1. 'C.M.A. No,8839 of 2008 ' KHAWAJA NAVEED AHMED, J.-This application being C.M.A. No,8839 of 2005 has been moved by the plaintiff under O.XL, rule 1 read with sections 94 and 151, C.P.C, for appointment of Receiver of the properties, namely, 5, Fountain Marriage Hall, located at Plot No,D-10, Block N, Near Sakhi Hasan, North Karachi and Plot bearing No,C-242, Block 14, Gulistan-e-Jauhar, Karachi (hereinafter referred to as the "Suit Properties"). In this application, the plaintiff has also prayed for disbursement of shares from the profit of the Suit Properties.
2. ' The brief facts of the case are that plaintiff Anwer Hussain son of Riaz Hussain has filed Suit No, 1023 of 2005 in original jurisdiction of this Court on 10-10-2005 against his brother Afsar Hussain son of Riaz Hussain, his cousin Ms. Fouzia Begum d/o Ahmedullah and his mother Mrs. Arshad Jehan wife or Riaz Hussain. It is stated that the plaintiff is coowner of the property/business concern.
3. Fountain Marriage Hall, located at Plot No, D-10, Block N, Near Sakhi Hasan, North Karachi having 25% shares in the property/business while the remaining 75% pertains to defendants Nos. 2 and 3.
4. In support of his contentions, he has filed Sale-deed dated 7-2-2004 in respect of property bearing Plot No,D-10, Block N. Near Sakhi Hasan, North Karachi, as Annexure "A" to the Plaint. He has further stated that he is also co-owner of property bearing Plot No,C-242 Block 14, Gulistan- e-Jauhar, Karachi, which is being used as School and he claimed 50% share in it. In support of his claim he has filed photocopies of transfer/mutation order dated 1-1-1996 and letter dated 31-12-1996 from K.B.C.A as Annexure "B" to the Plaint. The plaintiff claimed that he was getting the profits from the defendants uptil May 2005, but thereafter the co-owners of the property have stopped paying him his share from the property for reasons not known to the plaintiff. The plaintiff has stated that he has entered into second marriage with a lady of his own choice and since then the defendants have stopped making the payment of his shares to him and are also extending threats of dire consequences to him and his wife. He has stated that by doing so they have made the life of the plaintiff as well as his wife miserable and painful. The plaintiff has demanded 25% profit from the income of property No,l and 50% shares from the income of property No,2 from may 2005.
5. ' Prior to filing the instant suit, the plaintiff had sent legal notices to the defendants, which are annexed to the Plaint as Annexures C, C-1 D, D-l, and E and E-1. He has made the following Prayers in the Plaint:- ' In view of the above, this Honourable Court may be pleased to grant following relief (s)/decree , (s)/ judgment (s)/ order (s) in favour of the plaintiff and /or against the defendants as under:
(a) To declare that the plaintiff is a lawful owner of 25% of the property of Marriage Hall bearing No,D-10, Block N, Near Sakhi Hassan, North Nazimabad, Karachi and/ or entitled for the 25% share and/or profit on monthly basis from May 2005 till the disposal of the instance and/or onwards.
(b) Declaration that the plaintiff is also lawful owner of the property bearing No,C-242 Block 214, Gulistan-e-Jauhar, Karachi and entitled for the 50% rent amount to PKR 25,000 only on month basis from May 2005 till the disposal of the suit and/or onwards.
(c) Permanent Injunction(s) restraining the defendants and their agents and personals, from transferring and / or alienating the properties (1) Messrs Five Fountains Marriage Hall Bearing No,D- 10, Block N, Near Sakhi Hassan, North Nazimabad, Karachi and /or (2) C- 242 Block 14, Gulistan-e- Jauhar, Karachi in any manner and/or creating any 3rd party right (s), and any charge over the property in question.
(d) To take over the possession of the above properties according to the shares of the plaintiff may be awarded to the plaintiff.
(e) To pass judgment and decree of Administration, and / or Partition (s) of the properties (1)
6. Messrs Five Fountains Marriage Hall Bearing No,D-10, Block N, Near Sakhi Hassan, North Nazimabad, Karachi and/or (2) C-242 Block 14, Gulistan-e-Jauhar, Karachi, be awarded.
(f) Decree the Accounts of the suit's properties from May 2005 till filing of the suit and/or onwards.
(g) Grant any other further and/or better and/or additional relief and/ or reliefs to the plaintiff under the circumstances.
(h) Award cost(s) of the suit.
7. ' Defendants Nos.l and 3 have filed their Written statement, stating therein that plaintiff was co- owner of the property / business concern 5, Fountain Marriage Hall, located at Plot No,D-10, Block N, Near Sakhi Hasan, North Karachi but plaintiff and defendant No, 1 have sold their shares in the said property to one Dr. Munawar Hussain vide Agreement dated 30th May 2005. It is further stated in the written Statement that since the Agreement was not complied with by the plaintiff, therefore, the said Dr. Munawar Hussain had filed Civil Suit No, 1078 of 2005 in the High Court, in which the present plaintiff is defendant No,l.
8. ' Regarding property bearing Plot No,C-242, Block 14, Gulistan-e-Jauhar, Karachi, defendants Nos. 1 and 3 have stated that plaintiff and defendant No,l have sold this property to Mst. Seema Zahid Hussain vide agreement dated 8-5-2002 and consideration was received by the plaintiff through remittance from United Kingdom. It is further stated that Mst. Seema Zahid Hussain has filed suit No, 601 of 2005 against the plaintiff and defendant No, 1 in the Court of IV Senior Civil Judge Karachi East. It is further contended in written statement that in consequence of sale of 50 % shares by the plaintiff and defendant No,l to Dr. Munawar Hussain, the business of Marriage Hall was handed over to Dr. Munawar Hussain and presently Dr. Munawar Hussain is drawing the profit ' from the Marriage Hall which was share of plaintiff and defendant No, 1 . Since the plaintiff has not complied with the Agreement, executed by him with Dr. Munawar Hussain, Dr. Munawar Hussain has filed Suit No,1078 of 2005. The defendants have stated that School is being run in the name of Brilliant Scholar Academy of which plaintiff and defendant No,1 are also Member and none of the defendants are drawing share or rent from School property hence the plaintiff is not entitled for any amount, as has been claimed in paragraph 4 of his plaint.
9. ' The defendants have denied paragraph 5 of the plaint, while the contents of para. No,6 have been partly admitted. It is mentioned in para. 6 of the written statement that one Shazia Saeed is not wife of plaintiff as shown by him as one of his legal heirs in the list of witnesses.
10. ' The factual position is that Shazia Saeed is still wife of one Tariq Zaman, with whom she has contracted marriage but subsequently she put the plaintiff in her net with main object to usurp his property. It is stated that Shazia Saeed has taken divorce from Tariq Zaman and as such she is not wife of the plaintiff. It is stated that Tariq Zaman has filed civil Suit No,11 of 2005 before Civil and Family Judge Karachi for restoration of conjugal rights against Shazia Saeed but the said suit was dismissed for non-prosecution.
11. ' The defendants have admitted in para. No,8 of the written statement that legal notices were received by them. The defendants in para. 11 of written statement have stated that the plaintiff is not entitled to injunction as business of Marriage Hall has already been handed over by him to Dr. Munawar Hussain. It is stated that the suit is misconceived, based on concocted and concealed facts and is liable to be dismissed.
12. ' I have heard Mr. Sardar M. Ajaz Khan, learned counsel for the plaintiff, Mr. Iftikhar Javaid Qazi, learned counsel for the defendant and have perused the record of the case.
13. ' I have perused C.M.A. No,8839 of 2005, its supporting affidavit as well as Counter Affidavit to C.M.A, filed by Afsar Hussain defendant No,1 stating therein that he is cousin of defendant No,2 who is presently in Saudi Arabia whereas defendant No,3 is his real mother. He has stated that the above C.M.A. Is not maintainable as the plaintiff has come to this Honourable Court with unclean hands and is not entitled to equitable relief of appointment of Receiver, particularly, for the reason that the instant application has been filed with mala fide intention and ulterior motive to deprive the original owners to enjoy their properties.
14. ' A cursory examination of the above facts would reveal that there are serious differences between the plaintiff and defendants for the reason that the plaintiff has contracted another marriage with Mst. Shazia Saeed, which marriage has not been accepted by the family of the plaintiff and as such the whole family joined hands on one side and have expelled the plaintiff from their business and have deprived him of his regular monthly income. The defence taken in the written statement is not only absurd but is un-natural and unbelievable at the face of it.
15. ' Though, it is mentioned in the contents of written statement that photocopies of plaint of Civil Suit No,1078 of 2005 and Civil Suit No,601 of 2005 have been annexed with the written statement but the Same have not been filed and the same are not available in the Court file.
16. ' It is settled principle of law that the property does not change hands mere upon entering into the Sale Agreement under the provisions of Transfer of Property Act unless the Sale Agreement is registered or Sale-deed is registered before the Registrar after payment of required Stamp Duty, the property remains in the name of its previous owners. Mere Agreement to Sale is not sufficient to change the ownership or title of the property. In the present case, though the defence has been taken that property No, 1 has been sold to Dr. Munawar Hussain but neither copy of Sale Agreement has been filed nor the copy of plaint is available in the Court file. In the end of written statement, it is n;ientioned that documents filed as Annexures A, B, and C but none of the annexure is available on the record.
17. ' The learned counsel for the plaintiff in support of his contentions has relied upon following authorities:
(1) Messrs A1 Riaz Packages (Pvt) Ltd. V. Akhlaque Hussain 1990 CLC 631;
(2) Moinuddin Paracha and ors. v. Sirajuddin Paracha and others 1993 CLC 1606;
(3) Syed Khurshid Sohail v. Aziz Hami and 4 others 1988 M LD 381;
(4) Mazhar Hussain and 4 others v. Jan Muhammad and 13 others 2000 YLR 2056;
(5) Zafreen Iqbal. 2008 CLC 741. In the first case, 1990 CLC 631 Messrs A1 Riaz package (Pvt.) Ltd V.
18. Akhlaque Hussain relevant para is at Page 636. The learned Single Judge of this Court while appointing Nazir of the Court as Receiver has observed as under;- "As regards the question of grant of Injunction, appointment of Receiver and Attachment before judgment it may bear recalling that, following upon the institution of this suit, an order was passed, on 6-12-1987, whereunder the defendant has restrained from selling the machinery and car till further orders. Such order has remained in force throughout but, according to the plaintiff Company, serves little purpose as the assets of the plaintiff Company remain in wrong hands, occasioning benefits to those disentitled, on their own acts, and waste in so far as rightful claimants are concerned. The fundamental point for consideration is that the rights and deviations therefrom between parties to this litigation who, admittedly, are shareholders in the plaintiff private limited Company, are akin to .And in the nature of disputes-between partners in a firm as declared by the Supreme Court in the case of Ladli Prasad v. Karnal Distillery Co. PLD 1965 SC 221 and reaffirmed in this Court in the case of Lilawati v. Anwarul Islam PLD 1971 Kar 25 and have to be dealt with as such. The protective measure to be set into motion where on partner is shown to be acting adversely to the interest of the other or others are too well known to bear repetition. In such cases the other partners or partners has/have a present right to dispossess the transgressor and waste, a necessary ingredient to be established for grant of the equitable remedy of appointment of an Interim Receiver, is to be assumed to subsist. The rule on principle, on analogy and on authority should be and is the same involving disputes between shareholders in a private limited Company."
19. ' In other authority relied upon by the learned counsel for the plaintiff is 1993 CLC 1606, Moinuddin Paracha and others v. Sirajuddin Paracha and others. In this case while appointing receiver the Honourable Court has observed as under:- "To sum up the plaintiffs are the co-owners of a substantial share and have always been associated with the control and management of the suit properties, were dispossessed from such de facto management by the said defendants who were denying the sue share of the plaintiffs and are depriving them of their due share in the suit property, exact share of the different parties in the suit is in dispute and is to be resolved, the said defendants have prima facie circumvented the order passed by this Court in Suit No,373/1985, various tenants are depositing rent in the Courts, the property in suit is already subject matter of litigation in suit Hied by the banks for recovery of loans, the parties are at daggers drawn and are involved in litigation among _themselves^r E>efendanr No,15 has supported the application under consideration and defendants Nos.9,13,14 and I6 to 24 have nqt come forward to contest the application. Under the above circumstances the property is in danger of being wasted and dissipated and as held above it is only just and convenient and also in keeping with the equitable principles that for preservation of the property, receiver be appointed.
20. I accordingly appoint Mr. Bashir Ahmed Memon, the Official Assignee as receiver of the suit property. It is, however, observed that if any receipt is to be changed or any vacant premises is to be let out, the receiver will do so after consultation with the respective representatives of the plaintiffs, said defendants and the remaining defendants and in case if such representative is not appointed, the receiver will do so after consultation the plaintiff No, 1 and defendant No,l and if they or any of them is not cooperative, permission will be sought from the Court."
21. ' In third case reported in 1988 M LD 381, Syed Khurshid Sohail v. Aziz Hami and 4 others Mr. Justice Salim Akhtar, as he then was while appointing Official Assignee as Receiver has observed:- "It is an equitable remedy which is to be granted on equitable considerations. Before a receiver is appointed the Court should satisfy that the plaintiff has made out a prima facie case and has fair chances of success. It is a discretionary relief which is sparingly used to safeguard the interest of the parties as well as the property. Reference can be made to Wali Muhammad v. Muhammad Iqbal Khan Mokal and others PLD 1975 Lah 492".
22. ' In 2000 YLR 2056, Mazhar Hussain and 4 others v. Jah Muhammad and 13 others the Honourable Supreme Court of Azad Jummu and Kashmir relevant Page is at 2059 has observed as under:- "There is ample authority in support of proposition that where a party establishes a joint title in the suit-land with defendant which is denied by him, as is in the present case, the receiver shall be appointed because it would be just and convenient to do so for keeping the scale of justice."
23. ' Apart from the above authorities, there is one judgment passed by me, in the case of Zafreen Iqbal reported in 2008 CLC 741. In this judgment I have mentioned that there are five requirements for appointment of the Receiver, which are reproduced as under:-
(1) The appointment of receiver pending a suit is a matter resting in the discretion of the Court.
24. 'The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
25. 'Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.
26. ' An order appointing a receiver will not be made where it has the effect of depriving a defendant of a "de facto" possession since that might cause irreparable wrong. It would be different where the property is shown to be "in medio" that is to say, in the enjoyment of on one. And ' The Court on the 'application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame."
27. ' Learned counsel for the defendant Mr. Iftikhar Javaid Qazi, has relied upon following authorities:- 1982 CLC 1044 Salma Zaheen and others v. Anwar H. Pir Bhai.
(2) 1985 CLC 2600 Rais Tayyab and others v. Raza Muhammad & others '1988 CLC 2195 Mir Muhammad v. Hashim and others.
28. ' In the first case 1982 CLC 1044, Mr. Justice Salim Akhtar, as he then was has observed as under:- "The provision of Order XL Rule 1 C.P.C, can be pressed in service where it appears to the Court to be just and convenient to appoint a receiver. It is invoked to prevent the ends of Justice from being required to make out a prima facie case, establish his title or substantial interest in the property coupled with the fact that the property is being wasted mismanaged or there is every likelihood of its being alienated and wasted. "
29. ' In the second case 1985 CLC 2600 Rais Tayyab and others v. Raza Muhammad and others relied upon by the learned counsel for the defendant it was observed as under:- "The object and purpose of appointment of Receiver may generally be stated to be preservation of the subject matter of the litigation pending a judicial determination of the rights of the parties thereto. Since the Receiver disturb the person in possession the appointment of receiver is recognized as one of the harshest remedies which the law provides for the enforcement of right, so the jurisdiction must be exercised in extreme case."
30. 'In the third case 1988 CLC 2195, Mr. Justice Saeed-uz-Zaman Siddiqui while declining to appoint receiver has observed as under:- "The plaintiff failed to establish specific instances of alleged waste, mismanagement and misappropriation. This was a case of inheritance in which claim of one of the legal heirs of deceased in respect of the property left by deceased was disputed by other legal heirs on the ground that deceased had settled the question of inheritance during his life time."
31. ' I have perused the contents of the plaint, written statement and application filed under Order XL rule 1 read with sections 94 and 151, C.P.C, and its supporting affidavit. Counter Affidavit and case law and arguments of the learned counsel for the parties. ' ln the present case almost all the facts mentioned in the plaint are admitted by the defendants in respect of shares of the plaintiff in the suit properties. The defendants have taken a usual defence the shares of the plaintiff as well as defendant No,l have been sold out to third party. Neither the Sale Agreements have been filed along with the plaint nor copies of the plaints of suits filed in the other Courts have been produced. Moreover, presents suit is pending since 10-10-2005 in this Court.
32. The alleged purchasers of the properties have not moved a single application in this suit under Order I, Rule 10, C.P.C, for becoming party in this suit. This fact alone is sufficient to draw interference that Dr. Munawar Hussain and Mst. Seema Zahid Hussain are planted persons by defendant No,l and the suits mentioned in the written statement have been filed only to prolong and complicate the proceedings in this case in order to deprive the plaintiff of his shares in the properties. At this stage, it is not proper for me to give any opinion in respect of the merits of the case because it may prejudice the case of either party. However, for deciding this application. I have to assess tentatively the pleadings of the parties for making up my mind for appointment of Recover. I am satisfied that from the pleadings the plaintiff has made out a good prima facie case wherein jurisdiction to appoint Receiver can safely be exercised.
33. 'The contentions of Mr. Iftikhar Jawaid Kazi, learned counsel for the defendant and case law produced by him revolves around the point of waste. First authority relied upon by him is in respect of crops which was raised by the parties having possession of the same by putting hard labour, Court had declined to appoint the Receiver. The other case is in respect of the inheritance. The facts of the above cases, relied upon by Mr. Iftikhar Javaid Qazi are not applicable in this case.
34. 'Reverting back to may own judgment reported in the case of Zafreen Iqbal, wherein I have mentioned five requirements for appointment of Receiver (supra), I hold that the present plaintiff has successfully fulUlled the requirement at Serial No,2, which is about prima facie case and has excellent chance of succeeding in the suit, requirement No,3 is regarding case of adverse and conflicting claims to properties and requirements No,S is regarding conduct of the plaintiff which has to be free from blame. The requirements Nos.2,3 and 5 (Supra) have been fulfilled.
35. ' In the present case, only blame against the plaintiff is that he had married a woman who is still wife of an other man. This blame is in respect of matrimonial relations of the plaintiff and has nothing to do with the suit properties, its management, waste, misappropriation or danger to the properties. T^e plea taken by the defence has not been substantiated by them so far.
36. ' In view of the above discussion, I allow this application and appoint Nazir of this Court as Receiver of the Suit Properties. He will seize the entire accounts and take accoimts of all the income of Marriage Hall and School from the date of institution of the suit till today, and will keep future accounts with him. The defendant is directed to submit monthly accounts of the income to the Nazir of this court. The entire income will be deposited with the Nazir who will disburse Rs,25,000 per month to each partner from the income generated from Marriage Hall and School till further order.
37. During the pendency of this Suit, no third party interest should be created by either party on the suit properties. C.M.A. No, 8839 of 2005 is allowed in the above terms.