MUHAMMAD SAJID MEHMOOD SETHI, J.---Through this single judgment, I propose to decide the instant civil revision along with following two civil revisions and a writ petition, as the common questions of law and facts are involved in all these cases: i. C.R. No, 1175 of 2014 titled Makhdoom Syed Ghulam Samdani Shah v. Syed Altaf Hussain Shah etc. Ii. C.R. No, 1368 of 2014 titled Syed Altaf Hussain Gillani etc. v. Ghulam Muhammad, etc. iii. W.P. No, 14770 of 2014 titled Makhdoom Syed Ghulam Samdani v. District Police Officer, Khanewal etc.
2. Brief facts for disposal of above cases are that the petitioners, Syed Altaf Hussain Gillani etc., filed a suit for declaration in the court of learned Civil Judge, Mianchanu, against the respondents, Ghulam Muhammad etc., on 15.10.2010, accompanied by an application for grant of temporary injunction. The respondents appeared before the Court and filed written statement as well as written reply to the application. Thereafter, the petitioners filed an application for appointment of receiver on 08.11.2010. The reply to the said application was filed by the respondents. The learned trial Court, after hearing the arguments, accepted the said application vide order dated 29.06.2011, the relevant portion of which reads as under:-- "Order XL of the Civil Procedure Code empowers the Court to appoint Receiver where it appears to be just and convenient. The appointment of a receiver is in the discretion of the Court. The discretion should be sparingly exercised and only for safeguarding the interests of all the parties as well as the property, therefore, Ch. Muhammad Akram Advocate, is appointed as Receiver for the realization, management, protection, preservation and improvement of Darbar Hazrat Shah Habib and property of said Darbar Sharif, situated in Mauza Bagdad Sharif, Tulamba, Tehsil Mianchannu, District Khanewal. The learned appointed Receiver shall submit his report after taking over the possession of aforesaid Darbar along with its located property on or before 7.7.2011. The learned Receiver shall be duty bound to submit his report on each and every month regarding the collection of income of the Darbar and its located property."
3. Being aggrieved therefrom, the respondents preferred an appeal in the court of Additional District Judge, Mianchanu, which was accepted vide judgment dated 27.07.2011. Through instant civil revision (C.R.No,828/2011), the judgment dated 27.07.2011 passed by learned Additional District Judge, Mianchanu, has been assailed.
4. Subsequently, the respondents have also filed miscellaneous applications before the learned trial Court for recalling the order of change of administration of Darbar which was entrusted to Auqaf Department by appointing them as receiver and then order of appointment of Syed Iqbal Hussain Jaffari, Advocate as receiver, while declining to handover the said management to Syed Ghulam Samdani respondent No,5 in C. R. No, 1368 of 2014. Thus, both the above-noted revision petitions (C.R. No,1175/2014 and C.R. No,1368/ 2014) arose out of the dismissal of the said applications by the learned Courts below. Makhdoom Syed Ghulam Samdani also filed the above- noted writ petition (W.P. No,14770/14) against D.P.O., Khanewal and others, praying that they be directed to act strictly in accordance with law and not to cause illegal harassment to the petitioner.
5. Learned counsel for the petitioners of instant civil revision submits that the report of the receiver is sufficient to postulate that the respondents have made the income of the shrine as their personal asset and are using the same for their own benefits, and it is also evident from the report that they are involved in misappropriation of the amount collected in the collection box.
6. On, the other hand, learned counsel for the respondents submits that the impugned order has been passed in accordance with the provisions of law and that the petitioners have failed to point out any illegality or legal infirmity in the impugned order, thus the same is liable to be upheld.
7. Arguments of learned counsel for the parties have been heard and record perused.
8. The law is well-settled on the question of appointment of receiver, that a Civil Court has got jurisdiction to appoint receiver of the suit property, in order to protect and preserve the same, pending judicial determination, however, such discretion has to be exercised judiciously by following the norms of the law to protect the rights of the citizens. The party seeking relief of the appointment of receiver is under a legal obligation to make out a prima facie case and establish his prima facie title to the suit property. Such party has also to show that the suit property would be wasted, misappropriated and destroyed if the receiver is not appointed. Even apprehension of mismanagement or misappropriation alone would not be sufficient to call for appointment of a receiver. It is also a well settled proposition, of law that appointment of receiver is the harshest remedy provided under the law of C.P.C., which would tantamount to dispossessing a person, who is already in possession of the said property, therefore, it is to be used sparingly. Reference in this regard can be made to the following judgments:-- i. Media Max (Pvt) Ltd. Through Chief Executive v. ARY Communication Pvt. Ltd. Through Chief Executive and another (PLD 2013 Sindh 555) ii. Naseem-ul-Haq through Attorney and another v. Raes Aftab All Lashari through Guardian ad- litem and 5 others (2015 YLR 550) iii. Mobin Rafique and another v. Rashid Ahmed and 2 others (PLD 2012 Sindh 449) iv. Syed Anwar Adil Shah v. Syed Qamar-uz-Zaman Shah (PLD 2011 Karachi 112) v. Mst. Saeeda Khatoon v. Haji zangi Khan and others (2009 YLR 175) vi. Jamil ur Rehman v. Anisur Rehman (2009 MLD 1082). vii. M. Ataur Rehman Alvi v. Inamur Rahman (1974 SCMR 54)
' In the case of Media Max (Pvt.) Ltd. Supra, the Division Bench of Hon'ble Sindh High Court has held as under: "33. The object and purpose of the appointment of Receiver may generally be stated to be the preservation of the subject matter of the litigation pending judicial determination of the rights of the parties. Appointment of Receiver is an act of the court and made in the interest of justice. The words "just and convenient" do not mean that the court is to appoint Receiver simply because the court thinks it convenient. The order is discretionary and the discretion must be exercised in accordance with the principles on which judicial discretion is exercised. The terms just and convenient' used in the rule does not mean arbitrary whim or pleasure of the court. Appointment of Receiver deprives a person from enjoyment of the property, and therefore, it has been regarded as harsh remedy. The distinction between a case in which temporary injunction may be granted and a case in which a Receiver may be appointed is that while in either case it must be shown that property should be preserved from waste and alienation. In the former case it is sufficient that if it be shown that the plaintiff in the suit has a fair question to raise as to the existence of the right alleged while in the latter case a good prima facie title to the property over which the receiver is sought to be appointed as to be made out. A receiver cannot be appointed unless there is some substantial background for such interference that the property in suit dissipated or other irreparable mischief may be done, unless the court appoints a Receiver."
' In Mobin Rafique's case supra, Hon'ble Sindh High Court has discussed the situations and occasions when appointment of receiver is inevitable. Relevant portion of the said judgment is reproduced below:--
20. Before I give my findings with regard to disposal of such applications, I would like to discuss the situations and occasions when the grant of such relief is inevitable. Such situations include:
(i) when it is just and convenient;
(ii) when it is essential to safeguard the interest of parties as well as the property which is the subject matter of the litigation (iii) when the property is in danger of being wasted or dissipated;
(iv) where the partnership is dissolved and it is inevitable to determine and decide the rights of the partners to profits and accounts which are not known; (v) when it is just and equitable that the preservation of such property is to be maintained and (vi) Evidence has been placed on record to show strong apprehension of peril to property."
9. In the instant case, the petitioners have neither been able to make out a prima facie case of imminent risk of misappropriation, waste and destruction of the suit property nor have they prima facie established their title to the suit property. In the case of M. Ataur Rehman Alvi supra, Hon'ble Supreme Court has held as under:-- ' "It is sufficient to point out that in the circumstances mentioned, the plaintiff was clearly not entitled to either of the prayers made by him in the High Court as none of the properties stood in his name. His title to the properties was disputed and, therefore, until the dispute was decided he could not ask for a receiver to be appointed and the person bona fide in possession deprived of the properties."
The power of the Court under Order XL, Rule 1, .C.P.C. Could only be exercised when Court comes to the conclusion, on the basis of the material placed before it, that it is just and convenient to appoint the receiver to preserve and protect the property during the pendency of litigation between the parties. The words "just and convenient" used in the Order XL, Rule 1, C.P.C. Have to be interpreted depending upon the facts of each case. These words denote convenience of the party and not that of the Court. In the instant case the property in dispute is, admittedly, in possession of the respondents, therefore, it would not be just and convenient to dispossess them from the property on the ground of some unfounded, unproven facts and mainly on the basis of some vague allegations. No mate al has been brought on record by the petitioners to prove the allegations leveled by them to substantiate their averments.
10. Learned appellate Court has noted in the impugned judgment that the petitioners failed to provide any document showing their possession over the suit property, while the record indicates that the respondents were in possession of the suit property and the petitioners have themselves admitted that the respondents were administrating the shrine being "Mutwalli" under the condition No,8 of Wajab-ul-Arz and under the customs. It is also evident from the record that earlier suit for declaration filed by the petitioners regarding the same subject had been dismissed on merit. They also failed to D show any emergency and loss demanding immediate action and the overall conduct of the petitioners is not free from blame, which are the conditions for appointment of receiver. The said findings of learned appellate Court are in conformity with the law laid down by the Hon'ble superior Courts.
11. It is well-established that before seeking an order from a Court of law, the person has to prima facie establish his case on the basis of material adduced by him and the Court has to pass orders on the basis of material available on record and he cannot be allowed to fish out evidence after filing of such applications. Learned counsel for the petitioners has made reference to the report of the receiver and argued that the said report indicates that the respondents are involved in misappropriation of funds of the shrine which were to be utilized for the benefit of its beneficiaries.
Suffice to say that the report was procured after the appointment of receiver and validity of the said report had yet to be determined by the learned trial Court after providing an opportunity of hearing to the respondents. Admittedly, there was no evidence available with the petitioners at the time of filing of application for appointment of receiver, nor any evidence has been referred to in the order dated 29.06.2011 passed by the learned trial Court. In the case of Mst. Saeeda Khatoon supra, it has been held that for the purpose of Order XL, Rule 1, C.P.C., 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 a great risk and danger of getting destroyed at the hands of the other party, so as the same is likely to cause irreparable 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.
12. In view of the aforesaid, the instant civil revision (C.R.No,828/2011), being devoid of any merit, is hereby dismissed and connected revision petitions (C.R. No,1175/2011 and C.R.No,1368/ 2011) are disposed of as having become infrastructure in view of the dismissal of the instant revision petition.
The writ petition (W.P. No,14770/2011) is also disposed of with the direction to the respondents to act within the bounds of law and not to cause illegal harassment to the petitioner. No order as to costs.