SHARMA, J. - (1.) MADRAS High Court in T. Krishnaswamy Chetty vs. C. Thangavelu Chetty (1) had magnified the words `just and convenient' used in Order 40, Rule 1 CPC by embodying five requirements "panch SADACHAR" necessary for appointment of Receiver thus- (i) The appointment of a Receiver pending a suit is a matter resting in the discretion of the Court. (ii) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. (iii) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his right he must be reasonably clear and free from doubt. the element of danger is an important consideration. (iv) An order appointing Receiver will not be made where it has the effect of depriving a defendant of a `de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be `in medio', that is to say, in the enjoyment of no one, and (v) The Court on the application made for the appointment of a Receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
(2.) BEARING these principles in mind, I proceed to adjudicate upon the contro-versy posed before me in the instant miscellaneous appeal preferred against the order dated 22. 3. 1999 of the learned Additional District Judge No. 2 Kota whereby application of the plaintiff respondent u/o. 40 R. 1 CPC was allowed and Receiver was appointed. The parties shall be referred hereinafter in the same manner as they have been arrayed in the suit. The plaintiff instituted a suit for partition against the defendants claiming one third share in the suit property. Relief in respect of rendition of accounts of the firm Kesri Chand Manak Chand was also sought. Alongwith the suit an application u/o. 40 R. 1 CPC seeking appointment of Receiver was also filed. Defendants No. 1 & 3 who are the appellants in the instant appeal, contested the application on the ground that partition of the suit property had already taken place orally and thereafter a memorandum was drawn on 22. 2. 1978 by the plaintiff himself in his own handwriting. The plaintiff acted upon the partition by selling several properties. In the various sale deeds executed in the year 1982 the plaintiff specifically sta-ted that he received the properties in partition. It was also averred that after partition the firm Kesri Chand Manak Chand did not belong to joint family. Learned Court below after hearing the parties allowed the application as indicated hereinabove. I have pondered over the rival submissions and carefully weighed the ma-terial on record placed before me.
(3.) A look at the impugned order which runs almost in 20 pages demonstrates that the learned Court below in order to appreciate the documents on record placed reliance on Harshvardhan Singh vs. Ranveer Singh (2), wherein this Court held that an unregistered document required under law to be stamped and regis-tered can not be admitted in evidence even for collateral purposes. Matter of Harshvardhan Singh went upto Supreme Court. Their Lordships of the Supreme Court in Civil Appeal No. 7631 of 1997 passed following orders on 10. 11. 1997- " Leave granted on consensus. As suggested by learned counsel, the impugned judgment and order of the High Court shall stand set aside and proceedings before the trial Court to go on as before, subject to the document in question i. e. the family settlement being treated as `marked' and not `admitted' in evidence straightway. The question as to its admissibility would have to be determined at the conclusion of the suit. All other defences to the admissibility of the document are kept upon till determined by the trial Court. It is so ordered. This step disposes of the appeal. " In the impugned order learned Court below determined the admissibility of the memorandum alleged to have been drawn on 22. 2. 1978 at the stage of disposing the application u/o. 40 R. 1 CPC relying upon the ratio of Harshvardhan Singh's case whereas the admissibility of the said document ought to have been determined at the conclusion of the trial as indicated by their Lordships of the Supreme Court. From the entire order it also does not appear whether the suit property is shown to be `in medio' or there exists some emergency so as to attract provisions of Order 40, Rule 1 CPC. Mr. Chand Karan Garg, learned Senior Advocate attempted to establish by drawing my attention towards various documents that the alleged memorandum was a faked document and it was rightly disbelieved by the Court below. Mr. Garg, learned counsel also made efforts to justify the impugned order by placing reliance on Nani Bai vs. Gita Bai (3), Amrish Kilachand vs. Indian Commercial Co. & Ors. , (4), Girdhari Lal vs. Hukam Singh (5), Surendra Kumar vs. Phool Chand, (6) and Basanta Ram vs. Dasondhi Mal ;