' IKRAMULLAH KHAN, J.---The appellant and one another person, namely Jehanzeb, established thereof the business of Hajj Group Organizers and termed a Private Limited Company with the name and style of "Al-Sabi-ul-Kaba, Hajj and Umrah Service" (Pvt.) Limited, duly incorporated thereof under the Companies Ordinance, 1984 under a valid registration. No, 0054887.
2. A dispute arose thereof between the two shareholders of the company, in regard to the administration of the company, and as such the petitioner filed thereof an application C.C. No, 2 of 2011 under the provision of Companies Ordinance, 1984 contained thereunder section 290 in the Court of Company Judge, Peshawar High Court, Peshawar (Original Company Jurisdiction).
3. The dispute between both the partners of the company culminated thereof, into a compromise, whereby the Hon'ble Company Judge, Peshawar High Court. Peshawar dispose of the matter by its order dated 21-5-2012 whereof it was held that:-
(i) Jehanzeb the co-partner of the company will remain Chief Executive of the company for the current Hajj season 2012-2013.
(ii) From the next year 2013-2014, petitioner will become the Chief Executive for one year, and thereafter both the parties shall hold this position on alternate basis every year.
(iii) For current Hajj year, both the parties shall be entitled to receive application of 55 Hujjaj each which shall be processed by the company through the present Chief Executive, which formula shall continue in future for every year by the incumbent Chief Executive.
(iv) Both the parties, on return from Hajj expedition, shall distribute their respective profits accordingly.
(v) Upon return from Hajj journey, may also sit, settle and negotiate all other disputes including the issue of buying each other's shares holding amicably, it and when so decided by the competent Court.
4. The co-partner. Jehanzeb, after some time, filed thereof an application under section 12(2), C.P.C.
Against the order dated 21-5-2012, passed by the Hon'ble Company Judge, Peshawar High Court, Peshawar.
5. The Hon'ble Company Judge, vide its order dated 1-10-2012 dismissed, the afore stated application filed by one Jehanzeb under section 12(2), C.P.C.
6. The share holder of the company, Mr. Jehanzeb instead of filling an appeal in this regard, under the provision of the Companies Ordinance 1984. Instituted thereof, a Civil Suit No, 86/1 of 2012, in the Court of Senior Civil Judge/Alla Alaqa Qazi. District Dir (Lower), and prayed thereof, that he was the sole owner of the afore stated company.
7. The record is silent further over the fate of the aforestated suit, however, the last order sheet of the learned, Civil Judge, dated 31-5-2012 reveals that the case was adjourned for submission of list of witnesses.
8. In the meanwhile, the respondent Haji Farmanullah on 7-6-2012 instituted thereof a Civil Suit No, 118 of 2012 in the Court of learned SCJ, Peshawar against the petitioner whereby it was claimed by the respondent, that he had purchased the 50% shares of the petitioner in the aforestated company and succeeded thereof, in ex parte decree dated 30-6-2012 against the petitioner.
9. The petitioner, on 25-10-2012 filed thereof, in the Court of the learned Civil Judge-XI, Peshawar an application under the provision of section 12(2), C.P.C., with the prayer, that the impugned decree/ judgment dated 30-6-2012, may be set aside being procured through misrepresentation, fraud, and had passed without jurisdiction.
10. During the course of proceeding under section 12(2), C.P.C. Thereof before the learned Civil Judge-X1, Peshawar, the respondent preferred thereof an application dated 29-3-2013 for grant of "status quo" praying thereof, that petitioner may be restrained thereof to use the name of the company or to process any Hajj forms on behalf of the afore stated company.
11. Another application dated 18-5-2013, for appointment and receiver thereof, for the purpose of collection of money from interested persons in performance of Hajj and the requisite forms from the Hajj Directorate in this regard.
12. Both the applications were decided thereof by the learned Civil Judge, Peshawar through its consolidated impugned judgment, dated 3-6-2012, whereof, the learned Civil Judge, appointed the co-sharer holder/co-partner Mr. Jehanzeh as receiver in terms of as under:- "In order to avoid further complications and multiplicity of litigation, it would be in the interest of justice that the impugned Hajj Facility Quota, be also looked after by the other partner, namely Jehanzeb, during the current Hajj Season, least the same could be lapsed, in the capacity of receiver under the active collaboration and support of the Director Hajj, Peshawar, and to submit the complete returns, in the Court, which, after the logical conclusion of the instant bone of contention, between the parties, would be awarded to the party having entitlement to it, in accordance with law".
13. Another Civil Suit bearing No, 44/1 of 2013, instituted thereof, by the petitioner under section 39 of the Specific Relief Act in the Court of Senior Civil Judge. District Dir (Lower), on 27-4-2013, against the respondent and one another person lhtisham ul Haq in regard to cancellation of the deed dated 2-5-2012, subject matter of the decree passed on 30-6-2012 by the learned Civil Judge, Peshawar.
14. Mr. Jehanzeb the appointed receiver vide the impugned judgment dated 3-6-2013, on 31-1-2013 preferred thereof an application, before the Hon'ble Company Judge, Peshawar High Court, Peshawar, under the provision of the Companies Ordinance 1984 prayed thereof, that he be allowed to operate and open a separate bank account in regard to his 50% shares thereof in the company.
15. The respondent also approached the Hon'ble Company Judge, Peshawar High Court, Peshawar under section 12(2), C.P.C. In C.C. No,2 of 2011, with the prayer that judgment in C.C. No,2 of 2011 dated 21-5-2012 may be recalled, being obtained by petitioner on the ground of misrepresentation, as petitioner is not more shareholder in the company and he had sold all his equity to respondent.
16. The Hon'ble Company Judge, Peshawar High Court, Peshawar, in connection of the above mentioned two application C.M. No,3 of 2013 and C.Ms Nos. 8 and 9 of 2013 respectively, gave notices to respondents Nos. 5 and 6 (therein C.M. No, 8). While the petitioner as stated therein, was present in Court, was put on notice on 6-5-2013.
17. The learned counsel for the petitioner, vehemently argued herein, and contended that the impugned order/judgment dated 3-6-2013, is rendered thereof by the learned Civil Judge, Peshawar is without jurisdiction, passed by unlawful authority, coram non judice, for the sole reason, that the learned Court could not made the appointment of a receiver, as it was the job of executing Court; that the learned Civil Judge, Peshawar. Appointed a person, as a receiver, who is already under litigation with the petitioner, while the civil Court has got no jurisdiction, to annull the judgment of the Hon'ble Company Bench, Peshawar High Court, Peshawar, whereby the petitioner has already declared as Chief Executive of the company for the year 2013-2014; that petitioner permanently resides and carries business thereof in District Dir, which fact is itself un-rebutted one as the address of the petitioner even in the heading of the suit scribed thereof is District Dir; that the deed dated 2-5-2012 on the strength of which, the respondent succeeded in ex parte decree against the petitioner had the result of fraud, misrepresentation and wrote thereof with mala fide intention of the respondent is without consideration, and not executable.
18. On the other hand, the learned counsel for the respondent, contended thereof, that as the respondent has in possession and hold a valid decree against the petitioner, which has not been so far set aside by any competent Court of law and still hold field as such respondent could not be deprived of its fruit on move filing of an application under section 12(2), C.P.C. 1908, instead of filling an application under order IX, C.P.C. 1908 for setting aside the impugned decree. He supported the impugned judgment in this regard.
19. We scrupulously, scrutinized and carefully perused the record of the case and anxious consideration was given to the arguments delivered thereof by both the learned counsel for both the parties before us.
20. The facts of the case as stated above are little bit made complicated by both the parties and those who are not before us in the present round of litigation, however, in strive of to arrive to a just and fair conclusion, for the safe administration of justice, the whole facts, from first to last, incidents occurred thereof were fully described hereinabove.
21. We also restrain ourselves, to dilate upon, the different aspect as stated above of the case, as it would prejudice-either party litigating against each other under different jurisdiction in regard to the same bone of contention therefore, confine .Ourselves to the fact in issue, in legal parlance, that whether the learned Civil Judge, Peshawar was in his legal jurisdiction to render the impugned judgment.
22. Admittedly, the learned Civil Judge, seized of the matter, in connection of, proceeding under section 12(2),
23. The provision of Civil Procedure Code, 1908, contained there under subsection (2) of section 12 envisaged as:-- "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit".
24. It is by now settled law, that an application under section 12(2), C.P.C. 1908 may be treated as a suit, once such application is admitted for full hearing and when not dismissed summarily in accordance with the prevailing facts and circumstances of the case, then the impugned decree loses its effectiveness or status.
25. The civil Court, seized of the matter, thereafter has to decide each and every intermediary or interlocutory matter arising out of or ancillary thereto the main subject matter under litigation, according to the established principle of justice. Keeping in view all the ground, raised therein the application filed under section 12(2) C.P.C. 1908, and the version of the decree holder, raised thereof, in his pleadings.
26. The civil Court has been invested with the jurisdiction in matter of appointment of receiver under the provision of C.P.C. 1908, contained there under Order XL.
27. Rule I of Order XL, C.P.C. 1908 in very explicit manner, empower the Court as envisaged there under as:-- "Appointment of receiver.--(1) Where it appears to the Court to be just and convenient, the Court may by order...
(a) Appoint a receiver of any property, whether before or after decree;
(b) Remove any person from the possession of custody of the property;
(c) Commit the same to the possession, custody or management of the receiver; and
(d) Confer upon the receiver all such powers, as to brining and defending suits and for the realization, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.
(2) Nothing in this rule shall authorize the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove.
28. In the matter of appointment of receiver, a heavy responsibility thereof cast upon the Court, not to treat such matter in a cursory and simple manner but to apply his responsible judicial mind to the facts and circumstances of the case, as any irresponsible or slight omission in this regard would cause a great irreparable loss to a party, before him in hope of justice.
29. The Hon'ble Courts have framed and enunciated golden principles in this regard for guidance of judicial officers thereof, in order to block any possible injustice may cause to a party to the lis in this regard.
30. The-judicial officer, exercising jurisdiction under the provision of Rule I of Order XL, C.P.C. 1908 may take guidance from the following judgments as;-
(i) Mst. Saeeda Khatoon v. Haji Zangi Khan and others (2009 YLR 175).
(ii) Sahib Khan v. Muhammad Ramzan and another (2000 MLD 729).
(iii) Muhammad Hussain v. Muhammad Asghar (2004 MLD 1624).
(iv) Asadullah Mir Bahar v. Mrs. Ayesha Muzahir and 9 others (PLD 2011 Karachi 151).
(v) Syed Anwar Adil Shah v. Syed Qamar-uz-Zaman (PLD 2011 Karachi 112)
(vi) Muhammad Siddique v. Muhammad Latif (1997 MLD 181).
31. The main theme of Order XL, C.P.C. 1908 in the appointment of receiver, and the principle enunciated in this regard by the Hon'ble Courts of this country and the judgments cited hereinabove postulates that the appointment of receiver as has been recognized as one of the harshest remedy allowable under the code and it is allowed only in a very exceptional cases. The main object is to safeguard the interest of all parties and property thereof under litigation. The party interested in and 'desirous thereof in the appointment of receiver has to make out a prima facie case.
32. The principles laid down by the superior Courts in this regard, as cited thereof in the judgments aforestated are that exercise of jurisdiction under order XL of C.P.C. 1908, in appointment of receiver would be sparingly used and it would be exercised for the safeguard of the interest of all the parties thereto before the Court and the property involved thereof.
33. The bona fide possession over the property of a party to the lis would not be disturbed unless there are allegations of wastage or dissipation of property or apprehension of irreparable loss or injury either to a party or the property in question.
34. In case in hand, without embarking upon the merit of the impugned decree dated 30-6-2012, passed thereof by the learned Civil Judge, Peshawar, it was admitted position of the case, which could easily be even gathered from the facts raised thereof, in the pleading of the Suit No,118 of 2012, instituted thereof by the respondent, the petitioner was a shareholder of the company, well described in Para "I" of the plaint thereof, then apparently question of jurisdiction was floating on the surface of the record in regard to the provisions of the Companies Ordinance 1984 read with the provision of Order XXV of C.P.C. 1908 in this regard, the respondent was well aware of the facts and also had applied for their remedy before the Hon'ble Company Bench, Peshawar High Court, Peshawar filing thereof C.M. No, 8 of 2013 in C.C. No,2 of 2012, which is still subjudice before the Hon'ble Judge.
35. The share-holders are in dispute with each other in respect of the shares in the company thereof The respondent, allegedly purchased shares of the company, by implication of law is treated a co-partner, share- holder or stake holder, then in such a case too, there arises, volumes of lack of jurisdiction of civil Court.
36. A competent Court of law, the Hon'ble Company Judge, Peshawar High Court, Peshawar vide its judgment dated 21-5-2012 passed in C.C. No,2 of 2011 has framed very explicit condition in order to entrust the administerial power of Chief Executive upon the petitioner for the year 2013-2014. And the person who has been appointed receiver by the learned Civil Judge, Peshawar, has already litigated thereof and not succeeded to acquire the Chief Executive slot of the company, but the learned Civil Judge, Peshawar, impliedly annulled the judgment of the Hon'ble Company Judge in this regard.
37. Receiver, may be appointed for immovable property being in danger of alienation, damaged or wastage, but in matter of a company, appointment of an inspector is requirement of law under the provisions G of the Companies Ordinance, 1984, in case of gross allegation of mismanagement, fraud, wastage or loss to the companies property.
38. In the present circumstances, the learned Civil Judge has not appointed a receiver for the purpose of administration, management or look-after the affairs of the company thereof but have benefited a partner, of the company to deal with the Directorate of the Hajj in matter of Hajj forms, which is against the established principle of justice and law in this regard.
39. The respondent, never applied thereof for the execution of the impugned decree, nor any Court has passed any restraining order in this respect.
40. The matter pertains to movable property, and there is no apprehension of irreparable loss as the matter pertains to fiscal one, and as such, no grounds exist thereto, for the appointment of receiver thereof in the proceeding under section 12(2), C.P.C., 1908. The application, filed thereof for appointment of receiver by the respondent never disclosed thereof, any ground which necessitated the appointment of receiver, no irreparable loss is expected as the matter pertains to monetary dealings, which was the only ground enumerated thereof by the respondent in his application.
41. It is settled principle of law for the purpose of Order XL Rule 1, C.P.C, 1908 that a party seeking appointment of a receiver, over the property involved 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 great risk and danger of getting destroyed at the hands of other party, so as the same likely to cause irreparable loss, but in present case no such property is subject matter of the suit, which would likely to be either destroyed, damaged or alienated as the receiver is appointed to collect Hajj forms from the Hajj Directorate and in return to collect the money from expected Hujjaj Karam, clearly manifest that no receiver is appointed for management and administration of the company, but only deprived a person from his legal performance of his business thereof, and, as such the impugned judgment does not cover the status of sanctity.
42. The learned Court, also failed to follow Rule 3 of Order XL C.P.C. 1908 and in this regard no security has been ordered thereof to be obtained from the receiver appointed thereof, which itself rendered the impugned judgment illegal and without jurisdiction, not based on fair determination of principle of justice in this regard.
43. Keeping in view the reasons given hereinabove, we allow instant appeal and accordingly set aside the impugned judgment dated 3-6-2013. With these observation parties are relegated to their previous position as it was before the passing of the impugned judgment in hand.