SYED HAMID ALI SHAH, J.---The case of the appellants as set out in this appeal is that appellant No.1 and respondent No.1 being real sisters maintained the relationship of love, respect and trust.
Appellant No. l while accepting the suggestion of respondent No.1, to invest her saving in the purchase of property, measuring 7 Marlas, bearing, No.153-G Phase-I, D.H.A., Lahore, transmitted from abroad amounts in this respect, through banking and other channels. Appellant No.1 thereafter provided further finds for construction of commercial plaza, considering that property is being purchased and the construction raised thereon, is, in the name of the appellants. When it revealed to the appellant No.1 on her return to Pakistan that the property had been purchased in the name of respondents, she showed her annoyance and agitated. The respondents justified their action on the plea that the membership of D.H.A. Is an essential requirement for the purchase of property in the vicinity. The property was purchased in the name of respondent No.2 only to complete the formalities. The presence of vendee was necessary, therefore, the property was purchased first in the name of respondent No.2 so that same be subsequently transferred in the name of respondent No.1. The respondents, however, agreed that transaction shall be declared as Benami transaction on arrival of appellant No. 1. Appellant No: l on this understanding became member of D.H.A. On 8-10-1995 vide Serial No.019988. Half of the property was transferred to the appellant through Hiba-bil-Ewaz and it stood completed through Letter No.COM/463 dated 21-4- 1996 and relevant entry in the record of D.H.A. Has been incorporated at Serial No.019988, the appellant No.1 is in possession of the plaza since then. Appellant No.1 assigned the task of management of the plaza to the respondents in the capacity of her managers, which was completed on 1-11-1993. The respondents failed to give satisfactory accounts of the income of the plaza, which gave cause to appellant No.1 to rescind the authority of the respondents as manager of the property/plaza, in the month of October, 2003 and the possession was taken.
2. Respondent No.1 instituted a suit against the appellant No.1 for declaration and permanent injunction on 10-2-2004 wherein the declaration of gift and letter of transfer dated 21-4-1996 was sought to be declared as illegal, void and inoperative. Appellant No.1 contested the suit and evidence is being recorded. Learned trial Court vacated the interim stay, dismissed the application under Order XXXIX, rules 1 and 2, C.P.C. Vide order, dated 30-9-2004. This order was challenged in F.A.O. No.250 of 2004. Respondent No.1 instituted another suit for possessions and recovery of damages against the appellant and Tariq Lateef, a lessee against their illegal dispossession on 2- 10-2004. The appellant also instituted a suit against respondents for declaration and permanent injunction with consequential relief of deletion of the name of the respondents from ownership of the suit property wherein injunctive order was passed and the same is operative in favour of the appellants. The respondent in her subsequent suit filed two applications one under Order XXXIX, rules 1 and 2 and the other under Order XL, rule 1, C.P.C. For appointment of receiver. The appellants filed an application under section 10, C.P.C., for stay of proceedings. Learned trial Court without deciding the application of the appellants, passed the impugned orders dated 31-1-2005, wherein learned Court ordered the deposit of 1/2 of the amount of Rs.1,65,000 (Rupees one lac sixty-five thousand only) received from respondent No.2 in respect of agreement, dated 20-10-2004 and deposit of 1/2 of the monthly rent in the Court, while deciding the application for appointment of receiver. The application for temporary injunction was allowed. Hence this appeal.
3. Learned counsel for the appellants has contended that the relief of temporary injunction has been denied to respondent No.1, in her earlier suit. Subsequent suit has been filed inter se the same parties with regard to same property on the same cause. Subsequently suit was liable to be stayed under section 10, C.P.C. An application in this respect was moved, but the learned Court has proceeded to pass impugned order, without deciding the application under section 10, C.P.C. The suit was liable to be stayed, no other proceedings were competent before the Court except for the decision of application under section 10, C.P.C., which was required under law to be decided first.
Learned counsel has submitted that bar under section 10, C.P.C. Is applicable to all classes of suits without any distinction, provisions of section 10, C.P.C. Are mandatory in nature and Court is bound to stay the subsequent suit, the moment it is brought to its notice. Learned counsel in support of his contentions has placed reliance on the case of Habib Bank Limited v. Ali Mohtvam Naqvi PLD 1987 Kar.
102. Learned counsel while referring to the cases of Jannana De Malucho Textile Mills Ltd. v.
Waqar Ahmad Chaudhry PLD 1972 SC 34; Mawas Khan v. Subedar Meher Dill PLD 1985 SC 215; Dr. Haider Ali Mithani and another v. Ishrat Swaleh and 4 others 1991 CLC 409 and Muhammad Amin v.
Muhammad Yasin 1991 CLC 1298 has contended that appointment of receiver is the harshest step and such power is to be used sparingly by the Court. Such power can be exercised only when there is no other mean to protect the right of the applicant. Learned counsel in support of his contention has relied upon the cases of Muhammad Hussain and 2 others v. Muhammad Asghar and 2 others 2004 MLD 1624 and Miss Qamar Ali v. Syed Nadir Ali and others 1993 CLC 605.
4. Learned counsel for the respondents on the other hand has fully supported the impugned orders.
Learned counsel has submitted that respondent No.1 was allotted the whole of suit-land, out of which she has gifted 50% property to the appellant. Affidavit of respondent No.1, dated 16-10-1995, clearly stipulates that respondent No.1 being owner has gifted the property. Appellant took over 50% of the property on the basis of gift. The acceptance of gift by the appellant is acknowledgment and admission by the appellant that the whole property vests in the ownership of the respondent No.1 and the possession of respondent No.1 with regard to the disputed property being its owner.
Respondent No.1 kept rights, title and ownership of the property to the extent of remaining 50% to her and it stands established through the transaction of gift. Learned counsel, however, submits that possession of the property subject-matter of gift, was not handed over to the appellant.
5. Heard learned counsel for the parties and perused the record.
6. The appellant has assailed the impugned orders mainly on the ground that in view of the pendency of application under section 10, C.P.C., the Court has erroneously proceeded to decide the applications under Order XXXIX, rules 1 and 2 and Order XLI, rule 1, C.P.C. Learned counsel emphasized that in a subsequent suit Court is not empowered to pass any order except to stay the proceedings. The arguments of the learned counsel for the appellant have no force. The phrase "no Court shall proceed with the trial of any suit" does not debar a party to institute a second suit but bar is to the extent of trial of the suit and stay would be operative so far as final decision of the suit is concerned. The scope and object of section 10 has also been discussed in the case of Sujanbai Haribhau Kakde and others v. Motiram Gopal Saraf and another AIR 1980 Bom. 188 wherein it was held that stay operates against the final decision, it cannot deprive the civil Court from passing orders on interim applications and granting interlocutory reliefs such as interim injunction or attachment before judgment etc. The identical question was examined by the Honourable Sindh High Court and it was held in the case of S.M. Akil Fikree v. Muhammad Qamaruz Zaman PLD 1982 Kar. 475 that in cases where trial has been stayed the Court will be competent to entertain and adjudicate upon interlocutory applications such as injunction applications, applications for attachment before judgment and appointment of receiver. AIR 1922 Bom. 276 was referred and considered by the Honourable Court. Even the decree passed contrary to the provisions of section 10 was held in the case of Ghulam Mustafa v. Family Judge Kharan and another PLD 1982 Quetta 63 not a nullity and cannot be disregarded. Similar view has been taken in the cases reported as AIR 1922 Bom. 276; AIR 1944 Nag. 335; AIR 1979 Masur 53 and AIR 1982 M.P. 203.
7. The above survey of the case-law reveals that there is no impediment in entertaining any interlocutory application such as B application for temporary injunction or the application for the appointment of a receiver, in a subsequent suit. The Court can proceed in the matters relating to interlocutory orders, only the trial of the suit is to be stayed.
8. Learned trial Court has considered that the appellant has 'herself accepted the gift of the 50% of the property and as such the ownership of respondent No, l to the extent of remaining 50% of the property stands established. The possession of respondent No.1 in the disputed property stands confirmed through reports of Local Commissions appointed by two Courts at different points of time. The Courts while granting the interim relief 'through the impugned order has committed no illegality. The Court has considered various aspects of the controversy and then passed the impugned order. The dismissal of the application of the respondent No.1, in the earlier suit has no bearing as in the earlier application the respondent No.1 has claimed the injunctive order regarding whole of the property while in the instant application the relief of injunction was restricted in the extent of 50%. The applications for temporary injunction and for appointment of receiver, have arisen on the cause of action accrued to the respondents on 2-10-2004, which is a subsequent act.
9. The impugned orders do not suffer from any illegality or legal infirmity, therefore, do not call for any interference. This appeal has no force and is dismissed accordingly.