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Rameshlal Santuka Vs. Sureshlal Santuka - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revision No. 32 of 1984
Judge
Reported in1985(I)OLR44
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 115(1) - Order 40, Rules 1 and 2
AppellantRameshlal Santuka
RespondentSureshlal Santuka
Appellant AdvocateB.M. Patnaik and S. Lal
Respondent AdvocateB.K. Mohanty and B. Mishra
DispositionRevision dismissed
Excerpt:
.....assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - both parties are satisfied if i direct disposal of the suit bythe end of february, 1983. mr. 342 of 1982 was closed, no enquiry as directed in the impugned order can take place with regard to assessment of the quantum of rent in respect of the three shop rooms and after such assessment the petitioner cannot be directed to deposit the arrears, as well as, the current rent. this principle enunciated prior to the amendment ofsection 115 of the code in the year 1976 still holds good as held by several high courts and by this court in 1984(1) o. when this order was passed, the..........judge, cuttack, initiating an enquiry regarding assessment of rent payable in respect of three shop rooms forming subject-matter of the partition suit. the defendant is the petitioner.2. the facts leading to the present petition may be stated in brief. the petitioner and the opposite party (plaintiff) are natural brothersbelong to a trading family. the opposite party filed a suit for: partition against the petitioner claiming half share in the suit property consisting of land and buildings. in course of the proceedings of the suit, he made a petition registered as misc. case no. 342 of 1982 under order 40, rule 1 for appointment of a receiver in respect of the suit property and further made another petition registered as misc. case. no. 343 of 1932 under order 39, rule 1 of the code.....
Judgment:

K.P. Mohapatra, J.

1. This revision is directed against the order passed by the learned Additional Subordinate Judge, Cuttack, initiating an enquiry regarding assessment of rent payable in respect of three shop rooms forming subject-matter of the partition suit. The defendant is the petitioner.

2. The facts leading to the present petition may be stated in brief. The petitioner and the opposite party (plaintiff) are natural brothersbelong to a trading family. The opposite party filed a suit for: partition against the petitioner claiming half share in the suit property consisting of land and buildings. In course of the proceedings of the suit, he made a petition registered as Misc. Case No. 342 of 1982 under Order 40, Rule 1 for appointment of a receiver in respect of the suit property and further made another petition registered as Misc. Case. No. 343 of 1932 under Order 39, Rule 1 of the Code of Civil Procedure ('Code' for short) praying for issuance of temporary injunction in order to restrain the petitioner from making further constructions on the suit property and alienating any portion thereof in any manner. Both the Misc. Cases were disposed of by the learned Additional Subordinate Judge by a common order dated 26.11.1982. He appointed the petitioner as the receiver in respect of three shop rooms with a direction that he shall deposit the rent thereof which may be determined after due enquiry. He posted the case to 30.11.1982 for enquiry as to the assessment of rent The enquiry, however, could not take place because the opposite party applied for adjournment on the ground that he had preferred an appeal against the order of the trial Court. The learned Additional Subordinate Judge refused to issue temporary injunction and passed some incidental orders with which we are not presently concerned. The opposite party filed M. A. 546 of 1982 in this Court challenging the order, whereby, the petitioner was appointed as receiver. This Court on 21.12.1982 disposed of the aforesaid case and passed the following order :

' Heard Mr. B. K. Mohanty for the appellant and Mr. B. M. Patnaik for therespondent:I do not propose to disturb the arrangement made by the trial Court in regard to receivership. Both parties are satisfied if I direct disposal of the suit bythe end of February, 1983. Mr. Mohanty for the appellant want? that I should direct that no further construction should be undertaken. According to Mr. Patnaik, the trial Court has already indicated about it in its order. To clarify the position, I direct that without leave of the trial Court, no further construction should be made till the disposal of the suit. '

Thus the order of appointment of the petitioner as receiver was upheld. After the aforesaid order of this Court was communicated to the trial Court, the following order was passed on 7.1.1983.

'In view of Order No. 2 Dt. 21.12.1982 of the Hon'ble Court, passed in M.A. 546/82 both the Misc. Cases are closed.'

On 18.7.1983 the opposite party made a petition praying to the Court for assessment of rent of the three shop rooms in accordance with the order passed in Misc. Case No. 342 of 19S2 and to direct the petitioner, being the receiver, to deposit the arrear rents and the current rent thereof. The petitioner in a counter opposed mainly on the grounds that by order dated 7.1.1983 the trial Court had closed Misc. Case No. 342 of 1982 and so the same could not be reopened for the purpose of making an enquiry to assess the quantum of rent of the three shop rooms. Further, a firm named and styled as 'Jay Kay', which is not a party to the suit, is in possession of the premises and in its absence no such enquiry can take place. The petition and the counter referred to above were heard and by the impugned order the learned Additional Sub-ordinate Judge held as follows :

'Since the aforesaid petition of the plaintiff deserves dueconsideration for the enforcement of the orders passed by the Court earlier, and as the prayer of the plaintiff, if rejected, would bring reasonable loss to the parties in the long run, I feel it expedient in the interest of justice that no prejudice will be caused to either of the parties in case the petition is dealt with in the suit itself. Therefore I hold that there will be no irregularity in entertaining the petition dated 18.7.1983 of the plaintiff in the original suit itself. Accordingly it is ordered that the parties should get ready by the next date for an enquiry about the assessment of the rent to be payable in respect of the three suit rooms, after disposal of which matter specific direction, if any can only be given to the defendant receiver. '

The order has been challenged in this Court Mr. B. M. Patnaik, Jearned counsel appearing for the petitioner, referred to the order passed by the learned Additional Subordinate Judge on 7.1.1983 and contended that since Misc. Case No. 342 of 1982 was closed, no enquiry as directed in the impugned order can take place with regard to assessment of the quantum of rent in respect of the three shop rooms and after such assessment the petitioner cannot be directed to deposit the arrears, as well as, the current rent. It was indeed peculiar that the learned Additional Subordinate Judge passed the closure order on 7.1.1983. Closure of a case is not contemplated in Order 9 of the Code. While disposing of Misc. Case No. 342 of 1982 the learned Additional Subordinate Judge appointed the petitioner as receiver in respect of the three shop rooms and directed that he shall deposit the rent thereof which may be determined after due enquiry. He posted the case to 30.11.1982 for enquiry to assess the quantum of rent. The above arrangement made by the trial Court was not disturbed in M. A. No. 546 of 1982. The logical and inescapable conclusion, therefore, is that the petitioner continues to be the receiver in respect of the three shop rooms and he will have to deposit the rents, the quantum of which will be assessed after due enquiry. In view of the above position, the order passed by the learned Additional Subordinate Judge closing Misc. Case No. 342 of 1982 on 7.1.1983 was a misconception and is non est according to law. The contention of Mr. Patnaik, therefore, cannot be sustained.

3. A receiver appointed under Order 40, Rule 1 shall perform the duties enumerated in Rule 2 of the Code. He shall have to manage the property, collect the rents and profits arising out of the same and do such acts as the Court would direct with regard to application, payment and disposal of such rents and profits. A receiver who has accepted the responsibility of the office as such cannot according to law deny or neglect to perform the duties contemplated in Order 40 of the Code. If he does so he is liable to be removed. In the present case the petitioner has been appointed as the receiver in respect of the three shop rooms and so long he continues as such, he is bound to perform his duties and collect rents and profits of the three shop rooms and act according to the direction of the Court with regard to application, payment and disposal thereof. If he does not want to perform the duties of the receiver or he neglects to do so, it is open to the trial Court to remove him and appoint another suitable person as the receiver in respect of the three shop rooms.

4. Mr. Patnaik urged that the Civil Court cannot determine the fair rent of a tenement because, according to Section of the Orissa House Rent Control Act, jurisdiction has been vested on the Controller for fixation of fair rent. Therefore, the trial Court being a Court ofcivil jurisdiction cannot hold an enquiry for assessment of the rent of the three shop rooms. Learned counsel for the opposite party drew my attention to Section 20(1) (b) of the aforesaid Act and contended that a period of five-years has not elapsed since construction of the three shop rooms and, therefore, the provisions of Section 5 shall not be applicable. This is a matter which the learned Addl. Subordinate Judge shall determine at the time of enquiry. It shall be open to the parties to agitate this point of lack of jurisdiction with facts as to when the construction of the three shop rooms was completed. Such material is not available nor placed during hearing of this case and so I am of the opinion that this is a matter which can be enquired into after the parties place facts and evidence before the trial Court.

5. Learned counsel appearing for the Opposite patty strenuously urged that the civil revision is not maintainable according to Section 115(1) of the Code read with the explanation appended thereto because, the impugned order does not amount to a 'case decided'. According to the principle laid down in A. I. R. 1970 S. C 406 : Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd. and others, a case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy and every order in the suit cannot be regarded as a 'case decided' within the meaning ofSection 115 of the Code. This principle enunciated prior to the amendment ofSection 115 of the Code in the year 1976 still holds good as held by several High Courts and by this Court in 1984(1) O. L. R. 967 : Ramesh Lai Shantuka Suresh Lal Shantaka, and Civil Revision No. 338 of 1980, Deshei Dei and others v. Rama Routa and others. [Please see 1985(1) OLR 12]. Edr By the impugned order the learned Addl. Subordinate Judge held that an enquiry can be held in the suit itself and so he directed the parties to get ready by the next date for the purpose of enquiry about assessment of tent payable in respect of the three shop rooms. When this order was passed, the enquiry itself had not taken place, the quantum of tent bad not been assessed and the petitioner had not been asked to deposit either the arrear or the current rents. Therefore, the right or obligation of the parties in controversy was not decided. This being the position, the impugned order does not amount to a 'case decided' within the meaning of the explanation read with Sub-section (1) of Section 115 of the Code. It was an interlocutory order simpliciter which did not either occasion a failure of justice or cause irreparable injury to the petitioner. The learned Addl. Subordinate Judge did not also exercise his jurisdiction illegally or with material irregularity. I am, therefore, of the view that the Civil Revision is not maintainable according to Section 115(1) of the Code. This Court in M. A. No. 546 of 1982 directed disposal of the suit by the end of the February, 1983. But so long the suit has not been disposed of. The trial Court should, therefore, make sincere efforts for early disposal of the suit.

6. For the foregoing reasons, the Civil Revision is dismissed with costs. Hearing fee is assessed at Rs. 100/-.


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