M. Katju and R.S. Tripathi, JJ.

1. This appeal has been filed against a judgment and decree dated 14.8.1997 passed by 1st Additional Civil Judge (Sr. Division), Meerut dismissing the Original Suit No. 549 of 1985 with costs.

2. The history giving rise to his first appeal is that the original Suit No. 549 of 1985 was filed by the Appellants against the Respondent. In the above suit it was pleaded that the Appellants took a commercial loan of Rs. 11.70 lacs and an additional loan of Rs. 3.50 lacs for M/s. Rasolia Cold Storage Pvt. Ltd. from Uttar Pradesh Financial Corporation in the year 1979-1980 executing agreements. The amounts of the above loans were not paid by the Appellants, and consequently a recovery certificate was sent to the District Magistrate, Defendant No. 2 by the Uttar Pradesh Financial Corporation. On the basis of the aforesaid recovery certificate Defendant No. 2, District Magistrate, Meerut appointed Defendant No. 3 Potato Development Officer as Receiver of the above Rasolia Cold Storage and possession of the same was taken over by the Receiver. The Appellants in their above suit challenged the appointment of Defendant No. 3 as Receiver and pleaded that the possession taken over by the Receiver was illegal. They alleged to have suffered loss worth rupees several lacs on account of misappropriation of the articles including machinery, potato bags, furnitures etc. of the cold storage. The further contention raised in the suit was that the Receiver did not maintain any account after taking over possession and misappropriated 37,279 bags of potato belonging to the farmers, furnitures and other articles all amounting to Rs. 17,68,450.00. Appellants filed Civil Misc. Writ Petition No. 10627 of 1984 against the Respondent before this Court challenging the appointment of the Receiver , and by virtue of an order passed in that writ petition possession of the cold storage was ordered to be restored back to the Appellants on their depositing Rs. 1.00 lac. Rs. 1.00 lac was deposited and the cold storage in question was restored back to the Plaintiffs.

3 .According to the plaint case, after taking over possession of the cold storage, the Respondent misappropriated many articles and did not give any proper list of articles while handing over its possession back to the Appellants. As per the plaint case, the Respondent in collusion with each other managed to sell the property of the cold storage worth Rs. 1.00 crore for an amount of Rs. 17.00 lacs only to the Defendant Nos. 5 to 7. They claimed the relief of setting aside the above sale and claimed adjustment of the loss suffered by them on account of appointment of the Receiver. The following reliefs were prayed for by Appellants:

(i) That an amount of Rs. 17,68,450.00 suffered by way of loss by them be declared to be adjustable against their loans dated 23.12.1990 and 30.3.1979.

(ii) That the Defendant-Respondent be restrained from realising the amount of loan by way of arrears of land revenue or through any process by adopting coercive measures or by auction of the pledged property till the amount of Rs. 17,68,450.00 is adjusted or any other amount found to be paid by the Plaintiffs to the Defendants stands adjusted.

(iii) That the order passed by Defendant No. 2 confirming the sale and the other proceedings relating to that, passed in favour of Defendant Nos. 5 to 7 pertaining to Rasolia Cold Storage be set aside and declared void.

4. Before the lower court all the Defendants filed their written statements and contested the suit.

5. In a joint written statement filed by Respondent Nos. 1, 2, 3 and 4 it was pleaded that on the receipt of the recovery certificate for Rs. 23,10,416.00 which was found to be due against the Appellant, the proceedings for recovery under the U.P.Z.A. and L.R. Act were taken, and therefore, the suit filed by the Appellant was barred by Sections 287A and 331 of the U.P.Z.A. and L.R. Act. In their written statement the question of jurisdiction of the civil court to try the suit was also raised by them. They denied to have misappropriated any article of the cold storage in question and pleaded that the Appellants have not suffered any loss. They contended that the Receiver had found the record of the cold storage incomplete at the time of taking over the possession of the cold storage and the entries of the records were found to be fake and manipulated. They challenged the claim of adjustment of more than Rs. 17.00 lacs denying their liability for any loss.

6. The Defendant No. 2 contested the suit and filed a separate written statement wherein it was pleaded that the proceedings under the provisions of U.P.Z.A. and L.R. Act were initiated in accordance with law, and, therefore, the suit was not maintainable. They challenged the rights of the Appellants to get the adjustment of the amount of Rs. 17,68,450.91.

7. Defendant Nos. 5, 6 and 7 contested the suit filing their written statement separately. In their written statement, they pleaded that an auction was proposed to be held by opening tenders and the Appellants have no right to challenge the highest tender accepted for the auction. The question of maintainability of the suit was also raised by them.

8. On the basis of the pleadings of the parties the lower court framed in all 12 issues for the decision of the suit, and after considering the evidence both oral and documentary led by the parties the trial court passed the impugned judgment and decree. Feeling aggrieved against this judgment and decree this appeal has been filed. We have heard the learned Counsel for both parties at length and have given our careful consideration to the materials available on the record. In the instant appeal the following points arise for decision:

(i) Whether the appointment of Defendant No. 3 as Receiver by Defendant No. 2 was illegal If so, its effect

(ii) Whether the Receiver after his appointment caused loss/ damage to the cold storage to the extent of Rs. 17,68,450 as pleaded in the plaint

(iii) Whether the Plaintiff is entitled to adjustment of Rs. 17,68,450 or any amount towards loss

(iv) Whether the auction of the cold storage is illegal and collusive and is for inadequate amount If so, its effect

(v) Whether the civil court has jurisdiction to grant the relief claimed

9. We have heard the learned Counsel for both the parties at length and have also gone through the record.

10. On the first point it is argued from the side of the Appellants that the trial court did not finally adjudicate the issue framed on this point and has observed only this much that the controversy relating to this point was involved in C.M.W.P. No. 10627 of 1984 before the High Court, and therefore, when that writ petition was pending this issue cannot be decided by it. The contention from the side of the Appellants before this Court is that the above Writ Petition No. 10627 of 1984 had been disposed of by this Court as early as on 11.2.1986 whereas the trial court decided the suit on 14.8.1997, and therefore, the above observations of the trial court are factually incorrect. His argument is that in absence of any finding recorded by the trial court on the above issue the case of the Appellants has been prejudiced. When we go through the record we find that there is absolutely not an iota of evidence (oral or documentary) to show that the above writ petition had been disposed of on 11.2.1986. Even in the oral evidence led by the Appellants before the trial court not a single word has come for the disposal of the above writ petition. Learned Counsel for the Appellants has pointed out that an affidavit enclosing a copy of the order of this Court passed in above writ petition was brought on the record before the lower court, therefore, the trial court has committed error in not considering this affidavit on above issue. It cannot be disputed that the provisions of Code of Civil Procedure as they stood on the date of decision of above suit provided for adducing oral and documentary evidence for the decision of a suit. In any suit the documents which are not certified copies or are not proved by leading cogent oral evidence cannot be read in evidence. Also when oral evidence was led by both the parties evidence in the form of affidavit could not be led. Therefore, in absence of any provision to permit the Appellants to lead evidence in the form of affidavit and in absence of any certified copy of judgment of petition the above argument advanced from the side of the Appellants cannot be taken to be helpful to draw an inference that the trial court has committed an error in deciding the above issue No. 1. In view of all the above facts and circumstances, the trial court cannot be blamed for not deciding this point. Moreover, when we consider the contention raised from the side of the Appellant we find that there is no denial of the fact that the above writ petition was dismissed by this Court recording the statement of the counsel for the Petitioner that the petition has become infructuous. Thus, there was no decision by this Court in the above writ petition on merits on above point. As such the above decision of the writ petition is therefore, of no help in coming to any conclusion on this point.

11. Now we proceed to examine whether the appointment of Defendant No. 3 as Receiver by Defendant No. 2 is illegal. Admittedly a recovery certificate of Rs. 23,10,416.91 was issued by the Uttar Pradesh Financial Corporation against the Appellants and after the receipt of this recovery certificate under the provisions of Sections 279(i)(g) and 286A of the U.P.Z.A. and L.R. Act the District Magistrate appointed Defendant No. 3 as Receiver for the cold storage in question. Learned Counsel for the Appellants has relied on the decision in M/s. R. B. Lachhmandas Sugar and General Mills (P.) Ltd. and Anr. v. State of Uttar Pradesh and Ors. : 1977 AWC 115 (FB) and Diamond Sugar Mills Ltd. and Anr. v. State of U.P. and Ors. 1972 ALJ 861. A perusal of the decision in M/s. R.B. Lachhmandas Sugar and General Mills (P.) Ltd. (supra) shows that in that case this Court took the view that "A Collector exercising powers under Section 286A of U.P.Z.A. and L.R. Act has to objectively consider whether it is just and proper to appoint a Receiver after giving opportunity of hearing to the defaulter but he is not bound to exhaust the modes of realization contained in Clauses (a) to (f) of Section 279 of the said Act before appointing a Receiver under Section 286A of the." From this Full Bench decision it is clear that the Collector has been empowered to appoint a Receiver under Section 286A of the aforesaid Act but the only requirement is that he has to give a notice to the defaulter before such appointment of Receiver and has to consider objectively such appointment. In the instant case, on the record there is not a single word in the oral evidence adduced from the side of the Appellants before the trial Judge that no such show cause notice was ever issued by the Collector to the Appellants before the appointment of the Receiver . When the recovery was for an amount of more than Rs. 23.00 lacs payable to the Uttar Pradesh Financial Corporation and as per above Full Bench decision the Collector has power to appoint a Receiver without exhausting other modes of recovery. In absence of any cogent and reliable evidence from the side of the Appellant that no notice was given to the Appellants before appointing the Receiver or that the Collector did not consider the matter objectively in doing so in our view the Collector cannot be said to have exercised his power illegally in appointing the Receiver for the cold storage. The other ruling cited from the side of the Appellants Diamond Sugar Mills Ltd. and Anr. (supra) is a case in which on the basis of a report of the D.G.C. (Civil) the Receiver was appointed for running the business of the Petitioner ex parte without any notice. In that case this Court took the view that "the reasoning given in Smt. Vimla Ranis case Civil Misc. Writ Petition No. 3264 of 1971, decided on 18.5.2004 is suggestive that the Receiver should, normally be appointed only in case the other processes are insufficient for the recovery of the arrears." Therefore, in the circumstances of this case this ruling is not applicable. In the instant case, there is also no evidence to suggest that there was any mala fide intention on the part of the Collector in appointing the Receiver. The Appellants had taken loans and failed to pay the same as per terms of the agreement. Only thereafter was the recovery certificate issued.

12. Considering all above facts we are of the view that the appointment of the Receiver by the Collector cannot be held to be illegal or mala fide.

13. Now coming to point Nos. 2 and 3 when we go through the record we find that the Appellants have claimed damages for the loss of the articles of the cold storage including several bags of potato. In the plaint before the trial court in Schedules A and B a list of the properties which were shown to have been misappropriated are given. In Schedule A loss on account of various items have been valued to the tune of Rs. 2,96,400.00 whereas loss in the Schedule B is shown as Rs. 14,72,000.00 which included the misappropriation of potato bags stored in the cold storage. The Respondent denied that they committed any misappropriation. The burden lies upon the Appellants to prove that the articles of Schedules A and B were misappropriated by the Respondent. To discharge this burden the Appellants have not adduced any reliable oral or documentary evidence to prove that when the Receiver took over the possession of the cold storage the above articles were available in the cold storage. While discussing the evidence led by the parties, on this point the trial court has observed that in the evidence adduced before it, it has come that due to non-availability of sufficient number of staff the verification of the number of potato bags could not be done on 11.8.1984 and the cold storage was sealed in the morning hours with a view to get its physical verification completed later on. The trial court has also noted that the evidence was available to the effect that on the request of the Receiver approval was made by District Magistrate by issuing notice to the owners of the cold storage to remain present till the panel physically verified the bags containing the potatoes. This direction was issued and the verification of the store by the panel was done who found only 22,882 bags of potato whereas 8,347 bags had been found to have been taken out from the store by that time. Against this in the record of the Appellants 43,331 bags were shown in the store and 6,052 bags were shown to have been taken out. The trial court has noted on the basis of evidence led by the parties that on the point of entries about the exact stock position till 22.2.1984, 11,300 bags had been shown in the stock register and thereafter before handing over the register to the Receiver fake entries in that register without mentioning any rack numbers where the bags were kept were made by the Appellants although the Respondent had been able to get photocopies of that store register prepared immediately after taking over the possession of the cold storage. The trial court has also observed that these photocopies of the said register do go to show that there was no mention of the rack numbers against the entries but subsequently with a view to justify these entries these rack numbers were entered in the register to show complete entries of the register. These cogent factual materials undoubtedly go to show that the Appellants not only failed to establish the exact stock position of the cold storage but they manipulated entries in the register later on. Apart from this, on the rest of the page numbers of the register of the stock, cutting and re-writing had also been found by the trial court and all these created doubt about the maintenance of the register in the normal course of the business. On the record there is sufficient evidence to show that there was discrepancy in the number of bags shown in the bills of the cold storage for the period 25.2.1984 to 6.8.1984 and the letter dated 15.4.1984 sent to the Collector also failed to explain about the above material discrepancies. Thus, from the above discussion, we are of the opinion that the misappropriation as pleaded by the Appellants has rightly been not accepted by lower court.

14. In the judgment of the trial court it is stated that the evidence shows that the panel deputed for the physical verification found only 22.8.1982 bags out of which 6,052 bags had already been taken out. There is a proper discussion of the evidence by the trial court on this points. The lower court has also observed that the Appellants were informed in writing to be present at the time of physical verification of the articles of the cold storage but they deliberately absented and did not participate in the physical verification. As regards the other articles of the cold storage, the Respondent got noted the articles when the possession of the cold storage was returned back to the Appellants. At that time also no such discrepancy was pointed out by the Appellants. In view of these materials there is absolutely no evidence to accept the case set up by the Appellants about the misappropriation of the articles as pleaded by them. Accordingly, we hold that the trial court has rightly considered the evidence led by parties on this point.

15. Apart from the above discussion there is no denial of the fact that the dues for which the recovery certificate was issued were in respect of the loan taken by the Appellants from Uttar Pradesh Financial Corporation. In this connection it is worth noting that there is no evidence worth the name to show that the Respondent Nos. 2 and 4 have concern with Uttar Pradesh Financial Corporation. Therefore, the reliefs claimed by the Appellants for adjustment of any loss alleged to have been caused by above Respondent Nos. 2 to 4, cannot be granted in connection with the loan advanced by the Uttar Pradesh Financial Corporation.

16. In the light of aforesaid discussion the question of adjustability of the sum of Rs. 17,68,450.00 by way of loss, if any, towards the loan in question has rightly been decided by the lower court against Appellants. Accordingly, we decide points 2 and 3 against the Appellants.

17. Now coming to point No. 4 we find that in the instant case the contention of the Appellants is that the circle rate of the land of the cold storage in question is Rs. 1,500.00 per sq. yard, and therefore, the price of the land of the cold storage comes to Rs. 55-56 lacs. According to the Appellants there were machineries etc. worth Rs. 50.00 lacs in the cold storage. The Respondent in collusion with each other managed to sell the said cold storage for a sum of Rs. 17 lacs only in favour of Respondent Nos. 5 to 7. In this connection the counsel for the Appellants has drawn the attention of this Court towards copy of the judgment in Civil Revision No. 867 of 1990 connected with Civil Revision No. 1079 of 1990, M/s. Noor Jahan Cold Storage v. State of U.P. through Collector, Meerut and Ors. decided on 18.4.1991, wherein the learned single Judge of this Court observed that "the fact that according to the memo circle rate fixed by the A.D.M. (Finance), Meerut, the value of the cold storage is not less 55.00 lacs and the agreement has been executed at Rs. 17 lacs. There is no explanation prima facie for selling the property at such low price. Hence without making any observations on merits it cannot be said that the Plaintiff has no case when he has alleged that the Uttar Pradesh Financial Corporation has acted arbitrarily and may be fraudulently in disposing of the property to M/s. Noor Jahan Cold Storage for such a paltry sum when the value of the land besides structure, machinery etc. would also not be less than Rs. 50 lacs or so."

18. The learned single Judge by making these observations (emphasis on the underlined portion) has not finally expressed his opinion about the value of the property of the cold storage. However, when we consider the various pronouncements of the Supreme Court we find that circle rate can never be taken to be the proper rate to assess the actual market value of the landed property. Circle rate is meant only for registration of the sale deeds for imposing stamp duty by the Revenue Authorities. In this connection reliance can be placed on the Jawajee Nagnatham v. Revenue Divisional Officer, Adolanad, A.P., etc. : JT 1994 (2) SC 604 [LQ/SC/1994/121] and Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun through its Secretary v. Bipin Kumar and Anr. : (2004) 2 SCC 283 [LQ/SC/2004/34] . In the light of these discussions when we go through the evidence led by the parties before the lower court we find that there is absolutely no reliable evidence from the side of the Appellants to show that the market value of the cold storage in question was worth Rs. 1.00 crore including the price of land, machinery, etc. Therefore, the observations made by the learned single Judge in the aforesaid revision do not help the Appellants. The learned trial Judge has rightly observed that the circle rate is only meant for the realization of the stamp duty for the purposes of registration and it has nothing to do with the actual market value of the property. The trial court has also observed that the Appellants failed to adduce any evidence to prove that the market value of the land of the cold storage was Rs. 1,500.00 per sq. yard on the date of its sale. There is nothing on the record to disagree with the trial court on this point. It has also come in the judgment of the court below that the Appellants themselves valued the land of the cold storage in question in 1978 to the tune of Rs. 16,250.00 only and in a letter written to the District Magistrate, Meerut, the price of the land in question was mentioned as Rs. 200.00 per sq. yard. On the other hand the Respondent led their evidence in the form of sale deed dated 6.4.1987 of the village Jahidpur to show that the land in that village in the year 1987 was sold at the rate of Rs. 66.00 per sq. yard or Rs. 300.00 per sq. yard. Apart from the above material the trial court has observed that in the evidence led by the parties before it the Appellants themselves valued their entire project including building, machinery etc. of the cold storage to the tune of Rs. 18,50,000.00. Therefore, if the value of the building and machinery etc. has fetched Rs. 17 lacs, in its sale to Defendant Nos. 5 to 7 this value cannot be taken to be inadequate on account of any collusion amongst the Respondent. The result of this discussion is that this point No. 4 has to be decided against the Appellants. Accordingly, this point is decided.

19. The last point which requires decision is whether the civil court has jurisdiction to grant the relief claimed by the Appellants. In this connection when we go through the provisions of the Code of Civil Procedure, we find that in the State of U.P. in Rule 2(2) of Order XXXIX the following provision has been added by U.P. Act No. 57 of 1976 provided that no such injunction shall be granted ....(g) to stay the proceedings for the recovery of any dues recoverable as land revenue unless adequate security is furnished.

20. In the instant case, there is absolutely no material to show that any security was furnished by the Appellants in connection with the recovery certificate which was issued by the Uttar Pradesh Financial Corporation against them. The non-compliance of above provision coupled with the fact that the adjustment of Rs. 17,68,450.00 claimed by the Appellants is without any payment of any court fee, in the suit for the relief leave no doubt that the civil court has no jurisdiction unless there is compliance of the provisions of the Code of Civil Procedure. The relief of permanent injunction has been sought without complying with the provision. In view of this we are of the view that the civil court has no jurisdiction to grant such relief. The result of the above discussion is that this appeal has no force. Accordingly, it is dismissed.