Case Note & Summary
The appellants, original defendants, challenged an order dated 28 March 2013 passed by the learned Civil Judge, Senior Division, Thane, which allowed the respondent-plaintiff's application under Order 39 Rule 1 and 2 CPC and appointed the plaintiff as a receiver in respect of the suit property, directing the defendants to hand over possession. The respondent had filed a suit under Section 6 of the Specific Relief Act, 1963 on 2 August 2010, alleging that on 22 February 2010 someone broke open the lock and entered the flat, taking away belongings. The appellants filed a written statement cum counterclaim, contending they were residing in the premises since 20 November 2005 and that the question of dispossession did not arise. They also expressed readiness to perform their part of the contract based on an agreement dated 30 July 2005. The respondent filed an application for interim relief in July 2010, which was resisted. The learned judge granted the relief after more than two and a half years, despite the suit being ready for final hearing. The appellants challenged the order. The respondent raised an objection regarding maintainability of the appeal, relying on Kanai Lal Ghose v. Jatindra Nath Chandra. The High Court held that the appeal is maintainable as an order appointing a receiver under Order 40 Rule 1 CPC is appealable under Order 43 Rule 1(s) CPC. The court further held that granting interim relief when the suit is ripe for final hearing is improper; the trial court should have disposed of the suit finally. The appeal was allowed, the impugned order set aside, and the trial court directed to dispose of the suit expeditiously.
Headnote
A) Civil Procedure - Appeal from Order - Maintainability - Order appointing receiver under Order 40 Rule 1 CPC is appealable under Order 43 Rule 1(s) CPC - The objection regarding maintainability was rejected as the order appointing a receiver is specifically appealable (Para 5-6). B) Specific Relief Act - Section 6 - Suit for Possession - Summary Remedy - Section 6 provides a summary remedy for recovery of possession based on previous possession and wrongful dispossession - The suit was filed under Section 6 on 2.8.2010 alleging dispossession on 22.2.2010 (Para 2). C) Civil Procedure - Interim Relief - Timing - Grant of interim relief after suit is ripe for final hearing is improper - The trial court granted relief after more than two and a half years when the suit was ready for trial - Held that the court should have disposed of the suit finally rather than granting interim relief (Para 4, 7).
Issue of Consideration
Whether the appeal from order is maintainable against an order appointing a receiver under Order 40 Rule 1 CPC, and whether the trial court erred in granting interim relief after the suit was ready for final hearing.
Final Decision
The appeal is allowed. The impugned order dated 28 March 2013 is set aside. The trial court is directed to dispose of the suit as expeditiously as possible, preferably within six months from the date of the order. No order as to costs.
Law Points
- Appeal from Order maintainable against order appointing receiver under Order 40 Rule 1 CPC
- Interim relief should not be granted when suit is ripe for final hearing
- Section 6 Specific Relief Act summary remedy for possession
- Order 39 Rule 1 and 2 CPC injunction principles
