' Mehr Muhammad Yousaf, the learned Additional District Judge, Mianwali has dismissed the appeal in limine vide order dated 30-1-2004, which order has been assailed through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground that the same Judicial Officer had dealt with the matter and passed effective orders as a trial Court when he was Civil Judge. It is contended by the learned counsel that he could not have heard the matter and the order passed by him is without lawful authority. The learned counsel for the respondents on the other hand contends that since such an objection was not taken before the learned Additional District Judge, the order cannot be assailed on that ground.
2. The respective contentions of the learned counsel have been considered.
3. Proceedings in the matter emanated from a civil suit in which a decree was passed by Mehr Muhammad Yousaf, the then Senior CivilJudge, Mianwali on 18-6-2001. The petitioners filed an application under section 12(2) of the Code of Civil Procedure, 1908 qua the same, which was again dealt with and was disposed of by the same learned Presiding Officer namely Mehr Muhammad Yousaf, Senior Civil Judge, Mianwali on 5-9-2001. A fresh application under section 12(2) of the Code of Civil Procedure, 1908 was filed by the petitioner for setting aside the decree dated 18-6- 2001 (passed by Mehr Muhammad Yousaf and the then Civil Judge), which application was rejected on 11-12-2003 by Mr. Taimur Hayat Gondal, Senior Civil Judge, Mianwali in view of the withdrawal and dismissal of the earlier application of the petitioners under section 12(2) of the Code of Civil Procedure, 1908. This was the order appealed against by the petitioners, which appeal was heard and dismissed in limine by Mehr Muhammad Yousaf as Appellate Court who had by then been promoted and was Additional District Judge, Mianwali. The said order has been passed by making explicit reference to decree dated 18-6-2001, which had been passed by himself in the suit and the dismissal of the application under section 12(2) of the Code of Civil Procedure, 1908 again by himself vide order dated 5-9-2001. In such context the question arises as to whether he should have heard or disposed of the appeal, which related to the effective orders passed by him as a lower Court. Suffice it to observe that when a lis is taken from the lower Court to the higher forum it deserves to be heard and dealt with by a Judicial Officer having no nexus and who is capable of applying independent mind and who had not dealt with the matter in the lower forum.
Otherwise it can legitimately be complained by the party and construed that the same Officer has acted as lower as well as the appellate forum and his cause had suffered from a prejudice and bias.
4. Needless to state that principles of natural justice which are regarded as fundamental basis for administration of justice cannot be disregarded or overlooked. There is one such principle often quoted and applied that no man is Judge in his own cause "nemo judgex in re sua". The retionale behind and idea underlying is that a Judge is disqualified from determining any case in which he may be or may fairly be suspected to be biased. There is equally a well-known saying that "justice should not only be-done, but should manifestly and undoubtedly be seen to be done". By dealing and deciding a case an Officer in the Court of first instance and then hearing and deciding it as appellate/revisional Court, such well-entrenched principle's, are disregarded, which vitiate the proceedings and consequently order is null and void. The principle is so fundamentally well- defined and universally accepted as a bAic concept of law and natural justice, that no one can think of violating the same. It indeed disqualifies the Judge to hear and decide such a matter. It is only when such concepts of administration ofjustice are kept in view, that fair and even handed justice can be expected from the Court.
5. In the instant case the learned Additional District Judge should not have heard and dealt with the appeal but by doing so he acted in violation of the law and principles of natural justice and, rendered his order as of no legal effect.
6. Insofar as the contention of the learned counsel for the respondents that no such objection was raised before the learned Additional District Judge is concerned, needless to observe that such lack of jurisdiction vitiates the proceedings and the consequential order as nullity. Even the consent of a party and non-objection before the forum cannot be construed to have conferred jurisdiction.
In Hai Abdul Sattar v. Additional District Judge, Rawalpindi and others (1984 SCMR 925), relying upon an earlier decision of the Supreme Court in (PLD 1971 SC 197), it was held that there was no absolute rule that objection to jurisdiction if had not been taken before the. Lower forum could in no case be taken before the High Court in writ jurisdiction. The objection of the learned counsel for the respondent is thus untenable and is repelled.
' In view of the above, the order impugned is not sustainable and is declared so. The petition is accordingly accepted, as a consequence whereof the appeal filed by petitioners would be deemed pending, which will now be heard and decided in accordance with law by the learned District Judge, Mianwali. The parties to cause their representation before him on 21-6-2004. No order as to costs.
Order accordingly.
2004 MLD 1624 [Azad J&K] Be ore Sardar Muhammad Nawaz Khan, J MUHAMMAD HUSSAIN and 2 others---Petitioners versus MUHAMMAD ASGHAR and 2 others---Respondents Civil Revision No.84 of 2003, decided on 24th April, 2004.
1625
(a) Civil Procedure Code (V of 1908)--- ----0.XL, R.1---Appointment of receiver---Object and purpose of-- Powers of Court to appoint receiver---Scope---Object and purpose of appointment of a receiver was preservation of the subject-matter of litigation pending adjudication of the rights of the parties thereto---Provisions of O.XL, R.1, C.P.C. Were to safeguard the interest of all parties as well as property which was the subject of litigation---Petitioner seeking appointment of receiver was under legal obligation to make out a prima facie case in that respect so as to persuade the Court to reach such conclusion- --One who had sought appointment of receiver, was required to satisfy the Court that the protection and preservation of subject-matter was necessary because of expected waste or peril to such property---Appointment of receiver by dispossessing a party, was a very harsh action which should not be resorted to lightly unless a strong case of damage or waste to the property was made out---Receiver was a representative of the Court and not of any of the parties to the litigation---Appointment of receiver was always made to protect property for equal benefit of those who were interested in its distribution and to keep the property within the control of the Court---Said power available to a Court was to be exercised only when petitioner would establish a special equity in his favour, but where the title of a party in possession was established, then certainly petition for appointment of receiver would not lie---Appointment of receiver was made in exceptional circumstances where the interest of the party seeking appointment of a receiver was exposed to manifest peril---Party seeking such appointment had to show emergency or danger or loss to the property demanding immediate action---Element of danger was the important consideration and the Court could not act on mere possibility of danger to property---Bona fide possession of a person of property, should not be disturbed unless there was an allegation of waste, mismanagement of the property or apprehension of irreparable loss and injury---Such power was sparingly used by the Court and if the interest of any party could be protected by another means, the Court should abstain from appointing a receiver under O.XL, R.1, C.P.C.- -- Where petitioner failed to establish specific instances of alleged waste, mismanagement and misappropriation, the Court would refuse to appoint receiver. [p. 1629] A & C 1992 CLC 2460; PLD 1977 Kar.280; PLD 1980 Kar.1093; 1994 CLC 247 and 1993 CLC 605 ref.
(b) Specific Relief Act (I of 1877)--- ----S.9---Suit for possession---Person who was found to be in possession of a property in his own right and title, should not be lightly dispossessed unless some peculiar circumstances or instance of waste and damage to property was shown. [p. 1629] B
(c) Civil Procedure Code (V of 1908)- ----0.XL, R.1---Appointment of receiver---Trial Court did not appoint receiver himself, but directed Tehsildar to appoint receiver of the property, which was quite illegal---While appointing receiver under 0..XL, R.1, C.P.C., Trial Court was under legal obligation to appoint a receiver himself by conferring upon him all such powers as to bringing and defending suits and for realization, management, protection, preservation and improvement of property alongwith collection of rents and profit thereof or any other power as the Court would think fit---All said legal requirements having been violated in the case, impugned order was not maintainable. [p. 1630] D Sardar Muhammad Anwar Khan for Petitioners.Sardar Abdul Qayyum Khan for Respondents.
' Through this revision the order of Civil Judge Hajira dated 14-11-2003 is under challenge.
2. The relevant facts necessary for resolution of controversybetween the parties are that Muhammad Asghar and others (respondents herein) brought a suit for perpetual injunction in the Court of Civil Judge Hajira against Muhammad Hussain and others (petitioners herein) regarding Survey No.258 measuring 14 Kanals, 4 Marlas and Survey No.259 measuring 3 Kanals, 3 Marlas situated in village Dhar Tehsil Hajira. Alongwith the suit and application for maintenance of status quo was also moved before the trial Court. The learned trial Judge issued order of status quo subject to objections by the other party however, during pendency of this application, another application for violation of order of stauts quo was moved before the trial Court. The learned trial Court summoned petitioners Muhammad Hussain and others after entertaining the application for violation of order of status quo. They appeared in the Court on 24-11-2003 and requested adjournment for filing their objections to this application. However, the trial Court directed Assistant Collector (Tehsildar) one of the defendants to appoint receiver of the suit-land at the verbal request of the learned counsel for the plaintiffs/respondents. Hence this revision petition.
3.. In order to resolve this controversy, it is felt expedient to have abrief background of the dispute.
Initially two suits one by Muhammad Asghar and others by Muhammad Hussain and others for adversepossession and suit for possession pertaining to a Survey No.259 measuring 3 Kanals, 3 Marlas were brought before Civil Judge Hajira on 1-8-1994 and 15-8-1994 respectively. The suits were consolidated and after due process of law both the suits were decided through a consolidated judgment. The suit for adverse possession was disallowed whereas the cross-suit for possession was decreed in favour of Muhammad Hussain and others. Muhammad Asghar and others went in appeal before District Judge with no success. A second appeal before High Court also failed and the judgment and decree of the High Court attained finality as it was not challenged before the apex Court.
4. The petitioners Muhammad Hussain and others applied for execution of the decree in their favour on 19-8-2002. The executing Court (Civil Judge Hajira) issued warrant for execution of the decree on 29-9-2002 and the same was implemented by the Revenue authorities with a report to the executing Court on 25-10-2003. The executing Court on 25-10-2003 in presence of learned counsel for the parties after recording statements of the decree-holders and examination of the report showing execution of decree consigned the execution application to record as in the opinion of learned Civil Judge (executing Court) the decree was satisfied.
5. Muhammad Asghar and others have brought present suit for perpetual injunction regarding Survey No.259 measuring 3 Kanals and 3 Marlas by joining another Survey No.258 measuring 14 Kanals and 14 Marlas asking to restrain Muhammad Hussain and others from implementation of decree already passed in their favour. They also obtained an order of status quo. Meanwhile, the decree in favour of the petitioners stood satisfied as the trial Judge in the capacity of executing Court consigned the execution application to record on 25-10-2003. The respondents Asghar and others moved and application for violation of order of status quo to which the objections were yet to come by the opposite party when the learned trial Judge on 24-11-2003 directed Tehsildar concerned to remove the petitioners (decree-holders) from possession of the Survey No.259 by appointing a receiver. Thus, the trial Judge (as a executing Court) at one hand got the decree executed through his order and at the other hand directed to remove the decree-holders (petitioners) from the possession over Survey No.259.
6. The learned counsel for the petitioners assailed the impugned order for it was not passed in accordance with law. According to him, the respondents through their present suit have attempted to frustrate the decree of the trial Court upheld by the High Court and thelearned trial Judge has also aided them by recording the impugned order.
7. While, controverting the arguments by the petitioners counsel, it was argued that the impugned order was passed under Order XL, rule 1, C.P.C. And it could be done even suo motu. The execution older was not implemented and the possession was still with the respondents therefore, the impugned order as recorded in the right direction in view of immediate apprehension of breach of peace, the learned counsel maintained. The learned counsel further argued that the impugned order was not open to revision as the same was appealable order. However, assuming that it was revisable, the revision was competent before District Judge under amended law. It was also the case of learned counsel that the petitioners were awarded a decree for joint possession which was subject to partition as such Khas possession was not possible.
8. After hearing the learned counsel for the parties, the record made available to this Court has been examined with care and caution. It is an admitted fact that the petitioners brought a suit for possession regarding Survey No.259 measuring 3 Kanals and 3 Marlas against the respondents and they succeeded to secure a decree for possession. It is also admitted that the cross-suit for adverse possession by the respondents was disallowed. The respondent Muhammad Asghar and others were found strangers in Survey No.259 measuring 3 Kanals and 3 Marlas therefore, a decree for possession was granted in favour of petitioners. The petitioners are real brothers and Survey No.259 is their ownership and none-else. The record also shows that the decree for possession regarding Survey No.259 measuring 3 Kanals and 3 Marlas has been satisfied. Though the learned trial Court during previous round of litigation concluded suit for possession with a decree for joint possession nevertheless the fact remains that Muhammad Asghar and others (respondents) were neither co-sharer in the said survey number nor they claimed to do so. They are found as illegal occupants of Survey No.259 therefore, the word "Joint possession" used in the operative part of the judgment of the trial Court in the 1st round of litigation or in the decree-sheet upheld by the Appellate Courts appears to be result of some inadvertence or clerical mistake. It was a decree for specific possession and executing Court rightly ordered to hand over the possession (Khhas) to the decree-holders (petitioners). As the order for specific possession in view of decree was implemented in accordance with law therefore, the execution application was consigned to record in presence of the learned counsel for the respective parties. This Court thus, by exercising inherent powers rectifies the error in the decree by declaring it as decree fOr specific possession and not for joint possession in order to remove ambiguity. The respondents are found to have engaged the petitioners ina second round of litigation cleverly by joining another survey number so as to frustrate the decree in the favour of the petitioners. The controversy regarding Survey No.259 has already been resolved in favour of the petitioners therefore, the respondents are surely with dirty hands.
9. Now let us examine the legal aspect of the impugned order. The learned counsel for the respondents while defending it resorted to Order XL, rule 1 of C.P.C. This order is found to have been passed while dealing with an application for violation of an order of status quo. The learned trial Judge unfortunately allowed to prevail the argument of learned counsel for the respondent about immediate apprehension of breach of peace. It appears that learned Judge was entertaining' a request under section 145, Cr.P.C. In the capacity of a Magistrate. While dealing with an application for violation of order of status quo any appropriate order could be passed after having objection by the other side. The impugned order by no stretch of imagination can be accepted as an order under Order XL, rule 1, C.P.C. It is a patent illegality therefore, it can be rectified in revisional jurisdiction.
10. After close examination of Order XL, rule 1, C.P.C. And the case-law on the subject of appointment of receiver under the said provision of law, it appears that the object and purpose of 'the appointment of a receiver is preservation of the subject-matter of litigation pending adjudication of the rights of the parties thereto. This provision of law is to safeguard the interest of all parties as well as property which is the subject-matter of litigation. A plaintiff is under legal obligation to make out a prima facie case so as to persuade the Court to reach such conclusion.
One who seeks appointment of receiver is required to satisfy the Court that the protection and preservation of subject-matter because of expected waste or peril to such property, right and interest of the plaintiff therein is necessary. A person who is found to be in possession of a property in his own right and title should not be lightly dispossessed unless some peculiar circumstances or instance of waste and damage to property is shown. The appointment of receiver by dispossessing a party is a very harsh action which should not be resorted to lightly unless a strong case of damage or waste to the property is made out. The receiver is a representative of the Court and not of either party to the litigation. The appointment of receiver is always made to protect the property for equal benefit of those who' are interested in its distribution and to keep the property within the control of the Court. This power available to a Court is exercised only when the petitioner establishes 'a special equity in his favour but where the title of a party in possession is established then certainly the petitioner for appointment of receiver cannot ask for such appointment. The appointment of receiver is made in exceptional cases and in the circumstance where the interest of the party seeking appointment of a receiver is exposed to manifest peril. The party seeking such appointment therefore, has to show emergency or danger or loss to the property demanding immediate action. The element of danger is an important consideration and the Court cannot act on possible danger only. The possession of a person bonafidely in occupation of the subject- matter should not be disturbed unless there is an allegation of waste, mismanagement of the property or apprehension of irreparable loss and injury. This power is sparingly used by the Court and, if the interest of any plaintiff can be protected by another means, the Court should abstain its hands to appoint a receiver under the aforesaid provision of law. Where a plaintiff failed to establish specific instances'of alleged waste, mismanagement and misappropriation, the Court should refuse to appoint receiver under Order XL, rule 1, C.P.C. Reference may be had to (1992 CLC 2460, PLD 1977 Karachi 280, PLD 1980 Karachi 1093, 1994 CLC 247 and 1993 CLC 605).
11. There is yet another aspect of the case that the learned trial Judge did not appoint receiver himself but directed the Tehsildar to appoint receiver of the property which is quite illegal. While appointing a receiver under Order XL, rule 1, C.P.C., the trial Court is under legal obligation to appoint a receiver himself by conferring upon him all such powers as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property alongwith collection of rents and profit thereof or any other powers as the Court thinks fit. Here in this case, all these legal requirements were violated therefore, the impugned order is not sustainable on this ground too.
12. Here in this case, the petitioners were declared as full owners of Survey No.259 measuring 3 Kanals, 3 Marlas whereas the respondents were found stranger in the said survey number. They were declared illegal occupants over the suit-land. The petitioners were rightly put into possession and they had every right to protect the same. The fresh suit to the extent of Survey No.259 is a clear example to frustrate the decree about the said survey number upheld by the High Court. The impugned order is also an act to facilitate the frustration of the decree or writ of the Court. The impugned order therefore, is set aside. The suit by the plaintiff-respondents to the extent of Survey No.259 measuring 3 Kanals and 3 Marlas is hit by mischief of res judicata which is also disallowed under the revisional powers of this Court. The plaintiffs-respondents shall bear the costs of the present litigation. accordingly.