' ZAFFAR HUSSAIN MIRZA, J.-This High Court appeal is directed against an interlocutory order dated 2-6-1980 passed by a learned Single Judge of this Court in chambers on the original side in pending Suit No, 510 of 1977 appointing the Official Assignee of this Court as receiver of the property in dispute in the Suit.
2. The suit has been filed by respondents 1 to 9 before us against the appellant, one Asrarul Haq and respondents 10 to 12. The dispute relates to Saltworks known as the "Khurshid Salt Works".
Plaintiff No. 1, Alvia Tablighi. Trust is a registered Trust and plaintiffs 2 to 9 (Respondents 2 to 9) claim to be the founder and trustees of the Trust respectively.
3. The case of the plaintiffs as disclosed in their plaint is that the Trust already owns a Salt Works known as "Sind Salt Works". It is alleged by them that Khurshid Salt Works being available for sale, the plaintiff 2 being the founder of the Trust agreed to finance the purchase of the said concern for the Trust. Accordingly he instructed Mujibur Rehman, appellant 1 who was also one of the "trustees to arrange and finalize the purchase for the benefit of the Trust. Accordingly an agreement was concluded with the owners of the Salt Works for sale whereby the price was settled at Rs, 7,50,000 and out of this amount a sum of Rs, 1,50,000 was paid to the owners at the time of execution of the sale agreement and the balance was stipulated to be payable by 12 monthly instalments of Rs, 50,000, as per Schedule contained in the agreement. It has been claimed by the plaintiffs that for the payment of Rs, 600,000 (Rupees six lacs) as per schedule a guarantee by Muslim Commercial Bank limited was executed which was obtained by plaintiff 2 on the security of his immovable property. The allegation of the plaintiffs is that defendant Mujibur Rehman, however, out of mala fide intention obtained the agreement dated 28-8-1976 in the name of a fake partnership in firm known as Habib Ocean Industries" in order to promote his personal interest. Mujibur Rehman is alleged not to have disclosed to the plaintiffs that the aforesaid partnership firm comprised of totally unconcerned strangers qua the Trust who are his own family members. Mujibur Rehman consequently explained to the plaintiffs the reasons for adopting the said course of action and assured them that the final sale deed would be obtained in the name of the Trust or in the name of plaintiff 2. However, Mujibur Rehman went back upon his promise and was attempting to raise the claim to the ownership of Habib Ocean Industries with a view to exclude the Trust and obtain the sale deed in his own name and in the name of Habib Ocean Industries. Plaintiff 2 claims to have contributed the entire value of the property by raising funds by way of cash contributed by himself or by securing the Bank guarantee. The payments were allegedly made to Mujibur Rehman as per Schedule attached to the plaint and further it was alleged that substantial amounts have been paid out of the accounts of Khursheed Salt works to the tune of Rs, 6,71,904 for payment to the sellers. On the aforesaid allegations the plaintiffs have filed suit for declaration injunction and accounts against the defendants.
4. Defendant Mujibur Rehman and others repudiated the claim of the plaintiffs that the Salt works were purchased for or on behalf of the Trust and contended that the initial payment was made from the amount made available by defendant .8. They however admitted that the wife of the plaintiff 2 had deposited certain title deeds of property standing in her name as security with the Muslim Commercial Bank Limited in support of the guarantee furnished by the said Bank to the seller. Subsequently, according to their averment, the documents of title were returned by the Bank and the wife of plaintiff 2 was released from her undertaking with the Bank.
5. With the filing of plaint the plaintiffs sought interim relief to restrain the sellers from executing any conveyance deed in respect of the property in dispute in favour of Defendants 1 to 5 and also prayed for appointment of receiver. These 2 applications were disposed of by a consent order dated 5-10-1977 whereby inter alia defendants 1 to 5 were required to submit fortnightly statement of accounts of the income and expenditure of the business ; they were further not to obtain the title of the property or get the same transferred in their names from the sellers during the pendency of the suit they were not to transfer or assign or part with possession of the property without the permission of the Court except dealings in ordinary course of business as to the disposal of the Salt produced and a Commissioner was appointed to check the business's record, income and expenditure and supervise the working of the business. It seems persuant to the aforesaid order Mr. Nasir Aslam Zahid, Advocate who was appointed Commissioner inspected the premises of the concern and the accounts. In his report he pointed out that the entries were not complete in all respects and the Cash Book, Ledger and Journals for certain periods were not available as these Books and accounts were said to be in the custody of the accountant who was not present. The Commissioner also pointed . Out that certain other Books were yet incomplete and it was stated that they will be made available on a subsequent date.
6. Mr. Nasir Aslam Zahid then retired from the office as Commissioner at his own request and with the consent of parties Mr. Nasiruddin, Advocate was appointed as Commissioner who submitted 2 reports in which he expressed the opinion that : "I am therefore of the opinion that the expenditure on the construction and repairs of roads may be in the region of Rs, 6000 only during the period 16- 10-1977 to 15-11-1979. The expenditure shown in the Statement for repairs of relay, Troly, Channel and workshop are very much on the high side and 1 am of the opinion that these expenses could not be more than 1/4th of the amount shown in the Statement of the expenditure for the said period. Office equipment and miscellaneous expenses are very much exaggerated". The Commissioner also disbelieved the figures of expenditure on the items of renovation and structures, livestock, as well as unexplained withdrawal of an amount of Rs, 4,00,000 from the account of the concern. He also referred to the fact that Mujibur Rehman had been convicted by the Military Court on the allegation of evasion of Excise duty. In the concluding part of his report the Commissioner stated : "The control on the production and sale of Salt is very important work and since the present arrangements of maintaining the accounts are not satisfactory, it is not possible to say that the Excise permit which is for a truck to the city is not being used again and again for passing out trucks on the same Excise permit. I would, therefore, suggest for consideration of this hon'ble Court the appointment of a whole time receiver to supervise the production sale and stocks, income and expenditure and checking of the passage of trucks on valid Excise Permits".
7. The plaintiffs then made a fresh application for appointment of receiver alleging mismanagement and falsification of accounts on the part of defendants 1 to 5.
8. The learned Single Judge after considering the relevant matters and the record of the case allowed the prayer and by impugned order appointed official Assignee as the receiver. Defendant Mujibur Rehman and 3 other defendants being aggrieved with the order now seek to challange the order in this appeal.
9. We have heard Mr. Khalid Ishaque in support of the appeal. He mainly contended that the plaintiffs have no prima facie case of any title or interest in the property which is the subject- matter of dispute and therefore the order of receiver resulting in depriving the appellants of possession is not justified. In this behalf counsel referred us to the evidence of the plaintiffs led at the trial of which copies have been placed on record. He pointed out that Dr. Habibur Rehman Ellahi plaintiff No, 2 in his deposition has admitted that Habib Ocean Industries was never shown as the property of the Trust with the Income-tax Department and that an amount of Rs, 75,000 was shown in the returns as a loan from the Trust to Habib Ocean Industries. Reference was also made to an admission made by this witness that there was no resolution of the Trust authorising Mujibur Rehman to open account in the name of Habib Ocean Industries on behalf of the Trust. Further admittedly that nothing was mentioned in the minutes or any resolution of the Trust that a company by name Habib Ocean Industries had been formed and the Salt works in question were purchased. Counsel also referred to the evidence of the Chairman of the Trust Mr. Akhtar Hussain to the effect that no meeting of the Trustees discussed or decided to purchase the Salt Works. Also that this witness admitted that there was no recorded decision authorising Mujibur Rehman to negotiate and purchase the Salt Works for the Trust as far as he knew. We however notice that Dr. Habibur Rehman has prima facie supported the case of the Plaintiffs in the examination-in-chief and so has Mr. Akhtar Hussain. The evidence of the defendants is yet to be produced in the Suit and their witnesses will be subjected to cross-examination. The learned Single Judge disposed of the similar contention advanced before him in the following words "With regard to submission that plaintiffs have no prima facie case for title to the property it would suffice to say that the stage of arguing that plaintiffs have no prima facie case was when the order dated 5-10-1977, appointing the Commissioner was passed, for, if plaintiffs had no prima facie case there was no question of making any concession and agreeing to the appointment of a Commissioner on the terms mentioned in the consent order. At this stage no finding can be given as who purchased the works or who paid the sale consideration."
We are in full agreement with the view taken by the learned Single Judge and we may add that it will be improper to undertake a close scrutiny an assessment of the plaintiff's evidence at the trial for the purpose of deciding interlocutory question of receivership. It is well established that the Court is not required to enter the merits of the case in such matters. All that the party seeking such relief is required to establish is an arguable case to go to trial. We find that the learned Single Judge has carefully considered all the relevant matters and passed the order which is pre- eminently just and proper in the circumstances of the case.
10. It was also submitted by the learned counsel that there being no prayer for mesne profits in the Suit receiver of the property could not be appointed. We find no force in this submission as there is a prayer for rendition of accounts against defendant Mujibur Rehman and a prayer for decree of the amount found due from him, which sufficiently meets the objection. Additionally no such specific ground has been urged in the memo. Of appeal.
11. For all the aforesaid reasons we find no merit in this appeal and therefore dismiss it in limine.