HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU CM(M) No. 248/2024 CM No. 6614/2024 Ganesh Kumar age 45 years S/o Late Sh. Bhawani Dass, R/o Village Keriyan, A/p Vasik Dhera, Nagar, Bhadarwah. …..Appellants Through: Mr. Ankush Manhas, Advocate Vs 1. Sher Singh S/o Mansa Ram, 2. Arti Devi, W/o Sher Singh Both residents of Village Gutassa, A/p Village Keriyan Tehsil Bhalla District Doda. .…. Respondents Through: CORAM: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER 11.08.2025 1. The petitioner/plaintiff has filed the present petition under Article 227 of the Constitution laying a challenge to order dated 02.12.2023 passed by learned District Judge, Bhaderwah (hereinafter referred to as “trial Court”) in a suit titled Ganesh Kumar Vs. Sher Singh and ors, whereby application of petitioner/plaintiff under Order 40 Rule 1 CPC for appointment of receiver in respect of vehicle bearing registration No. JK06A- 7508 has been dismissed 2. Heard and considered. 3. It appears that the petitioner/plaintiff has filed a suit before the trial Court seeking ejectment of respondents from a shop and Atta Chaki Mill situated at Khasra No. 91 min at village Keriyan Tehsil Bhalla as also for recovery for arrears of rent of Sr. No. 138 2 CM(M) No. 248/2024 shop and Atta Chaki Mill amounting to Rs. 10,00,000/- and also for recovery of Rs. 85,000/- on account of loan installment of vehicle bearing registration No. JK06A-7508, further prayer for recovery of rent @ Rs. 25,000/- from the date of filing of suit till the premises is handed over to the petitioner/plaintiff has also been made. The petitioner/plaintiff has also sought possession of the vehicle bearing registration No. JK06A-7508 with a further direction upon the defendant No. 1/respondent No. 1 to vacate the house inherited by the petitioner/plaintiff from his father situated at khasra No. 91-min situated at village Keriyan. Along with the suit, the petitioner/plaintiff has also filed an application under Order 40 Rule 1 CPC with a prayer for appointment of receiver in respect of vehicle bearing registration No. JK06A-7508. 4. Briefly stated, case of the petitioner/plaintiff before the trial Court was that in the year, 2016, defendant No. 1/respondent No. 1 had requested him to give Atta chakki and shop to him on rent. The request was acceded to by the petitioner/plaintiff and he leased out the atta chakki mill shop along with vehicle bearing JK02AR-9711 to defendant No. 1/respondent No. 1 and the monthly rent was fixed at Rs. 25,000/-. An agreement dated 03.09.2016 came to be executed between the petitioner/plaintiff and defendant No. 1/respondent No. 1. It is case of the petitioner/plaintiff that in pursuance of the said agreement, defendant No. 1/respondent No. 1 was allowed to 3 CM(M) No. 248/2024 run the aforesaid business along with vehicle which was used for running the business. 5. Till December, 2018, defendant No. 1/respondent No. 1 is stated to have paid the rent @ Rs. 25,000/- per month regularly but thereafter, he stopped paying rent which prompted the petitioner/plaintiff to ask defendant No. 1/respondent No. 1 to vacate the premises and return the vehicle. It is further case of the petitioner that reconciliation took place between the parties and a fresh agreement was executed on 28.03.2020 whereby defendant No. 1/respondent No. 1 agreed to pay the rent @ Rs. 25,000/- per month to the petitioner/plaintiff and it was undertaken by the defendant No. 1/respondent No. 1 that he shall pay the outstanding rent of Rs. 3,75,000/- towards the loan of new vehicle bearing registration No. JK06A-7508 which was purchased in lieu of the earlier vehicle. It was also agreed by the defendant No. 1/respondent No. 1 that he will continue to pay the rent @ Rs. 25,000/- per month in addition to payment of loan amount. However, according to the petitioner/plaintiff, defendant No. 1/respondent No. 1 only paid an amount of Rs. 90,000/- out of the loan amount relating to the vehicle and did not pay the rent w.e.f. March, 2020 as was agreed by him. Thus, the total outstanding of rent swelled up to Rs. 10,00,000/- and total outstanding amount on account of loan amount is state to be Rs. 85,000/-. 4 CM(M) No. 248/2024 6. The learned trial Court after noticing the aforesaid facts dismissed the application of the petitioner/plaintiff for appointment of receiver in respect of the vehicle in question primarily on the ground that allowing such a prayer would amount to passing a partial decree in favour of the petitioner/plaintiff. 7. The petitioner/plaintiff has challenged the impugned order on the grounds that the agreement dated 03.09.2016 and 28.03.2020 executed between the parties have not been properly appreciated by the trial Court. It has been further contended that the vehicle in question is registered in the name of the petitioner/plaintiff as such, until the suit is decided, the same is required to be released in favour of the Supardar. It has also been contended that releasing the vehicle in favour of receiver would not amount to determining the fate of subject matter of the dispute finally. It has also been contended that because petitioner/plaintiff is registered owner of the vehicle in question as such, he is entitled to possession of the same. 8. If we have a look at the suit filed by the petitioner/plaintiff before the trial Court, in the said suit, the petitioner/plaintiff has inter-alia prayed for recovery of possession of the vehicle bearing registration No. JK06A-7508 which had been given to defendant No. 1/respondent No. 1 on the basis of agreement dated 28.03.2020. In terms of agreement dated 5 CM(M) No. 248/2024 28.03.2020 which is an agreement made between the parties after agreement dated 03.09.2016, the petitioner/plaintiff has agreed to lease out the suit property including the vehicle in question to defendant No. 1/respondent No. 1 by reserving a rent of Rs. 25,000/- per month. In the suit, the petitioner/plaintiff is seeking ejectment of defendant No. 1/respondent No. 1 from whole of the suit property including the vehicle in question. 9. The observation of the trial Court that if the possession of the vehicle in question is taken away from the defendant No. 1/respondent No. 1 at the interim stage itself, it would amount to passing of partial decree against the said defendant which cannot be done at this stage. If the petitioner/plaintiff ultimately succeeds in proving his case, he would be entitled not only to the possession of the suit property including the vehicle in question but he would also be entitled to recovery of rent agreed upon between the parties. Therefore, the discretion exercised by the trial Court in declining to pass an order for appointment of receiver can neither be termed as perverse nor illegal warranting any interference from this Court. 10. Even otherwise, the instant petition under Article 227 of the Constitution against the impugned order dated 02.12.2023 passed by the trial Court in exercise of its power under Order 40 Rule 1 CPC is not maintainable because the order impugned is appealable in nature in terms of Order 43 Rule 1 (s) of CPC. 6 CM(M) No. 248/2024 11. It is trite law that where a litigant has an alternative efficacious remedy available to him, the High Court would not exercise its supervisory jurisdiction under Article 227 of the Constitution. On this ground alone, the petition is not maintainable. 12. For the foregoing reasons, I do not find any merit in this petition. The same is dismissed. (SANJAY DHAR) JUDGE JAMMU 11.08.2025 Tarun/P/S Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No Tarun Kumar Gupta 2025.08.18 22:59 I attest to the accuracy and integrity of this document