger relief by appointing a receiver to dispossess the defendants and manage the same. Further, none of the ingredients which are necessary for the appointment of a receiver under Order 40, Rule 1, C.P.C., has been established and no pleadings were even made for the same. It is also submitted that a receiver cannot be appointed in a simple money suit and the receiver should not be directed to dispossess the defendants by indirect means as the defendants are tenants entitled to the statutory protection and it can be done only by due process of law. Lastly it was submitted by the learned Counsel that when there was an earlier suit filed by the same plaintiffs for recovery of possession and it ended in their favour and as against the same, the defendants preferred an appeal before the High Court and obtained stay and they complied with the direction given by the High Court by depositing all the amounts, the subordinate Judge cannot nullify the order of stay granted by the High Court by appointing a commissioner even after coming to know of the same. It is also submitted by the learned Counsel that the interest of the plaintiffs is fully safeguarded by attaching before judgment the properties of the defendants for the said claim. Let us consider the submissions made by the learned Counsel for the appellants (defendants) one after another.
6. As regards the first contention that larger relief is granted by the lower court than the one prayed for in the petition, both the learned Counsel took me through the affidavit and the petition filed in the case. It is clear from the prayer in the petition that the plaintiffs only prayed for appointment of a receiver for collecting the rental income from the suit property or to appoint the fourth plaintiff to collect the rental income and to deposit the amount into court once in three months and to submit accounts for the income and expenditure. To the same effect, it has been so stated in the affidavit. It is nowhere mentioned either in the petition or in the affidavit that a receiver is to be appointed to dispossess the defendants and to manage the affairs of the suit property as contended by the learned Counsel for the appellants. Learned Counsel for the respondents (plaintiffs) submitted that in addition to the relief of appointment of receiver to collect the rental income, it is mentioned in the petition that the receiver should submits accounts in respect of the income and expenditure and it implies that the receiver should manage the property after dispossessing the defendants. I do not find any merit in the said contention. It is clear from the various allegations made in the affidavit and the relief prayed for, that the plaintiffs sought for appointment of a receiver only to collect the rental income and deposit the same into court. Hence I find much force in the contention of the learned Counsel for the appellants (defendants) in this regard.
7. The second submission made by the learned Counsel for the appellants is that none of the ingredients which are necessary for appointment of receiver under Order 40, Rule 1, C.P.C., has been alleged and made out. On going through the order passed by the court below, I find that the lower court mainly relied on the question of title. In addition, it is only stated that in the affidavit filed by the plaintiffs it is alleged that the defendants are getting loans by hypothecating articles in the lodge and that it is not disputed. Hence, it is necessary to meet the ends of justice to appoint receiver. It is to be noted that in para 5 of the affidavit filed in support of the application only a vague allegation is made that the defendants are creating loans over the B schedule articles belonging to the plaintiffs and that the defendants are misusing the properties. No details about the alleged hypothecation have been given. The said allegations were denied in para 9 of the counter-affidavit, filed by the defendants, wherein it is stated that the allegations in para 5 of the affidavit under reply are false being irrelevant. The defendants admittedly being the tenants holding over are liable to pay only the rent agreed till they are evicted by due process of law. Learned Counsel for the respondents (plaintiffs) A.R. Lakshmanan submitted that under Clause 7 of the lease deed which is marked as Exhibit A.2. in the prior suit, there is a prohibition for creating encumbrance of sub-letting the premises or putting the same to a different user and the creating loan over the B Schedule properties is by itself sufficient for appointment of receiver. I do not find any merit in the said contention. In this connection, the learned Counsel for the appellants drew my attention to the off quoted decision reported. In Krishnaswamy v. Thangavelu A.I.R. 1985 Mad. 430 wherein P.M. Ramaswami, J., has held down five requirements and held as follows:
The appointment of a receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. Thereafter, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution and only when the five requirements embodied in the words “just and convenient” in Order 40, Rule 1 are fulfilled by the facts of the case under consideration.
These five requirements are:
1. The appointment of a receiver pending a suit is a matter resting in the discretion of the court.
2. The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
3. Not only must the plaintiff show a case of adverse and conflicting claims to property but, be must show some emergency or danger or less demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration.
4. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause irreparable wrong. It would be different where the property is shown to be in media, that is to say, in the enjoyment of the one, and
5. The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
Learned Counsel for the respondents (Plaintiffs) submitted that the plaintiffs showed to the court that they have got the excellent chance of succeeding in the suit. That itself is not sufficient for the appointment of a Receiver. As rightly observed in the decision, the element of danger is an important consideration. The plaintiffs must show some emergency or danger or loss demanding immediate action. As rightly contended by the learned Counsel for the appellants, the stray and vague allegations that the defendants are creating loans over B schedule properties which consist of furniture and other movables cannot be the foundation for the appointment of receiver. It is also submitted by the learned Counsel for the appellants (defendants) submitted that such an allegation was not made before the lower court and only for the first time in the counter-affidavit before this Court such an allegation was made. In any event there is no basis for the same and hence it is not open to the respondents to raise such a contention when there is no such pleading before the lower court. I find much force in the said contention. Except finding that the plaintiffs were driven to the necessity of filing the suit for recovery of arrears of rent, they have not made out any case for appointment of receiver especially when admittedly the defendants are the tenants from 1955. The plaintiffs claimed damages for use and occupation at the rate of Rs. 2,000 which is the rent as admitted by both parties. The plaintiffs have also attached the properties of the defendants before judgment for the suit claim. Further, after the filing of the petition, this Court granted stay of delivery of possession, putting the defendants to certain terms and the defendants deposited a sum of Rs. 22,000 towards the decree amount, and admittedly they have been sending the future rent also by way of demand drafts at the rate of Rs. 2,000 per mensem. As rightly contended by the learned Counsel for the appellants, the order appointing a receiver subsequent to the order of stay passed by this Court would nullify the effect of the stay order. What the respondents herein (Plaintiffs) should not obtain the relief of dispossession of the appellant in view of said order of stay granted by this Court they indirectly were to get the same by appointing Receiver, ft is well settled that an order of appointment Receiver would not be made to the effect of depriving the defendants of their lawful possession since that will cause irrepairable loss, especially in the absence of any material to hold that the property is exposed to danger or loss. In this connection, my attention was drawn to the decision of this Court reported in Syed Azadulla v. Syed Roshan Ramaprasada Rao, J., (as he then was), relying on the decision is Sivaji Raja Sahib v. Aiswariyanandaji, held;
Therefore, Receivers over suit properties ought not to be appointed for the mere asking for by one or other of the parties to the litigation unless some allegation as to waste or some prima facie proof as to detriment to property is established. In this case, there is this additional factor that the defendant himself is in possession of the suit property under cover of Ex.B-1 an equally efficacious registered instrument of gift executed by his father in his favour in 1964. He, therefore, claims prima facie title to the property as well. It is also indisputable proposition that such possession with parties who have a prima facie title to the same ought not to be disturbed pending disposal of the suit. On both the grounds, I am satisfied that it is neither just nor convenient in the instant case to disturb the possession of the properties now admittedly remaining with the defendants.
8. Learned Counsel for the appellants submitted that admittedly the defendants are in possession as tenants and the order appointing Receiver would have the effect of depriving of their right to remain in possession of the property as tenants till they are evicted in due process of law. Learned Counsel submitted that though a suit for recovery of possession was filed, the matter is now pending in appeal and by virtue of granting stay, this Court allowed the defendants to remain in possession on depositing certain amount. Learned Counsel for the appellants invited my attention to a decision of the Mysore High Court reported in R. Chinnaswamy v. C.H. Lakshminarayana A.I.R. 1972 Mys.20 where a suit filed by tenant for permanent injunction restraining the landlord from interfering with his possession and enjoyment of the suit land is pending and the tenancy is undisputed. Therein it was held that court cannot pass an order appointing receiver under Order 40, Rule 1, C.P.C., and such an order will have the effect of depriving the tenant of his lawful right to remain in possession of the property which he is entitled, until a notice as required under Section 22 of the Mysore Land Reforms Act 10 of 1962 is given and the proceedings Under Section 41 of the Act are initiated against him. Learned Counsel for the respondents submitted that it was held in the earlier suit that it was a composite lease and their claim as statutory tenants was rejected and as such, it is not open to them to claim the benefits of the Act. Even accepting that it is a composite lease and the landlords are entitled to ask for recovery of possession, the remedy of the landlords, namely, the plaintiffs, is to recover possession only under due process of law and they cannot dispossess the defendants by indirect means by moving the court for appointing a receiver. The mere fact that the building and the articles therein would fetch more income and that the defendants are paying a lesser amount or damages for use and occupation by itself is not a ground for granting the relief under Order 40, Rule 1, C.P.C., by way of appointing Receiver. The fact remains that even in the suit filed by the plaintiffs, they have claimed mesne profits for use and occupation only at the rate of Rs. 2,000.
9. Learned Counsel for the appellants submitted that in a money suit receiver should not be appointed relying on Rajalakshmi Ammal v. Muthuswami Gounder A.I.R. 1958 Mad. 411 (D.B.) On the other hand, the learned Counsel for the respondents submitted that though it is a suit for recovery of damages for use and occupation in respect of a lodge, the subject matter is only immovable property and that it cannot be equated to a money suit. It is not in dispute that the present suit is only for recovery of amount due from the defendants by way of damages for use and occupation and that it cannot be said that it is with reference to immovable property. The earlier suit alone filed for recovery of possession and for arrears of rent is in respect of immovable property and the matter is now pending in appeal before this Court as already stated. It is not in dispute that normally in a money suit receiver should not be appointed. P.N. Ramaswami, J., in Krishnaswamy v. Thangavelu , has referred to the decision Dozierb. Logon 101 ga 173 (329)j rendered by Atkinson, J., in para 14 of his judgment. Atkinson, J., observed:
The appointment of receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the creditors is exposed to manifest peril.
In the instant case, we do not have any material to hold that the interest of the respondents herein (plaintiffs) is exposed to any such manifest peril, so as to appoint a receiver. We do not have any extraordinary circumstances to justify the appointment of receiver.
10. Now, as regards the maintainability of the suit, it was submitted by the learned Counsel for the appellants that the plaintiffs originally filed the suit O.S.No. 118 of 1984 for three reliefs, namely, for directing delivery of possession of the suit properties to the plaintiffs by the defendants for directing them to pay arrears of. rent and lastly for directing them to pay mesne profits from 1-10-1983 till the date of handing over possession of both A and B Schedule properties. But, subsequently, they have filed the suit O.S.No. 108 of 1986 without obtaining leave from the court to file a fresh suit, and as such the present suit is barred under Order 23, Rule 1, C.P.C. On the other hand, the learned Counsel for the respondents submitted that while the earlier suit was pending, the present suit was filed on 31-1-1986. The earlier suit was disposed of on 26-9-1986. Further, both parties filed a memo in respect of mesne profits and on the basis of the same, the earlier suit was disposed of only on two reliefs, while omitting the relief regarding future mesne profit and as such, it cannot be said that the present suit is barred. Anyhow, it is matter to be agitated in the suit and I do not wish to express any opinion as it is not quite relevant for deciding this appeal. It is submitted by the learned Counsel for the respondents that a sum of Rs. 16,000 towards damages for use and occupation from 1-2-1986 to 30-9-1986 was omitted to be paid by the appellants herein. The learned Counsel for the appellants represented that the appellants are prepared to deposit the said amount irrespective of the result of this appeal at any tune when they are directed to do so. Hence, there is no difficulty for the respondents to realise any amount due to them from the appellants herein. For all these reasons, I am of the view that none of the requirements for appointing receiver is made out in the instant case and hence the order passed by the Sub-Judge appointing an advocate as receiver is not sustainable in law.
11. In the result, the appeal is allowed and the other appointing receiver by the lower court is hereby set aside. In the circumstances of the case, there will be no order as to costs. It is hereby ordered that the court below is directed to dispose of the suit as expeditiously as possible. However, the appellants are hereby directed to deposit the amount of Rs. 16,000 to the credit of the suit for use and occupation from 1-2-1986 to 30-9-1986, within four weeks from to-day.