Wednesday, 4 December 2019

Whether court can suo motto appoint court receiver?

It would also be advantageous to refer to the decision of
this Court in Mulji Umershi Shah and Etc. Vs. Paradisia Builders Pvt.
Ltd AIR 1998 Bom 87. The question before the Court was whether the
Trial Court was justified in appointing a receiver while refusing to
grant temporary injunction in favour of the Plaintiff and in absence of
any application for appointment of receiver. The observations of the
learned Single Judge of this Court, (as his lordship then was) are as
under:-
" 19. In my view, in suitable cases, the Court is not
powerless to pass appropriate order for appointment of
receiver without any application by any of the parties while
rejecting the application for temporary injunction. Such
power of course has to be exercised sparingly and in
exceptional cases where dismissal of an application for grant
of temporary injunction may lead the parties to take law in
their own hands and use their own devices either for
protection of unlawful possession of recent origin or for
gaining possession or such like circumstances. There is no
impediment put by the Code of Civil Procedure in passing
such order to prevent the ends of justice being defeated. Such
order may be imminently required to be passed also so that
possession may be made over to that party who is prima facie
entitled to possession but is deprived by unlawful conduct or
illegal act of the other party. An appointment of receiver can
be made on the application of either parties to the litigation
as well as suo motu and therefore, absence of application
shall not preclude the Court from passing such order if it is
just and convenient The cases may be varied and many. A
party may not have any right to the property and still comes
in possession of the property unlawfully and illegally which
may be of recent origin and on that basis may seek to protect
his possession by filing suit for injunction and by making an
application for temporary injunction. The Court may find that
such person has no title, right or interest in the property and
is not in lawful possession and, therefore, is not entitled to
grant of any temporary injunction. To avoid grave situation
where the parties may take law in their own hands even while
temporary injunction has been refused, in the absence of any
application, the Court may make an order of appointment of
receiver. Such exceptional order is permissible under law to
prevent larger mischief if it is just and convenient in the facts
and circumstances of the case. There is nothing wrong if by

taking such recourse the plaintiff who has unlawfully come in
possession recently is dispossessed during pendency of suit. In
suitable and appropriate case, if the trial Court appoints the
receiver while rejecting the application for temporary
injunction, it cannot be said that such power is without
jurisdiction…"
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1189 OF 2014
WITH
NOTICE OF MOTION NO.1789 OF 2017
IN
SUIT NO.443 OF 2013

Rajdai Nandlal Shaw  Vs  Mahendra Mangruram Gupta 


CORAM : SMT. ANUJA PRABHUDESSAI, J.
ORDER PRONOUNCED ON :-26/11/2019.
Read full judgment here: Click here
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