1. ' Heard the learned counsel appearing for the parties. Respondent No,l Haji Zangi Khan filed Suit bearing No,367 of 2007 in this Court on its original jurisdiction with the following prayers;
(a) To declare that the sale agreement 20-2-2006 and revised agreement to sell, dated 3-10-2006 entered in between the plaintiff and defendant No,l in respect of sale of said property i.e, Plot No,A-
431. Block-1, K.D.A. Scheme No,24. Ghushan-e-Iqbal admeasuring 220 sq. Yards along with construction there, were entered, executed and signed by the defendant No,l for sale of her above said property with her free unconditional consent, sound mind without any coercion, under influence, fraud and misrepresentation and or mistake and said contract/agree- ments of sale in respect of said property is legal valid and enforceable under the law, and any oral or written claim of defendant No,2 in respect of said property is null and void and having no legal effect.
(b) To further declare that the plaintiff is entitled for specific performance of the contract in respect of said property and also to claim mesne profit from the defendants @ Rs,25,000 per month with effect from filing of suit till hand over physical vacant possession of 1st and 2nd floor portions of the said property to claims monthly rents from all six tenants of rented shops in the suit property with effect from filing of suit till said tenants enjoy the tenancy rights of rented shops and also to claim damages of Rs, 10,000,000 (Rupees Ten Millions only) from the defendant No, 1 for breach of contract, mental torture, physical stresses, business and financial losses etc.
(c) Specific performance of the contract in respect of immovable property i.e, Plot No,A-431, Block-1, K.D.A. Scheme No,24 Ghulshan-e-Iqbal, admeasuring 220 sq. Yards directing the defendant No, 1 to execute and sign sale-deed in respect of the said property (suit property) in favour of the plaintiff before the Sub-Registrar Gulshan- e-Iqbal Karachi in compliance of sale agreement, dated 3-10- 2006, and in case of her failure to do so, the same be done through the Nazir of this Honourable Court.
(d) Possession of first floor and second floor of the said property i.e, Plot No,A-431, Block-1, K.D.A.
2. Scheme No,24, Gulshan-e-Iqbal, admeasuring 220 sq-yards along with delivery of remaining' title documents in respect of the said property to be delivered to the plaintiff by the defendants or by any person having possession and control/custody thereon and also recovery of monthly rents by the plaintiffs from tenants of suit property with effect from filing of suit till they enjoy the tenancy rights of rented shops.
(e) Mandatory injunction direction the defendants to pay mesne profit in respect of first floor of the said property i.e, Plot No,A-431, Block-I, K.D.A. Scheme No,24, Gulshan-e-Iqbal, admeasuring 220 sq- yards Rs,25,000 per month to the plaintiff from the date of filing of the suit till the possession of the same is handed over to the plaintiff.
(f) The defendant No,l also be directed to pay damages of Rs, 100,00,000 (Rupees Ten Millions Only) to the plaintiff for commission of breach of contract and also for causing mental tortures, physical stresses, harassm ent, financial and business losses for pursuing litigations in respect of the said property in the courts including the various expenditures spent by the plaintiff for and on behalf of defendant No,l.
(g) Permanent injunction restraining the defendants, their men, agents, workers, heirs, relatives or any person or persons from threatening the plaintiff for vacating the residential portion of ground floor of the said property and or from collecting the rent from the tenants and compelling and stopping the tenants of the said property for refusing payment of monthly rent of their tenements to the plaintiff and also from creating any third party interest in respect of die said property in any manner and or setting up any hostile oral or written claim of the defendants and or from getting possession of the remaining' title documents of the said property from the custody of police of SITE Police Station.
(h) Cost of the suit.
(i) Any other relief which this Honourable Court may deem fit and proper under the circumstances of the case. The appellant as well as respondent No,2 have been contesting the said suit. A counter-Suit bearing No,94 of 2007 is also filed by present appellant in this Court with the following prayers:-
(a) To declare the alleged power of attorney dated 20-10-2006 which has never been issued to the defendant No,l by the above named plaintiff in respect of any transaction on behalf of the plaintiff towards any property or matter of the plaintiff including the suit property and be declared as fake, forged and manipulated document and of no legal effects.
(b) To declare the alleged sale agreement in respect of the suit Property bearing No,A-431/1, Block- 1, K.D.A. Scheme No,24, Gulshan-e-Iqbal, Karachi admeasuring 220 sq-yards, allegedly executed by the plaintiff in favour of the defendant No,l in the year, 2006, is a fake, forged and manipulated document which has not been executed by the plaintiff in favour of the defendant No,l nor the plaintiff has given any consent of sale of the suit property and be declared as void, illegal, unlawful and of no legal effects which is manufactured fraudulently without knowledge and consent of the plaintiff.
(c) To restore the possession of the ground floor of the suit Property bearing No,A-431, Block-I, K.D.A.
3. Scheme No,24, Gulshan-e- Iqbal, Karachi admeasuring 220 sq- yards, which has been illegally and unlawfully occupied on gun point by the defendant No,l with the collusion of other defendants through gunda elements.
(d) To further declare that the plaintiff is entitled to recover the damages of Rs,50 Lacs (Rupees Fifty Lac only) from the defendants jointly and severally for causing the extreme mental torture, harassm ent, physical stress, illegal confinement with defendant No,2 and committed various criminal and fraudulent acts.
(e) To direct the defendants any person on their behalf holding the original documents of the suit Property bearing No,A-431/1, Block-I, K.D.A. Scheme No,24, Gulshan-e- Iqbal, Karachi admeasuring 220 sq- yards, and four original files of the plots of Post Office Society, purchased by the plaintiff lying with the defendants when committed theft and deliver the same to the plaintiff.
(f) Permanent injunction, restraining the defendants, their men, agents, workers or any person or persons on their behalf from creating the third party interest or from selling, transferring in any manner in respect of the suit property of the plaintiff bearing No,A-431/1, Block-I, KDA. Scheme No,24, Gulshan-e-Iqbal, Karachi admeasuring 220 sq-yards, on the basis of fake and manipulated document of alleged power of attorney, dated 20-10-2006 and alleged sale agreement of 2006.
(g) Any other relief/reliefs which this Honourable Court may deem fit and proper in the circumstances of the case.
(h) Cost of the suit.
4. During the proceedings of the suit, respondent No,l filed an application under Order XL rule 1, C.P.C.
5. With a prayer to appoint Receiver for the purpose of collection of the rental amount being earned by the plaintiff of the said suit out of the said property. The learned Single Judge heard the said application and vide order, dated 9-5-2008 allowed the same with the following observation:- 'I have heard learned Advocates for the parties at great length. I have also gone through the case papers including the documents annexed in the matter. The plaintiff has claimed his right over the property by virtue of sale agreement, dated 20-2-2006 and on the strength of alleged power of attorney'executed by the defendant No,l in his favour. He has allegedly made payment to the defendant No,l through cheque No,0667029, dated 20-2-2006 and pay order No,06667029 dated 20-2-2006. As a matter of record, the defendant No,l got cheque and pay order encashed which prima facie shows that the plaintiff and defendant No,l had entered into transaction of sale in purchase of the suit property. Had it been so that the defendant No,l was not inclined to have entered into sale agreement then of course she would have not withdrawn or encashed said cheque and pay order respectively. This establishes relationship of seller and buyer between the parties. Allegedly defendant No, 1 is getting monthly rent from seven shops rented out at different rates. Of course, Suit No,94 of 2007 has been filed by Mst. Saeeda Khatoon for cancellation of documents while Suit No,367 of 2007 has been filed by Haji Zangi Khan, who is defendant No,l in that suit for declaration, specific performance, possession, mesne profit, damages, mandatory and permanent injunction. In these peculiar circumstances of the case, it will be in the interest of both the parties that the rent should be deposited by the tenants with Nazir of this Court and the same shall not be withdrawn till decision of these suits. The Nazir is required to issue such intimation notice to all defendants requiring them to pay monthly rent regularly. Accordingly, this misc.
6. Application is allowed as prayed. Nazir of this Court is directed to do the needful and report compliance within a fortnight.
7. 'Hence the Appellant Mst. Saeeda Khatoon has filed present High Court appeal against the said impugned order.
8. It is a settled principle of law for the purpose of Order XL Rule 1, C.P.C. a party seeking appointment of a Receiver, over the property jnvolved in a particular suit, has to prove, at such interlocutory stage of the suit itself, by means of cogent evidence, that property involved in the suit is at a great risk and danger of getting destroyed at the hands of the other party, so as the same is likely to cause irreperable loss to the party and therefore it is most essential that a Receiver may be appointed and direct to take over the possession of such a property.
9. In the case in hand, it is an admitted fact that the parties have filed counter suits against each other, inasmuch as one party has filed suit for specific performance of the contract which stands disputed by the other (with some other prayer), whereas the other party has filed its own suit with a prayer to get the sale agreement cancelled (which is claimed by the first party to have been actually and genuinely executed by the other).
10. Thus, the counter-claims raised by the parties, respectively, are yet to be heard and adjudicated upon by means of the evidence which may be produced by both the parties in the said suits. On the other hand, subsection 4 of section 55 of the Transfer of Property Act reads as under:- "(4) The seller is entitled:-
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee consideration or any transferee with notice of the non-payment, for the amount of the purchase- money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered."
11. 'Under the circumstances, it would suffice to state that until and unless respondent No,l proves his case satisfactorily to entitle him to the decree of the specific performance of the contract, in pursuance of the disputed sale agreement, he cannot claim any right, title or interest in the rental amount being earned by the appellant, from the disputed property.
12. 'Hence the High Court appeal is hereby admitted as well as allowed, with the result that impugned order is set aside leaving the parties to bear their own costs. Application under Order XL Rule 1, C.P.C. Stands dismissed.