Gawarammana v Tea Research Board and others
MARTINCOURT OF APPEALAMARATUNGA, J.
CALA NO. 165/2002D.C. GALLE 14512/PJULY 4, 2003
Civil Procedure Code – Section 671 – Appointment of a Receiver – The cir-cumstances to be considered?
The plaintiff-petitioner instituted action to partition a particular land. The plain-tiff-petitioner claimed that, there was a dispute between him and the 7th defen-dant-respondent with regard to the taking of the coconut yield and sought theappointment of a receiver for the purpose of collecting the coconut produceand crediting the income received therefrom to the credit of the case. TheDistrict Court refused the application.
The main object of appointing a receiver is the preservation and bettermanagement of the properly.
Plaintiff is not entitled to have a receiver appointed to protect his pecu-niary interest.
Order for appointment of a receiver cannot be made upon a consider-ation of the merits of the substantive claim – that in effect is an appli-cation to prejudge the case.
Sri Lanka Law Reports
 3 Sri L.R
APPLICATION for leave to Appeal from the Order of the District Court of Galle.Cases referred .to:
Rabbia Umma v Noordeen – 41 NLR 102
Corea vAmarasekera -1913 Vol. II Balasingham’s Notes of cases, page 1.
Corbet v The Ceylon Company Ltd., – 1981 SCC Vol. IV, 143
Ghazali Hussain with Y.N.P. de Silva for plaintiff-petitioner.
Mahesh Katulanda with Rajendra Seneviratne for 7th defendant-respondent.
Cur adv vult
October 14, 2003
GAMINI AMARATUNGA, J.. This is an application for leave to appeal against the decision 01of the learned Additional District Judge of Galle refusing to appointa receiver for the land sought to be partitioned in this action. Theplaintiff filed this action to partition the land calledGorakagahaliyadda 2R 33P in extent. According to the plaint, theplaintiff and the 1st to 6th defendants were the persons entitled toshares of this land as co-owners. According to the plaint, the 7thdefendant- respondent was a person placed in the property as awatcher by a predecessor in title of the plaintiff. The plaintiffalleged that from about February, 2001, the 7th defendant forcibly 10and unlawfully commenced to construct a permanent building in theproperty. By the plaint the plaintiff prayed for an interim injunctionpreventing the 7th defendant-respondent from constructing a build-ing in the land. The Court in the first instance issued notice ofinjunction only but later issued an enjoining order restraining the7th defendant from constructing a building in the said land and cut-ting the coconut trees. Later, the plaintiff-petitioner filed an applica-tion seeking to have a receiver appointed for the corpus. The plain-tiff claimed that there was a dispute between him and the 7th defen-dant-respondent with regard to the taking of the coconut yield of the 20.land and the appointment of a receiver was for the purpose of col-jlecting the coconut produce and crediting the income receivedtherefrom to the credit of the case.
Towfeek v Martin (Gamini Amaratunga, J.)
Both parties agreed to the Court making an order with regardto the interim injunction and the appointment of a receiver after aninspection of the land by the Judge. After an inspection the learnedJudge made order restraining the 7th defendant-respondent fromfurther constructing the building. However the application for theappointment of a receiver was refused by the Judge. The plaintiffnow seeks leave to appeal.
In terms of section 671 of the Civil Procedure Code, whenev-er it appears to the Court to be necessary for the restoration,preservation or better custody or management of any property sub-ject to an action or under sequestration, the Court may upon theapplication of any party who shall establish a prima facie right to orinterest in such property, appoint a receiver of such property,remove any person in possession of such property and commitsuch property to the custody of the receiver. The main object ofappointing a receiver is the preservation and better management ofthe property. In this case the plaintiff claimed that the 7th defendantdid not have any right to the property. On the other hand the 7thdefendant has stated that his predecessors in title came to occupythe land without any leave or license from any person and all plan-tations and improvements were made by them. When the Surveyorcarried out the preliminary survey the 7th defendant has claimed allplantations.
The plaintiff sought to have a receiver appointed as there wasdispute between him and the 7.th defendant with regard to the tak-ing of coconut produce of the land. This simply is for the protectionof the pecuniary interests of the plaintiff till the action is over.Theprinciple laid down in Rabbia Umma v Noordeen(1) referred to bythe learned Judge in his order was that a plaintiff was not entitledto have a receiver appointed to protect his pecuniary interests. Theprinciple laid down in the early case of Corea v AmarasekaraWwas that an order for appointment of a receiver shall not be madeupon a consideration of the merits of the substantive claim. InCorea’s case the Court has cited with approval the earlier case ofCorbet v The Ceylon Company LtdS3) where it has been statedwhere the plaintiff has asked for the appointment of a receiver onthe merits of the case, it in effect is an application to prejudge thecase.
Sri Lanka Law Reports
 3 Sri L.R
In this case the appointment of a receiver has been sought onthe basis that the plaintiff was a lawful owner of the property andthe 7th defendant was a trespasser who has no iawful right to theproperty and therefore a Grama Seva Niladhari should be appoint-ed to collect the income of the property and credit it to the case. Onthe other hand the 7th defendant is in possession of the propertyand has claimed it and the plantations on his own right. The plain-tiff has not shown that the appointment of a receiver was necessaryfor the preservation or the better management of the property. In 70those circumstances the appointment has been sought merely forthe protection of the pecuniary interest of the plaintiff and that suchappointment would become an act of pre judging the merits of theplaintiff’s claim. The learned Judge has exercised his discretion oncorrect legal principles and this is not a fit case to grant leave toappeal. Accordingly leave to appeal is refused and the applicationis dismissed with costs in a sum of Rs. 5000/-
TOWFEEK v. MARTIN