!! 1 !! IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : J U D G E M E N T : D.B. CIVIL SPECIAL APPEAL NO.41/1999 (Rajan Verma Vs. Receiver, Tehsildar Revenue, Sriganganagar & Anr.) Date of Order :: 23.02.2010. HON'BLE MR. JUSTICE A.M. KAPADIA HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr.B.L. Choudhary, for the appellant. Mr.Ashwini Kumar Babel, for the respondents. Heard learned counsel for the appellant as well as learned counsel for the respondents, so also, perused the judgment rendered by the learned Single Judge in S.B. Civil Misc. Appeal No.56/1984 dated 27th August, 1999 whereby, the learned Single Judge upheld the judgment rendered by the learned Additional Sessions Judge, Sriganganagar in Civil Misc. Case No.4/1982. After perusing both the judgments, it emerges that one Dwarka Nath had applied for being declared insolvent under Section 28(2) of the Provincial Insolvency Act (hereinafter to be referred as “the Insolvency Act”) on 05th July, 1971. The learned District Judge declared him insolvent on 17th August, 1972 and also appointed Tehsildar, Sriganganagar as receiver of !! 2 !! the insolvent property under Section 56 of the Insolvency Act. The receiver took possession of the property of the insolvent including two shops No.48 and 49 Ravindra Path, Sriganganagar which were alloted by Municipal Council, Sriganganagar to the insolvent. On 03rd March, 1980 the receiver auctioned the rights of occupancy of the disputed shops and rented out the shops and possession was handed over to the tenants. On 13th September, 1982 Dwarka Nath was discharged from insolvency and the receiver was directed to vacate the shops and hand over the possession thereof to the discharged insolvent Dwarka Nath. The tenant filed objections on the ground that he was inducted in the shop as a tenant and as the disputed shops were situated in Sriganganagar where Rajasthan Premises (Control of Rent and Eviction) Act, 1050 was in force and, therefore, he could not be evicted without having recourse to the provisions of that Act. Therefore, only symbolic possession of the shop could be given to Dwarka Nath and physical possession could not have been directed to be given. The learned Single Judge has held that if any one is inducted in the property by the receiver as tenant, it is not for an Insolvency Court to put back the discharged insolvent in possession of the property !! 3 !! lawfully leased out by the receiver even for a limited period. Further, it is held that question as to whether Rajasthan Premises Act applies to the property or not can be raised and decided only in a suit for possession brought by the discharged insolvent against the tenant. In our opinion, both the courts below gave its concurrent finding that Insolvency Court cannot put back the discharged insolvent in possession of the property, which is lawfully leased out by the receiver and possession of the property can be taken by way of filing suit for possession by the discharged insolvent against the tenant. The above finding is perfectly just and proper, in which, no interference is required. However, learned counsel for the appellant submits that appellant may be permitted to file suit in terms of the judgment rendered by the learned Single Judge for the purpose of taking possession back of the property in question because his insolvency was discharged vide order dated 13th September, 1982. Upon this prayer, we are of the opinion that such prayer made by learned counsel for the appellant requires consideration. Therefore, the appellant is hereby granted liberty to file suit for taking possession back of the property in question in terms of the !! 4 !! judgment rendered by the learned Single Judge if law permits. Upon filing such suit, it is expected from the concern trial court that suit will be decided expeditiously in accordance with law. With the above observation, this special appeal is dismissed. (GOPAL KRISHAN VYAS), J. (A.M. KAPADIA), J. A.K. Chouhan/- A.K. Chouhan/-