1. ' RAHMAT RUSSIAN JAFFERI, J.---The present appeal is directed against the order dated 29-3-2007 passed by the learned single Judge of this Court in Suit No,768 of 2005, by which the learned Judge appointed receiver to take control of the suit property by allowing application under Order XLI, Rule 1, C.P.C. Filed by the respondent No,1.
2. ' Brief facts giving rise to the present appeal are that on 8-7-1997 the respondent No,2, who was the owner of the suit property, executed an Agreement to Sell it with the respondent No,1. In pursuance of the said Agreement, the respondent No,1 paid the entire sale consideration and received its possession from the respondent No,2. It is alleged that a dispute arose between them over the execution of the Sale-Deed on account of ban imposed by the Government on the sale of the properties.
3. ' It is further alleged that on 27-5-2005 the appellant in collusion with the respondent No,2 trespassed in the suit property and ejected the respondent No, l's Chowkidar from it. The respondent No,1 immediately requested the appellant to hand over its vacant and physical possession, but he refused to vacate the same and disclosed that the respondent No,2 had entered into an Agreement to Sell with him on 2-7-1996, therefore, the respondent No,1 filed the suit for declaration, specific performance, permanent injunction, possession and cancellation of agreement dated 2-7-1996.
4. ' Along with the suit the, respondent No,1 filed an application under Order XXXIX, rules 1 & 2, C.P.C.
5. The learned Single Judge restrained the parties from creating any third party interest. The respondent No,1 also filed application under Order XL, Rule 1, C.P.C. Read with section 94, C.P.C. For appointment of receiver on the ground that the property was likely to be wasted and mismanaged by the appellant. The learned trial Court issued notices to the parties. The respondent No,2 contested the application, but the appellant did not contest the same, as he failed to appear before the Court or argue or file any counter-affidavit to the said application. The learned Single Judge after hearing the advocate for the respondents Nos. 1 and 2 passed the impugned order.
6. ' We have heard the advocates for the appellant, respondents and perused the record of this case very carefully.
7. ' The learned advocate for the appellant has argued that the title of the respondent No,1 was disputed and the property was in possession of the respondent No,1, who was holding the same bonafidely, therefore, the receiver cannot be appointed. He has relied upon 1974 SCMR 54; that the respondent No,1 has no prima facie case in his favour; that the appellant had rented out the property to his tenant and he is receiving the rent. He has requested for setting aside the impugned order. He has relied upon (1) Yakhtiar Khan v. Rahim Bux PLD 1978 Karachi 401, (2) Azher Wali v. Bell Hellicopter Textran Inc. 1987 MLD 1336, (3) Salahuddin v. Rahim Bakhsh PLD 1992 Quetta 59, (4)
8. Abdul Karim v. Abdul Karim 2001 MLD 1905, (5) Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur PLD 1976 Karachi 181 (6) Shaikh Abdul Shakoor v. Shaikh Abdul Kadir 1982 CLC 707 (7) Muslim Commercial Bank Limited v. Panama Trading Co. (Pvt.) Ltd. 1998 MLD 1844, (8)
9. Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Karachi 409, and (9) Mithan v. Mst. Jamila 2001 YLR 2291.
10. ' Conversely, the learned advocate for the respondent No,1 has argued that the appellant has not denied the contents of para. 9 of the plaint under which it was specifically mentioned that the appellant had trespassed into the property and evicted the respondent No, l's Chowkidar; that the respondent No,2 has also treated the appellant as trespasser in his written-statement; that the appellant rented out the property after the order passed on the injunction application as he did not assert such fact in the written-statement or at the time of inspection of the suit property by the Nazir; that by letting out the property after injunction amounts to wastage of the property; that in the written statement the appellant is silent about the status of his occupation; that the agreement allegedly executed between the appellant and the respondent No,2 is a forged document through which no possession was handed over to the appellant. He has relied upon (1) Maqbool Hussain v.
11. Haji Muhammad Ashraf 1991 MLD 1134, (2) Aftab Ahmed Mufti v. Mst.. Seema alias Zareena 1988 CLC 1567 (3) Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lahore 60, (4) Motherwell Bridge Contracting and Trading Co. Ltd. v. Riaz Ali Khan PLD 1978 Karachi 1093, (5) Mst. Salina Abbasi v.
12. Ahmed Suleman 1992 MLD 746 and (6) M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54.
13. ' The learned advocate for the respondent No,2 has adopted the arguments of Mr. Abid S. Zuberi, Advocate for the respondent No,1 and has further added that the appellant is a land-grabber and is in habit of taking possession of the property of innocent people; that the agreement of the year 1996 is a forged and fabricated document; that no possession was handed over to the appellant, but the appellant had trespassed and forcibly occupied the property. He has admitted the execution of agreement of the year 1997 executed between him and respondent No, 1.
14. We have given due consideration to the arguments, gone through the material available on the record and case laws cited at the bar. Before we discuss the factual aspect of the case, it will be advantageous to observe that a Receiver appointed under Order XL, Rule 1, C.P.C. Is ordinarily an impartial and indifferent person between the parties to a cause, appointed by the court to receive and preserve the property or fund in litigation pendente lite, when it does not seem reasonable to the court' that either party should hold it or where a party is incompetent to do so as in the case of an infant. Thus, a receiver is an officer of the court through whom equity takes possession of the property, preserves it from waste and destruction, secures and collects the proceeds and ultimately disposes of them according to the rights and priorities of those entitled thereto, whether regular parties in the cause or only coming before the court in a reasonable time and in the due course of procedure to assert and establish their claims. The effect of the Appointment of a receiver is not to prejudice the case in any way. The only object and effect of it is to maintain things in their present condition during the pendency of the suit.
15. ' The main object of the appointment of a receiver is to protect the estate from unnecessary and expensive litigation, to preserve it for the equal benefit of those equally interested in its distribution and to keep the property at all times within the control of the court by which the receiver his been appointed. Thus, the receiver's possession is not a possession by any personal right. It is the possession of the court and he is totally devoid of any interest in the property. He is in the position of a stake-holder, who has custody of the property for the benefit of the true owner, hence the possession of the receiver is on behalf and for the benefit of all the parties to the to their rights in which he is appointed. Therefore, the property in the hands of receiver is in custodia legis for the person, who can make a title to it. No doubt through the appointment a chagce of possession takes place, but it has no effect upon the title of the property in any way and determines no right as between the parties, therefore, the possession of a receiver during the pendency of a suit should be regarded as possession for the party, who might ultimately turn out to be the true owner and entitled to possession as such. The effect of such possession by the receiver is to destroy the adverse possession.
16. ' It is pointed out that the issue of appointment of a receiver during pendency of suit and issue of injunctions, whether temporary or permanent, are a form of specific relief. Sir John Woodroffe in his Book "Law Relating to Receivers" observed that a- relief by specific performance, injunction and receiver belongs to the same branch of the law. The appointment of a receiver operates as an injunction against the parties, their agents and persons claiming under them, restraining them from interfering with the possession of the receiver except by permission of the court and an order for an injunction is always more or less included in an order for a receiver, therefore, it is not necessary, if a receiver be appointed, to go on and grant an injunction in terms. He fuirther observed that all th three forms of relief are dealt with by the Specific Relief .Act. The relief granted by appointment of a receiver pendente lite bears in many respeCts a close analogy to that by temporary injunction, as such, both are essentially preventive in their nature being properly used only for the prevention of future injury, rather than for the redress of past grievances and both have one common object in so far as they seek to preserve the res or subject-matter of the litigation unimpaired, to be disposed of in accordance with the future decree or order of the Court.
17. ' The appointment as well as the removal of a receiver is also a matter which rests in the sound discretion of the Court. In exercising its discretion, the court should proceed with caution and be governed by a view of the whole circumstances of the case. It is pointed out that a receiver should not be appointed in suppersession of a bona fide possessor of property in controversy unless there is some substantial ground for interference. Reference is invited to the case of M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54. It will be noticed that in Order XL, Rule 1, C.P.C. The words "just and convenient" have been used, which mean that the Court should appoint a receiver for the protection of property or the prevention of injury, according to legal principle and not that the court can make such appointment because it thinks convenient to do so. References are invited to the cases of Habib v. Abtia (23 CU 567) and Bhupendra v. Monohar (28 CWN 86). As regards appointment of receiver, a receiver can be appointed, if it is found that the estate is in danger, because no longer properly managed or that difficulties have arisen in connection with litigation about the properties comprised in the estate or that there is good ground to apprehend that the defendant may misapply trust funds. The main principles upon which such discretion should be exercised have been laid down in the case of Owen v. Homan (94 RR 516) and those principles have been held to be equally applicable in Pakistan as in England, as observed by the then justice Cornelius in a case of Lala Roshan Lal v. Ch. Muhammad Afzal PLD 1949 Lah.
60. In the Owen's case Lord Cranworth said:-- "The receiver, if appointed in this case, must be appointed on the principle on which the Court of Chancery acts, of preserving property pending the litigation, which is to decide the right of the litigant parties. In such cases the Court must of necessity exercise a discretion as to whether it will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were in medio, in the enjoyment of no one, the Court can hardly do wrong in taking possession.
18. It is the common interest of all parties that the Court should prevent a scramble. Such is the case when a receiver of a property of a deceased person is appointed pending a litigation in the Ecclesiastical Court as to the right of probate or administration. (1) No one is in the actual lawful enjoyment of property so circumstanced, and no wrong can be done to anyone by taking it, and preserving it for the benefit of the successful litigant. But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. In all cases, therefore, where the Court interferes by appointing a receiver of property in the possession of the defendant before the title of the defendant is established by decree, it exercises a discretion to be governed by all the circumstances of the case."
19. Now we will revert to the facts of the present case and would examine the same in the light of the above legal position. The main allegation of the appellant is that there was an agreement between him and the respondent No,2, but the said agreement has been denied by the respondent No,2. In the plaint, the respondent No,1 specifically alleged that the appellant trespassed into the property and evicted his Chowkidar. The appellant did not specifically deny the said fact. The said fact has been supported by the respondent No,2 as clear from para 10 of his written-statement. Thus, on this account the respondent No,1 has primarily established a. Prima facie case in his favour. Thus, apparently the alleged possession of the appellant is not a bona fide possession, therefore, his possession cannot be protected in the present circumstances of the case as appearing at this stage.
20. ' As regards the appellant letting out the property to his tenant, the written-statement is silent, as no such plea was raised in it. It also appears that at the time of inspection of the property by the Nazir he did F not mention such fact to him. In these circumstances, the learned advocate for the respondent No,1 has argued that the said plea was set up after filing the written-statement in order to protect the illegal possession of the property.
21. ' It is pertinent to point out that the appellant has not come to the Court with clean hands, as at the time of filing appeal, he took the plea and levelled allegation against the learned Single Judge that the application under Order XL, Rule 1; C.P.C. Was taken up when it was not fixed for hearing and on the basis of such statement coupled with other grounds we suspended the impugned order. The learned advocate for the respondents Nos. 1 and 2 seriously challenged the said stand of the appellant by stating that the application was fixed for hearing on that date and produced the relevant orders of the Court and case diaries. When confronted with the said position, the learned advocate for the appellant conceded that the application was fixed for hearing on the date when it was decided and that it was not taken out of turn. The conduct and stand of the appellant taken before this Court show that he had made incorrect statement before the Court knowing fully well that the application was fixed for hearing on that date when it was decided. It is well-settled principle of law that whosoever comes for equity he must come to the Court with clean hands.
22. ' After considering the material available on the record, we are of the considered view that the impugned order does not suffer from any illegality or irregularity, as such, it does not require any interference.
23. ' Above are the reasons of the said short order dated 18-5-2007, by which we had dismissed the appeal.