Prafulla C. Pant, J.
1. This appeal, preferred under Order XLIII Rule (1)(s) of the Code of Civil Procedure, 1908, is directed against the order dated 23rd of May 2009, passed by the trial court (Civil Judge (Senior Division), Haridwar), in Original Suit No. 254 of 2007, whereby the said court has allowed the application under Order XL Rule 1 of the aforesaid Code, for appointment of receiver.
2. Heard learned Counsel for the parties and perused of papers on record.
3. Brief facts, giving rise to this appeal, are that plaintiff / respondent No. 1 Bihari D. Chhabariya, claiming himself to be trustee / secretary of Maharaj Chetan Dev Awadhoot Ji Ashram Association, Mahatma Gandhi Marg, Kankhal, Jawalapur, District Haridwar, instituted Suit No. 254 of 2007, against the defendant No. 1 Mahant Mohan Das (present appellant), for declaration that the said defendant has no concern whatsoever with the property in suit. A decree in the nature of mandatory injunction is also sought directing the defendant No. 1 to remove his unauthorized occupation from the property in suit shown by letters QRST and IJKL (under Head 'C') at the foot of plaint. A permanent prohibitory injunction is also sought directing the defendant No. 1 not to interfere in the functioning of plaintiff and defendants No. 2 to 7 (respondents No. 2 to 7) as members of Board of Trustees, relating to the property in suit. Lastly, it is prayed that a decree of accounting be passed against the defendant No. 1 to render the accounts of the property in suit to the plaintiff and defendants No. 1 to 7 (copy of the plaint is filed with the appeal).
4. It is pleaded in the plaint by the plaintiff that the plaintiff is trustee and secretary of the trust property in suit. It is further pleaded that defendant No. 2 is the Chairman / trustee, defendant No. 3 is the Vice- Chairman / trustee, defendant No. 4 is Treasurer / trustee and defendants No. 5, 6 and 7 are the other trustees of the trust property in suit shown by letters ABCDEF (under Head 'A'), MNOP (under Head 'B'; IJKL and QRST (under Head 'C'), apart from the property shown under Head 'D' (at Triveni Ghat, Rishikesh), at the foot of the plaint. Property mentioned under Head 'A' (shown by letters ABCDEF) was purchased by late Maharaj Chetan Dev Awadhoot Ji vide registered sale deed dated 19.09.1897. Said property was raised and developed for religious and charitable purposes. Maharaj Chetan Dev Awadhoot Ji executed a Will dated 10.03.1901, wherein it was provided that the property shall be looked after by the Board of Trustees appointed in the manner mentioned in the Will. After death of Maharaj Chetan Dev Awadhoot Ji, Board of Trustees started administering the property. In the year 1912, a Memorandum of Association was prepared after constituting a Society, and it was got registered (Registration No. 190 of 1912 dated 27.07.1912) under the Registration Act. Since, of June 1994, Swami Brahmhari submitted his resignation from the post of Mahant / Manager to the Board of Trustees. Where after, one S.S. Sirohi was appointed as Officer on Special Duty, and one Balram Sharma was appointed as Additional Officer on Special Duty to look after the trust property, who used to collect the rent from the tenants in the property in suit. Property shown under Head 'B' (shown by letters MNOP), is infact, part of property shown under Head 'A', which is used as 'YATRI NIWAS' (Pilgrims Residence). Property of Rishikesh shown under Head 'D' in the plaint was purchased by late Swami Hari Das, who dedicated it to the trust for religious purposes. In the year 1972, the then Mahant / Manager filed an application under Section 7 of Charitable and Religious Trust Act, 1920, before the District Judge, Saharanpur (earlier Haridwar was part of District Saharanpur), seeking permission of the court to let out 73 rooms of the Pilgrims Residence (YATRI NIWAS). Said application was registered as Civil Misc. Case No. 85 of 1972. These 73 rooms, after the permission was granted by the court, are known as the Board of Trustees used to live at separate places they appointed initially one Swami Chidghana Nandji as mahant to look after the property dedicated by Maharaj Chetan Dev Awadhoot Ji for the religious / charitable purposes. From time to time mahants / managers went on changing, and finally, Swami Brahmhari was appointed Mahant / Manager by the Board of Trustees on 11.04.1980. On 30th 'GRAHASTHA BARA' (Family Complex). The property in question is recorded as property No. 22 in the records of the Municipal Board, Haridwar, and known as Chetan Dev Ki Kutiya, Kankhal, with names of mahant / managers as owners / occupiers of the property. In the year 1996, plaintiff and defendants No. 2 to 7 came to know that defendant No. 1 has got his name entered as Mahant in the record of the Municipal Board, and occupied a portion of the property. On this, an appeal (No. 09 of 1999) was filed for cancellation of the mutation in favour of the defendant No. 1, before the Chief Judicial Magistrate, Haridwar, which was dismissed. On this, Writ Petition No. 7064 of 2001 was filed by the plaintiff before the High Court. The High Court vide its order dated 29.08.2002, quashed the order dated 28.07.2001, passed by the Chief Judicial Magistrate, and directed said authority to decide the matter afresh. The Chief Judicial Magistrate reheard the appeal and remanded the matter to Municipal Board, Haridwar, vide his order dated 26.07.2004, for fresh decision. The plaintiff has submitted documentary evidence before the Municipal Board for its consideration.
5. The plaintiff's case is that defendant No. 1 Mahant Mohan Das was never appointed by the Board of Trustees as Mahant / manager to look after the property in question belonging to the trust. It is alleged that the defendant No. 1, who is an influential person, has trespassed the property and illegally persuaded the tenants in the property not to pay rent to the Board of Trustees. It is pleaded in the plaint that the defendant No. 1 has no right to interfere with the working of the Board of Trustees, and to occupy the property and realize the rent. A Writ Petition No. 379 (M/B) of 2007, was instituted on behalf of the trust before this High Court. Said writ petition was dismissed on 06.04.2007, by this Court observing that the matter involved serious disputed questions of fact, and the remedy lies in the civil court. A Special Leave to Appeal Petition No. 14267 of 2007 was filed before the Supreme Court of India. However, said petition was also dismissed on 24.08.2007, with the observation that petitioner is at liberty to file appropriate civil suit within a period of eight weeks, and that the safety and property of public trust has to be protected. As such, Suit No. 254 of 2007 was instituted by the plaintiff before the Civil Judge (Senior Division), Haridwar.
6. A written statement (copy of which is Annexure - 2 annexed with the appeal) was filed on behalf of defendant No. 1 (present appellant) before the trial court, in which only this much is admitted that the property in suit is known as 'Chetan Dev Ji Ki Kutiya' and at times known as 'Chetan Dev Awadhoot Ashram'. It is also admitted that the tenants used to pay rent to the mahants, who looked after the property. It is also admitted that in the Municipal record the name of the answering defendant was recorded as owner / occupier. Also, the facts relating to the dismissal of the writ petition and special leave petition are admitted. Rest of the pleas taken in the plaint are denied. In the additional pleas it has been stated in the written statement that the suit is not maintainable for want of cause of action. It is denied that the plaintiff is trustee / secretary of the Maharaj Chetan Dev Awadhoot Ji Ashram Association Trust. Status of the defendants No. 2 to 7, as trustees, is also denied. It is denied that the answering defendant had no concern whatsoever in management of the property in suit. It is pleaded by the defendant / appellant in the written statement that the property belongs to 'UDASIN MATH', and the defendant / appellant is its Mahant. It is further pleaded that all the papers relating to trust are forged. In Para 7 of the additional pleas it has been stated that Maharaj Chetan Dev Awadhoot Ji was an Udasin Sadhu (a saint who believed in the philosophy of UDASIN (Neutrality) Sect), and he established Chetan Dev Kutiya Udasin Math for propagating religious and spiritual principles and for providing food and shelter to the saints belonging to said sect. He (Maharaj Chetan Dev) also got constructed rooms for the pilgrims. The existence of Will dated 10.03.1901 said to have been executed by Maharaj Chetan Dev, is denied by the answering defendant / appellant. It is further pleaded that no rights whatsoever is given to any trustee or Board of Trustees to look after the property in suit. It is of June 1994 to the Board of Trustees. It is pleaded by the defendant / appellant that infact Swami Brahmhari continued as Mahant till 05.04.1996, when he vacated mahantship, and the saints of Udasin Sect enthroned defendant / appellant Mohan Das as 'Mahant' in place of Swami Brahmhari by applying vermilion and offering CHAADAR (Shawl) to him. The answering defendant / appellant denied that S.S. Sirohi or Balram Sharma ever acted as Officer on Special Duty and Additional Officer on Special Duty or that they ever collected rent from the tenants on behalf of the Board of Trustees. Defendant No. 1 / appellant has further denied that the plaintiff took permission to let out the portion known as 'GRAHASTHA BARA' (Family Complex) from the District Judge, Saharanpur, by moving an application before said authority. In Para 17 denied that the Board of Trustees got the 'Association' as Society registered under the Registration Act. It is further pleaded that even if such a Society is registered, it does not confer any right to the trustees in respect of the property in suit. In Para 13 of the additional pleas of the written statement, it is denied that from time to time Mahants / managers were appointed by the Board of Trustees. However, it is admitted that Swami Chidghana Nandji was Mahant of the property in suit. It is stated that only those mahants who were in actual occupation of the property in suit were recorded in the Municipal records. It is pleaded that it is wrong to say that Swami Brahmhari submitted his resignation on 30th of the additional pleas of the written statement it is pleaded that Maharaj Chetan Dev himself acted as Mahant till his death. Thereafter, the mahants were appointed by the saints of Udasin Sect, and not by the Board of Trustees. It is denied by the answering defendant / appellant that he was in collusion with Municipal Board. He has further pleaded that he did not illegally occupy the property in suit. It is also pleaded that the suit is hit by provisions contained in Section 92 of the Code of Civil Procedure, 1908. It is alleged by the defendant / appellant that plaintiff has issued notices to the tenants without any authority and tenants are not paying rent to the Board of Trustees. Lastly, it is stated that the defendant No. 1 / appellant is looking after the property of the Math in the capacity of the mahant, and he has every right to recover the rent from the tenants in the property. In Para 33 of the additional pleas of the written statement it is also stated at the end of the written statement that suit is barred by Section 34 and 41 of the Specific Relief Act, 1963, and that the suit is also barred by Order VII Rule 14 of the Code of Civil Procedure, 1908.
7. The plaintiff moved an application 7-C (copy Annexure -3 to the appeal) before the trial court, with the suit for appointment of receiver stating that defendant No. 1 is illegally interfering in the functioning of the Board of Trustees, and illegally occupying the property, and started realizing the rent from the tenants without any authority. Prayer made in the application 7-C is that the receiver should take possession of the property shown by letters QRST (under Head 'C'), and manage the property till the disposal of the suit. It is also prayed that possession of the property, shown by letters IJKL (YATRI NIWAS), should be taken by the receiver and safety to the property be provided from the defendant No. 1, and his agents. The defendant No. 1 opposed said application and filed his objection. The trial court vide its impugned order dated 23.05.2009, allowed the application (7-C) moved by the plaintiff for appointment of receiver under Order XL Rule 1 read with Section 151 of the Code of Civil Procedure, 1908. By the impugned order, the trial court appointed Vijay Sharma, Advocate and Ramesh Chand Nankani, Advocate, as two receivers to take possession of the property from defendant No. 1, and manage and keep the accounts of the property. The trial court further directed that the receiver should be paid Rs. 6,000/- per month as fee for doing job of receiver. Aggrieved by said order, this appeal is filed by the defendant No. 1 Mahant Mohan Das on 04.06.2009. Hon'ble the Chief Justice, before whom this appeal was listed on 05.06.2009, passed an interim order appointing Shri R.R. Agarwal, a retired District Judge, who lives in Dehradun, as receiver in place of Vijay Sharma and Ramesh Chand Nankani, Advocates. By the interim order dated 05.06.2009, it is directed that Shri Agarwal shall receive Rs. 10,000/- per month as fee, apart from transportation charges between Dehradun and Haridwar. A charge report dated 06.06.2009 has been submitted by Shri R.R. Agarwal, receiver, to this Court.
8. Before further discussion it is pertinent to mention here relevant provision of law application to the case. Rule 1 of Order XL of the Code of Civil Procedure, 1908, reads as under:
1. Appointment of receivers. -(1) Where it appears to the Court to be just and convenient, the Court may by order-
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver, and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize 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.
HIGH COURT AMDNEMDNTS
Allahabad. -In Sub-rule (2) after the words 'any person' insert a comma and the words 'not being a party to the suit'
[Notification No. 2875 / 35(a) -5(2); 10-7-1943]
[Above High Court Amendment is applicable to the State of Uttarakhand under Section 86 of the U.P. Re- organisation Act, 2000 (Central Act No. 29 of 2000.] From the above provision of law it is clear that the object of appointment of receiver is protection and preservation of the property in suit. It is also settled principle of law that before an order is passed under Rule 1 of Order XL of the Code, the plaintiff is required to show prima facie case in his favour, and there must be emergency of danger or loss to the property in suit. The order appointing receiver is passed in exceptional cases, and not to be passed in a routine manner. Both learned Counsel for the defendant No. 1 / appellant and learned Counsel for the plaintiff / respondents read out before me Para 8 of Krishna Bhagwan Agarwal and Anr. v. Ist Addl. District Judge, Badaun and Ors. MANU/UP/0396/1999 : 1999 (2) A.W.C. 1753, in which the Allahabad High Court, relying the principle of law laid down in T. Krishna Swami Chetty v. C. Thangavelu Chetty A.I.R. 1955 Mad 430, has observed as under:
8. The question which stares at our face is whether the principles of law laid down in the aforesaid cases apply to the factual matrix of the present case. There is no doubt about the fact that the appointment of a receiver is recognized as one of the harshest remedies which the law provides for the enforcement of the rights and is allowable only in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to 'manifest peril'. Therefore, this exceedingly delicate and responsible duty has to be discharged by the Court with utmost caution only when five requirements embodies in the words 'just and convenient' in Order XL, Rule 1 are fulfilled by the facts of the case under consideration. The above observations came to be made in the case of T. Krishna Swamy Chetty v. C. Thangavelu Chetty AIR 1955 Mad 430. The five requirements laid down therein are as follows:
1. The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
2. 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.
3. Not only must the plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency of danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.
4. An order appointing a 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,
5. 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.
The above case was followed by the Mysore High Court in Srinivasa Rao v. Babu Rao AIR 1970 Mys 141. In the case of Dilman Rai v. Srinarayan Sharma AIR 1983 Sikkim 11, it was observed that an order appointing receiver will not be made where it has the effect of depriving the defendant of a 'de facto' possession since that might cause irreparable wrong. It was cautioned that the Court will not act on a possible danger only and 'remote or part damage' will not suffice as a ground, but there must be well grounded apprehension of immediate 'injury and danger' and 'danger of suffering irreparable loss'. A division Bench of this Court had held in S.B. Industries Freegunj v. United Bank of India MANU/UP/0045/1978 : AIR 1978 All 189, that to justify the appointment of receiver plaintiff must establish firstly, a prima facie good case and secondly, that it is necessary to prevent fraud and to protect and preserve the property against imminent danger, before he comes and seeks the relief of appointment of receiver. Before the plaintiff can have a receiver appointed he has to satisfy the Court that he has an interest in the property involved in the suit, i.e., the subsisting interest on the basis of partnership, and that he has special equity in his favour. Appointment of a receiver is an equitable relief and will be granted on equitable considerations mainly.
9. Punjab and Haryana High Court in Nihalchand L. Jai Narain and Ors. v. Ram Niwas Munna Lal and Ors. MANU/PH/0120/1968 : AIR 1968 Punjab & Haryana 523, has diluted the condition No. 4 mentioned in the Allahabad High Court and Madras High Court judgment which says that an order of appointing a receiver will not be made where it has the effect of depriving of a defendant of his 'de facto' possession since that might cause irreparable wrong. The Punjab and Haryana High Court has opined that there might be cases where the appointment of receiver may be made to protect the property even if possession of the defendant gets disturbed.
10. The Jammu and Kashmir High Court in Vijay Kumar and Anr. v. B.K. Thapper and Anr. AIR 1976 J&K; 30, while interpreting the expression 'just and convenient' in Rule 1 of Order XL of the Code, has observed in its Para 6, as under:
6. In the ordinary sense, the words 'just and convenient', would denote what is practicable and what the interests of justice require. Now what is practicable and in the interests of justice in one case may not be so in the other case. Different considerations arise in different cases depending on the facts and circumstances of each case. The Court has, therefore, a wide discretion in the matter of appointment of Receiver but the discretion must be sound and reasonable. The court may be influenced mainly by the particular facts of each case, it must also be guided by broad and well established principles which have covered the previous practice and which, though unexpressed, may be said to be lying dormant in the provisions of the Code.
11. After discussing the principle of law laid down by the various High Courts in the mater of appointment of receivers, now I come to the rival contentions of the parties in this case to show as to why or why not the appointment of receiver is required in this case
12. Mr. L.P. Naithani, Senior Advocate appearing on behalf of the defendant No. 1 / appellant submitted that Chetan Dev Ki Kutiya (property in suit) is a property of Math. He drew attention of this Court to the case of Krishna Singh v. Mathura Ahir and Ors. AIR 1980 Sc 707, and argued that 'Math' in ordinary language signifies an abode or residence of ascetics. In the legal parlance it connotes a monastic institution presided over by a superior and established for the use and benefit of ascetics belonging to a particular order who generally are disciples or co- disciples of the superior. Referring to above case, learned Counsel for the appellant further submitted that the law is well established that succession to mahantship of a Math or a religious institution is regulated by custom or usage of the institution. I have gone through aforesaid case law. In Para 30 of the said case the Apex court, while observing that succession of mahantship of a Math is regulated by custom has further observed that where rule of succession is laid down by the founder himself who created the endowment, it over rides the custom in the matter of succession of the mahantship. That being so, it is not always that the mahantship is succeeded by custom. In this case, the plaintiff has come with a case that Maharaj Chetan Dev Awadhoot Ji, who purchased the property and dedicated it for religious and charitable purposes, has executed a Will in the year 1901, where after, a society (Maharaj Chetan Dev Awadhoot Ji Ashram Association) was got registered with Memorandum of Association which contained rules as to the functioning of the Society. A copy of said Memorandum of Association with rules and regulations is annexed as Annexure C.A. 7 to the counter affidavit filed on behalf of the plaintiff / respondent. Clause (h) of Rule 8 of the rules of Society empowers the Board of Trustees to suspend, dismiss or punish any servant of the Association appointed by the Management Committee. Rule 10 contained with Memorandum of Association of the aforesaid Society further empowers the Board of Trustees to appoint, dismiss or suspend the Mahant of the Ashram. As such, prima facie, this Court is of the view that the trial court has committed no error of law in treating that prima facie case has been made out by the plaintiff as against the defendant No. 1.
13. Learned Counsel for the defendant No. 1 / appellant Mahant Mohan Das submitted that the Will said to have been executed by the plaintiff has not seen the light of the day. He contended that under Right to Information Act, defendant No. 1 was informed by the Deputy Registrar, Firms, Societies and Chits, Haridwar, that no such Will is found on the record of the office of the Deputy Registrar. In reply to this Mr. Sharad Sharma, Senior Advocate appearing on behalf of plaintiff / respondent No. 1 drew attention of this Court to Appendix 'A' with the Memorandum of Association of the Society (Maharaj Chetan Dev Awadhoot Ji Ashram Association) which is part of Annexure C.A. 7 to the counter affidavit. Said document shows that the Will dated 10th of March 1901, was executed in Lahore, and not in Haridwar. In the circumstances, case of plaintiff / respondent No. 1 cannot be rejected on the basis of information (Copy Annexure R.A. 2 to the rejoinder affidavit) received under Right to Information Act from the office of the Deputy Registrar, Firms, Societies and Chits, Haridwar that there is no copy of the Will available in that office.
14. Referring to Article 25 and 26 of the Constitution of India, it is argued on behalf of defendant No. 1 / appellant that religious rights to function as mahant cannot be interfered with, by appointing a receiver. In this connection, reliance is placed on behalf of defendant No. 1 / appellant to the case of Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt MANU/SC/0136/1954 : AIR 1954 SUPREME COURT 282. I have gone through said case law. In aforesaid case the Apex court has nowhere held that receiver cannot be appointed in respect of the property in possession of a mahant with regard to which a case has been made out in a suit for such appointment.
15. Referring to the case of Amar Prakash and Ors. v. Prakasha Nand and Ors. MANU/SC/0558/1979 : AIR 1979 SUPREME COURT 845, learned Counsel for the defendant No. 1 / appellant argued that Math can be divided only to three categories, namely Mourasi, Panchayati and Hakimi. It is further contended that in the case of Mourasi Maths, office of mahant gets devolved on the chief disciple of the existing mahant. In the case of Panchayati Maths, the panchayat of saints decides as to who would succeed the deceased mahant. In the case of Hakimi Maths, appointment of next mahant is vested in the presiding mahant, who nominates one of his disciples to succeed him. Had there been no Society registered in 1912 by Maharaj Chetan Dev Awadhoot Ji, Ashram Association as mentioned above, on the basis of the contention of learned Counsel for the defendant No. 1 / appellant it could have been said that the defendant No. 1 / appellant's functioning is independent of the control of the Board of Trustees of the trust property. But, at this prima facie stage, it is difficult to say if the defendant No. 1 had independent right of mahantship, as pleaded by him. It is pertinent to mention here that it is admitted in the written statement that the property was purchased by Maharaj Chetan Dev Awadhoot Ji, and one of the Mahant Swami Chidghana Nand, who acted as mahant, was his disciple. Name of Chidghana Nand also figures in the Memorandum of Association of Maharaj Chetan Dev Awadhoot Ji Ashram Association, registered in the year 1912, as member of the Management Committee. As such, the plaintiff's case appears stronger as against that of defendant No. 1 / appellant, at this stage.
16. Lastly, it is argued on behalf of the defendant No. 1 / appellant that out of the two Advocates appointed as receiver by the trial court, one of the Advocate was counsel of the plaintiff, and both were under the influence of the plaintiff. It is further contended that Shri R.R. Agarwal, a retired District Judge, who was appointed receiver by this Court under interim order dated 05.06.2009, is creating too much hindrance in the spiritual and religious functioning of the Mahant Mohan Das defendant No. 1 / appellant. However, when I asked learned Counsel for the parties to suggest any name which is acceptable to both the sides, they failed to agree on any particular name. In the circumstances, at this stage, this Court does not find sufficient reason to replace Shri R.R. Agarwal as receiver of the property in suit. Since the property in suit appears in danger of being mismanaged and the circumstances of the case require immediate protection, this Court agrees with the trial court that it is a fit case for appointment of receiver.
17. For the reasons as discussed above, the appeal is dismissed to the extent the application (7-C) is allowed by the trial court, for appointment of receiver. However, as to the appointment of the two Advocates, namely Vijay Sharma and Ramesh Chand Nankani, the order dated 23.05.2009 is set aside, and to that extent appeal stands allowed. Shri R.R. Agarwal, who has taken over charge of receiver vide interim order dated 05.06.2009, passed by this Court, shall continue to discharge his duties as receiver, and shall comply with the order dated 23.05.2009, passed by the trial court. However, the parties shall be at liberty to move application before the trial court for replacement of said receiver, in case he commits any misconduct or both the parties agree to another name. The appeal, accordingly, stands disposed of, without prejudice to the rights to the parties to the suit, in the final adjudication of the case.