G. D. Dube, J. - (1.) BY order dated 11-5-1989, Durga Sahu appellant was appointed receiver of the Cinema known as "Durga Chitra Mandir" which is the subject matter of the dispute between the parties in Original Suit No. 19 of 1988 : Rama Kant Singh v. Ram Sewak Sahu and others pending in the court of Civil Judge, Azamgarh. BY the impugned order, the learned Civil Judge, Azamgarh has removed the appellant from the post of receiver and appointed Sri Krishna Murari Singh, Advocate as receiver. This has given rise to this appeal.
(2.) THE facts of this case are very brief. THE plaintiff-respondent filed application No. C/394 before the lower court making allegation that the Cinema is not being properly managed. It was contended that on 20th March, 1989 and 26th March, 1989, the receiver had withdrawn Rs. 4,05,000/- from the Bank account without the order of the court. THE appellant has not maintained proper accounts. THE expenditures have not been made by cheques according to the orders of the Civil Judge dated 5th July, 1988. THE receiver had been keeping large amount of money of the Cinema in his possession and had been utilizing it for his own benefits. It was further urged that in the night between 18/19-11-1988, Durga Sahu was arrested at the Bhagwati Railway Crossing of West Bengal with stolen railway property. He had surrendered before the Sub Divisional Magistrate, Durgapur in a criminal case and was released on bail the same day. On these grounds, it was contended that Durga Sahu was not a proper person to remain as a receiver. THE plaintiff also complained that the receiver had left the Cinema business without informing the court and leaving it in the hands of unauthorised persons. This act was done particularly in contravention of the order dated 6-12-88 of the lower court. From the facts stated in the impugned order, it transpires that this application No. C/394 was moved on 5-5-1989. Objections were invited from the defendant appellant and 9-5-1989 was fixed for hearing. On that date, the appellant moved application No. C/399 for adjournment. 10-5-1989 was fixed for hearing. The lower court has mentioned that, on the date of hearing, the court hours were from 6.30 a.m. to 12.00 noon. On 10-5-89, the parties of both sides had appeared. The counsel for the appellant had stated orally that the plaintiff may argue his case and he will argue on 11-5-1989. On 11-5-1989, the plaintiff-respondent was present throughout, but none was present from the side of the defendant-appellant. At 10.00 a.m., an application was moved by the defendant-appellant making some allegations against the Presiding Officer and praying that as he will move a transfer application some time be granted to him for obtaining the stay order. The learned Civil Judge has observed that as the application was moved malafidely with wrong allegations, he had rejected it and had directed the parties to furnish the list of two names each for appointment of a receiver. The plaintiff had furnished the list at 11.45 a.m. The defendant-appellant had not supplied any name. Thereafter, the learned trial court had passed the impugned order. From the facts stated above it is obvious that the impugned order is ex parte. The defendant has not filed any objection so far.
(3.) IT has been contended on behalf of the appellant that application No. C/394 was a very lengthy document. Some facts relating to incident in West Bengal were alleged. The appellant was also required to make some detailed objections regarding the accounts. He had to explain his conduct as a receiver. Hence, there was no justification to adjourn the hearing on 9-5-1989 to 10-5-1989. IT was urged that he had tried to move an application dated 10-5-1989, copy thereof is Annexure "2" to the affidavit accompanying application for staying the proceedings dated May 10, 1989 but was unsuccessful. IT was further urged that when allegation had been made against the Presiding Officer that the appellant had no faith in the Presiding Officer, then some reasonable time ought to have been allowed to the appellant to obtain stay order. The learned counsel for the appellant expressed surprise over the whole proceedings of lower court. IT was contended that by 11.45 a.m. the list of receiver had not been supplied. Hence, after 1145 a.m, the Presiding Officer must have applied his mind to the matter. The court hours were only up to 12.00 noon. IT was, therefore, urged that it was not at all possible for the Presiding Officer to dictate the detailed impugned order running in four foolscap pages containing various details of the facts relating to the procedure adopted in this case and the facts alleged against the defendant-appellant. Learned counsel for the appellant also urged that in this matter the defendant was required to collect materials from West Bengal for the purposes of showing that the charges made against him were not of such nature as to make him unfit to act as a receiver. He was also required to collect materials from the Bank, shift them in a proper manner and show that he managed the Cinema in a most proper manner. Both the parties had annexed some papers showing the accounts of the Cinema. Learned counsel for the appellant had urged that from the accounts submitted in this Court as well as in the lower court, it is clear that the defendant-appellant had been maintaining accounts properly. The learned counsel for the plaintiff-respondent urged that the actual intention of the defendant-appellant was to delay the disposal of the application C/394 that is why he was seeking adjournment. It was urged that copy of the application dated 5-5-1989 had been received by the appellant and, therefore, he had ample time upto 10-5-89 to prepare his objections. The learned counsel for the respondents also urged that as the appellant was arrested in connection with theft of railway property and also had surrendered in a criminal matter pending before the Sub Divisional Magistrate, Durgapur, he was not entitled to remain as a receiver. It was pointed out that, on several occasions, the receiver had left the management of the disputed property in the hands of unauthorised persons. The receiver had not obtained any permission of the trial court to leave the station. It was contended that the receiver had not shown the income from cycle stand, cinema slides and canteen. It was also urged that the court had authorised the receiver to spend only rupees two lakhs towards loan whereas the receiver had spend Rs. 4,00,000/-. It was pointed out that when the receiver took charge, there was Rs. 1,47,000/.- in the Bank. This amount had not been shown in the accounts.;