CHAMANKHAN S/O. ALLABHAKSHA PATHAN, vs. RIZWANBEGUM W/O. ADAMKHAN PATHAN,

WP No.68395/2011 :1: IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT DHARWAD DATED THIS THE 7 TH DAY OF FEBRUARY, 2012 BEFORE THE HON’BLE NIR.JUSTICE AJIT J.GUNJAL WRIT PETITION No.68395/2011 (GM-CPC) BETWEEN: 1. SRI.CHAMANKHAN Sb. ALLABHAKSHA PATHAN, AGE: 48 YEARS, CCC: BUSINESS, R/O: RASULPUR ONI, NEAR K C C BANK, DHARWAD. 2. SHAFIQ W/O. CHAMANKHAN PATHAN, AGE: 40 YEARS, 0CC: HOUSE HOLD WORK, R/O: RASULPURONI, NEAR K.C.C. BANK, DHARWAD. PETITIONERS (BY SRI.SHRIKANT T. PATIL, ADV.) AND: 1. SMT.RIZWANBEGUM W/O. ADAMKHAN PATHAN, AGE: 32 YEARS, 0CC: HOUSE HOLD WORK, R/O: RASOOLPUR ONI NEAR K.C.C. BANK, DHARWAD. 2. SRI.ADAMKHAN S/C, ALLABHAKSHA PATHAN, AGE: 40 YEARS,. CCC: BUSINESS, R/O: RASOOLPUR ONI, NEAR K.C.C.BANK, DHARWAD. . ..RESPONDENTS (BY SRI.ARVIND D.KULKARNI, ADV FOR C/Ri)

WP No.68395/2O I THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY II ADDITIONAL SENIOR CIVIL JUDGE DHARWAD IN M.A. NO.41/2011 DATED:22/11/2011 VIDE ANNEXURE-E. THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER This petition under Articles 226 and 227 of the Constitution of India is by defendants No.2 and 3. Plaintiff/respondent No.1 herein filed a suit in O.S.No.67/2011 on the file of the Prl. Civil Judge (Jr.Dn.), Dharwad, for the dissolution of the partnership deed dated 03.01.2006 and for settlement of accounts with reference to the books of accounts etc., During the pendency of the said suit, an application is moved under Order LX Rule 1 of the Code of Civil Procedure for appointment of a receiver so as to take possession of the disputed property and maintain accounts as well as to take care of the property pending disposal of the suit. The said application was seriously opposed. The lea rned,

WP No.68395/2011 :3: trial Judge nevertheless has allowed the application as against which the defendants/petitioners filed an appeal. The learned Appellate Judge has confirmed the said order. Hence, this writ petition. 2. I have heard Mr.Patil, learned counsel for the defendants/petitioners and Mr.Kulkarni, learned counsel for the plaintiff/respondent No.1. 3. Apparently, whenever an application is moved under Order XL Rule 1 of the Code of Civil Procedure, the Courts are required to be little more circumspect inasmuch as that would tantamount to displacing a person who is in possession. Order XL Rule 1 would contemplate that where it appears to the Court to be just and convenient, pursuant to the order, a Court may by order appoint a receiver, remove any person from the possession or custody of the property, commit the same to the possession, custody or management of the

WP No.68395/2011 :4: reciver. Indeed, sub rule 2 clearly indicates that nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. In the case on hand, the reason for seeking appointment of a receiver is on the premise that the defendants who are managing the property have not submitted the accounts. 4. During the pendency of the present proceedings in this Court, defendants have made available certain documents which are in the nature of Income Tax Returns and also the books of accounts maintained by them. A copy of the same is served on the counsel for the plaintiff who disputes the veracity of the Income Tax Returns corresponding to the books of accounts maintained and bank’s statement. Indeed, this material was not placed before the learned trial Judge for him to decide whether indeed it is necessary to appoint a

WP No.68395/2O receiver so as to displace the defendants. Apparently, the learned trial Judge is required to reconsider the said application with reference to the documents which are produced in this Court and take a decision to appoint a Receiver or not. Hence, the following order: i) the petition is allowed, ii) the impugned order is set aside, iii) the matter stands remitted to the learned trial Judge for fresh disposal, iv) the learned trial Judge shall take into consideration the material which is placed before him, v) if the learned trial Judge comes to a conclusion that a receiver is required to be appointed, he shall ensure that the person who is capable of managing the property is to be appointed,

WP No.68395/2011 :6: vi) the trial Judge shall dispose of the application for appointment of a receiver within one month from today. If a request is made by the defendants/petitioners for return of the documents, registry shall do so under an acknowledgment. The defendants to produce all the documents before the learned trial Judge. j Sd/s Jm/- .