1 S.B.CIVIL MISC. APPEAL NO.2483/2007 Smt.Mahalaxmi v. Radheyshyam & Ors. Date of Judgment :: 15th February, 2008 HON'BLE MR.JUSTICE GOVIND MATHUR Mr. O.P.Mishra, for the appellant. Mr. B.S.Charan, for the respondents. .... The Additional District Judge (Fast Track), Chittorgarh, by an order dated 18.10.2007 rejected the application preferred under Order XL Rule 1 Code of Civil Procedure preferred by the appellant plaintiff, hence this misc. appeal is preferred. In brief, facts of the case are that the appellant plaintiff preferred a suit for dissolution of partnership firm and also for rendition of accounts of the firm. As per the averments contained in the plaint, the plaintiff and the defendants are partners of the firm M/s Toshniwal Udhyog, Chittorgarh. It is alleged that after death of Shri Chhogalal, one of the partner of the firm, the defendants are acting against the interest of the firm and also not disclosing the actual accounts of the firm to the plaintiff. The defendants denied partnership of the plaintiff and also all the allegations relating to ill-administration of the firm. 2 An application preferred by the appellant under Order XL Rule 1 Code of Civil Procedure for appointment of receiver came to be rejected by the order impugned by learned trial court on the grounds that :- (1) the applicant failed to produce any evidence regarding her investment with the firm M/s Toshniwal Udhyog; (2) the applicant nowhere averred as to whether she was executive/working partner or she ever participated actively in business of the firm; (3) no evidence is produced by the applicant to satisfy prima facie that in the return submitted to the Income Tax Department the partnership of the applicant was ever shown or disclosed; (4) the defendants No.2 and 3 are having exclusive possession over the property in question from last 16 years and there is no just reason to interfere with their peaceful possession at a belated stage; and (5) no adequate evidence is produced by the applicant to prima facie satisfy the 3 allegation that the defendants are acting against the interest of the firm. While assailing validity of the order impugned, contention of counsel for the appellant is that as a dissolution of partnership firm is claimed and, therefore, the court should have appointed a receiver to protect rights of the plaintiff as well as of the firm. To substantiate the contention, reliance is placed on various judgments and those are (1)AIR 1993 SC 1721 (Maharaj Jagat Singh v. Lt. Col. Sawai Bhawani Singh and others); (2)AIR 2001 SC 1361 (Kasturi Bai and others v. Anguri Chaudhary); (3)AIR 1981 Rajasthan 160 (Abani Kumar Mukherjee and others v. Nand Kishore and others); (4)AIR 1985 Jammu and Kashmir 63 (Tej Ram v. State of J. & K. and others); (5)2003(3) Civil Court Cases 688 (A.P.) (Chandana Veeranjaneyulu & Ors. Chandana Panduranganayakamma & Ors.); (6)2003(3) Civil Court Cases 172 (P&H) (Naresh Kumar v. Sarwan Kumar); (7)AIR 1982 Jammu and Kashmir 1 (Moti Lal v. Badri Nath and others); (8)AIR 1985 Jammu and Kashmir 50 (Tilak Chand Jain v. Darshan Lal Jain and another); and (9)1998(3) Civil Court Cases 286 (Kerala) (Kuttappan v. Sarojini Bhaskaran). The considerations for appointment of receiver as per Order XL Rule 1 Code of Civil Procedure are well settled. It is a discretion vested with the Court, which must be exercised judiciously. 4 The person seeking appointment of receiver must have an interest in the property to be effected. The appointment of receiver must be for protecting rights of all the parties and the subject matter. The applicant must show some emergency or danger or loss demanding immediate action including appointment of receiver. The jurisdiction of equity to appoint a receiver may be invoked in order to effectuate the relief sought in the proceedings, where needed to preserve the assets from de-utilisation, de- composition or destruction. A receiver can be appointed to take charge of partnership assets, collect the same and convert it into cash, if necessary, and to discharge debt of the firm and thereafter divide the surplus between the partners on being prima facie satisfied that interest of the firm is in danger. The court is not required to appoint a receiver as a matter of course where a case for dissolution is made. The court have to examine breach of the duty by the partner/partners and destroy of mutual confidence between the partners. In the instant matter, the trial court has taken into consideration the entire material available on record and on being satisfied that no adequate material was available on record even to establish partnership of the plaintiff, rejected the application under Order XL Rule 1 Code of Civil Procedure. On examination of the record I found myself in agreement 5 with the reasons given by the trial court and there are no compelling circumstances those may warrant appointment of receiver relating to the property and activities of the partnership firm. The appeal, thus, is having no merit and is accordingly dismissed. ( GOVIND MATHUR ),J. Kkm/ps.