Kalyan Jyoti Sengupta, J.@mdashThe Court : The aforesaid Motion has been taken out by the plaintiff, above named for appointment of Receiver over and in respect of the joint family properties more specifically described in annexure B'' to the plaint with a direction upon the said Receiver to take symbolic possession of the same and also order of injunction restraining the respondents more specifically respondents Nos. 20 to 31 including their agents, servants and/or assignees in any way encumbering, alienating, disposing or selling joint family property more specifically stated in annexure B'' to the plaint. The aforesaid application has been taken out in connection with the suit filed by the plaintiff claiming declaration that the deed of family settlement and partition dated 15th July, 1989 is invalid and not binding on the plaintiff; partition of the joint family properties belonging to the parties herein as recorded in the deed of family settlement setting aside of the partition of the joint family property .and also for other consequential reliefs. Sum and substance of the case made out in the plaint is that the deed of family arrangement and partition dated 15th July, 1989 is not binding upon the plaintiff as at that point of time he was minor and lie was represented by his father being the natural guardian and his interest at that point of time was not sufficiently protected and/or safeguarded. The property is valuable, yet share of the plaintiff was valued at an abnormally low price. After filing of the said suit the petitioner made interlocutory application claiming for almost similar relief as claimed herein. On 23rd June, 1998 the Hon''ble Mr. Justice Pinaki Chandra Ghose was pleased to pass an order of injunction restraining the respondents and more particularly respondents No. 20 to 31, their respective servants, agents and/or assignees from giving effect to and/or taking any step or further step in terms of and pursuant to deed of family arrangement and partition dated 15th July, 1989. The said application was finally disposed of by confirming the said first order dated 23rd July, 1998 by passing an order on 16th December, 1998 read with a connecting order dated 24th December, 1998 by the Hon''ble Mr. Justice Sujit Sinha, (as His Lordship then was).
The said orders were and still are subsisting.
2. In this application it is alleged that in breach of the aforesaid orders, respondent Nos. 20 to 31 are now trying to sell, alienate, encumber premises No. 3/1, Krishna Behari Sen Street, Kolkata- 700073 and lands situated at Bissu, District - Churu, Rajasthan which stand in the name of Rajasthan Insulators & Industries Private Limited. According to the petitioner, the aforesaid order of injunction is not sufficient to , safeguard his interest in the joint family properties, so Receiver should be appointed.
3. The defendants No. 20 to 31 have filed their affidavit-in-opposition to pass this application contending that in terms of the said family settlement and/or of partition of parties have acted upon. All arrangements have been made for implementation of the same indeed substantially implemented. Only the group of Durga Prosad Poddar to which the petitioner belongs have failed and neglected to implement the said family arrangement despite having received benefit thereunder. For this reason his clients have already filed a suit in this Court being No. 58 of 1997 for getting vacant and peaceful possession of the second floor and the portion of the ground floor of premises No. 3/1, Krishna Bihari Sen Street, Kolkata and also for other reliefs. The present suit has been filed as a counter-blast to the earlier suit so that the deed of partition can be frustrated and for this purpose the plaintiff has been set up the same. Other various facts have been disclosed in the affidavit and in my view those facts are not relevant for deciding the issues involved in the present application. The learned Counsel, in support of the petitioner, submits that the Court''s order of injunction has to be implemented by all forces. The defendants and each of them are bent upon to disobey order of injunction by their act and conduct. To protect and preserve order of injunction there cannot be any alternative method other than to appoint Receiver. The learned Counsel for other defendants except the defendants Nos. 20 to 31 have supported the submission of the learned Counsel for the petitioner.
4. Mr. A.C. Kar, learned advocate while appearing on behalf of the defendants Nos. 20 to 31, strenuously opposed this application contending that this Court previously did not grant relief for appointment of Receiver, as such this prayer cannot be granted as no case of subsequent event has been made out. Such prayer is hit by the principle of constructive res judicata and/or analogous thereto. Moreover, he submits that no prima facie case has been made out for appointing a Receiver for protection or preservation of the suit property. In terms of the family settlement and arrangement as stated above all parties have accepted and acted upon by altering their position. The parties are in possession of the property. Question of disturbing this position does not and cannot arise. As far as the lands situated at Bissu, in the District of Churu, in the State of Rajasthan, is concerned the same belongs to Rajasthan Insulators and Industries Limited being separate juristic entity, and shares whereof might be held by the respective parties. It is settled position of the law that company stands on separate footing from that of the shareholders. The said company is not a party to the suit.
5. He further contends that none of the parties except the plaintiff has come forward to challenge family settlement. The plaintiff is having only 1/36 shares in the property and with this share holdings he cannot disturb the status and possession of all the properties now being maintained by the parties. In support of his contention he has relied on the decision of the Supreme Court Judgment reported in
6. He further contends that interim order already passed by this Court shall be discharged and/or vacated, as there was no warrant to maintain any interim order in the suit of this nature. Moreover, weighing balance of convenience and inconvenience no interim order of injunction far less Receiver is required to be passed.
7. I have heard respective contentions of the leaned counsels and I have considered petition affidavit-in-opposition and other affidavit. The primary consideration of this matter is as to whether the plaintiff has been able to make out any case for appointment of Receiver or not. It is settled position of the law that the Receiver cannot be appointed on mere asking. In a suit for partition or declaration of title inclination of the Court would be to maintain and preserve the status quo unless there would occasion gross injustice or affection of right any of the parties. The power of the Court for appointment of Receiver has been provided under Order 40, Rule 1 of the Code of Civil Procedure. The language of the said Rule without any ambiguity suggest absolute discretion of the Court. The Court will appoint a Receiver when it will feel just and convenient. Mr. Kar has rightly said that no case has been made out to appoint a Receiver. The allegations made in paragraph 8 of the petition is that breach of the order of injunction passed previously by this Court. The respondents Nos. 20 to 31 are now trying to sell, alienate, encumber premises No. 3/1, Krishna Bihari Sen Street, Kolkata. In my view this statement and averment are not sufficient for passing any order for appointment of Receiver. If Receiver is appointed then the parties who are in possession will be disturbed as regards their enjoyment Of the same is concerned. No case far less a strong case has been made out to deprive the possession and enjoyment of the other parties. According to own case of the plaintiff each and every person and parties are co sharer and co-owner (assuming the family settlement is not valid). I am of the further view that if any property is sold and/ or alienated in breach of the order of injunction transferee cannot get any title. Under the law such an action would be invalid and non-est. No allegation has been made as regard destruction, dissipation or wastage of any of the properties for which protection and preservation are necessary. I therefore do not feel it just a convenient to appoint Receiver.
8. As far as the Rajasthan property which stands in the name of the limited company, is concerned, the same in my view cannot be said to be joint family property. The company is a separate juristic legal entity so long company will remain surviving. No shareholder can claim any ownership in the property of the company. The shareholders are entitled to participate in the profits of the company not the properties. It is true that the parties who are not members of the joint family are the shareholders of the limited company, nonetheless such shareholders cannot partake the character, of co-ownership in the property of the company.
9. Mr. Kar has correctly pointed out that the company not being a party to the suit and the property admittedly belonged to it no order can be passed to touch the same.
10. I find that there is some force in the argument of Mr. Kar that the relief for appointment of Receiver is hit by the principle of constructive res judicata as on the plaintiff''s own showing such prayer was made previously and the same was not granted by this Court or is deemed not to have been granted by this Court. It is settled position of the law that the principle of res judicata is applicable in the interlocutory proceedings as well in the subsequent stage of the same proceedings. In this connection a decision of the Supreme Court reported in AIR 1977 SC 392 is very useful.
11. Mr. Kar suggests that I should also vacate the earlier interim order passed by this Court on 24th December 1998. I think I cannot do so as that order has reached its finality and no appeal was preferred against the same. The said order binds everybody and the parties are bound to obey it. This order sufficiently protects the interest of the plaintiff.
12. As such, the order passed on this application stands vacated. I make it clear that previous order will remain operative. Therefore, there is no order on this application.
Cost costs in the cause.
