Ch. Muhammad Masood Jahangir, J: In brevity, facts of the case were that respondent No.1 originally instituted suit only against respondent No.2 for declaration, cancellation of rent note and recovery of Rs.3,26,70,000/- along with permanent injunction. The suit was also accompanied by three applications; one for attachment of property, second with regard to grant of temporary injunction and third under Order XL rule 1 of the Code, 1908 for appointment of receiver till final decision of the suit. The present petitioners while claiming themselves to be the exclusive owners of the disputed property tabled application under Order I rule 10 of the Code ibid for their impleadment in the group of defendants. The learned Trial Court vide order dated 18.10.2018 while confirming their title added them in the group of defendants. No doubt, some chances were afforded to all the petitioners as well as defendant No.1 to submit their written statements and the reply of the aforenoted applications, but needful was not done. The learned Trial Court on 14.12.2008 while closing right of reply/defence on one side restrained the petitioners from further alienation of the disputed property and on the other hand appointed Mr. Anjum Nazir, Advocate as receiver to collect rent of the demised premises from tenant/respondent No.2. Despite being assailed before the learned District Court, it was maintained and to call in question the order with regard to appointment of receiver , this constitutional petition has been preferred.
2. It is contended by learned counsel for the petitioners that impugned orders have been illegally passed without adverting to the principles set for the appointment of a receiver . According to him, there was no prima facie evidence and the respondent/plaintif f had no nexus with the disputed property . He while adding that on one side the petitioners/ titleholders of the property were restrained from transferring the property , but on the other hand, through appointment of receiver they were deprived of their legitimate right to derive its fruits and especially when the respondent/plaintif f has already put forward claim for recovery of the specific amount, then there was no apprehension to cause any loss to him. In contra, learned counsel for the respondentNo.1/plaintif f while referring to certain documents emphasized that his client also invested funds for the purchase of property and there created partnership, as such nothing wrong was committed by the Courts below in appointing the receiver . He further emphasized that constitutional petition was not maintainable against interlocutory order and during its exercise as well concurrent findings of fact recorded by Courts of competent jurisdiction cannot be disturbed.
3. I have gone through the record of learned Trial Court as well as the detail of proceedings conducted before it with the assistance of learned counsel for the parties.
4. It is settled proposition till now that on the appointment of receiver by the Court, the property comes into the custody of the Court. The property passes into legal custody (custodia legis), as such main object behind appointment of receiver is to preserve the suit property and safeguard the interest of the true owner . No doubt receiver is appointed to receive and preserve the property or fund in litigation pendent lite when it does not seem reasonable to Court that either party should hold it or where a party is incompetent to do so, but the appointment is not be made to prejudice the case of either party in anyway. The discretion always rested with the Court to make such appointment or not, but it has to be exercised judiciously by following norms of justice, so as to protect the rights of the parties, whereas in case in hand, it is, indeed, shocking that learned Trial Court in first instance restrained the petitioners from creating charge of third party over the subject property and in second breath appointed the receiver, which is self-contradictory. Although learned Trial Court after considering some of the documents made available to it by the respondent No.1/plaintiff proceeded to appoint the receiver directing him to take over the affairs of suit property and to start collecting rent, but a bare perusal of impugned order would show that it omitted to consider the conditions laid down in this behalf. It has consistently been held that the remedy provided in term of Order XL rule 1 of the Code, by its very nature is onerous which is to be exercised providently.
This Court in judgment reported as Muhammad Usman vs. Muhammad Shahbaz and 7 others (2007 MLD 1121) has enumerated certain conditions for appointment of receiver, which for ready reference are reproduced as under:-
(i) A court is not to appoint a receiver except upon "proof" by the plaintif f that he has a prima facie chance of success in the suit; ii). The plaintif f himself show a case of adverse and conflicting claims to the property; iii). The plaintif f himself show some emergency or danger or loss demanding immediate action; iv). A receiver shall not be appointed where it has the effect of depriving a defendant of a de facto possession as it will definitely cause irreparable loss; and v). The conduct of the applicant is very much relevant. It has to be free from blame. but sorry to say that Courts below have not, at all, adverted to any of the said conditions, especially in the case where the plaintif f neither established the specific instances of alleged wastage, mismanagement, misappropriation nor there was any urgency demanding immediate action. In case where the application under Order XXXVIII rule 5 for the attachment of the property was attended to and injunction with regard to further alienation of the disputed property was also awarded, there was no scope for the Trial Court to appoint the receiver so as to oust the petitioners from use, command and control, particularly when the respondent/plaintiff had already assessed his reparable loss in terms of specific amount. The relief granted under Order XXXVIII rule 5 or Order XXXIX rule 1 & 2 bears a similar analogy to that of appointment of receiver, as such, both are essentially preventive in their nature, having common object in so far as these require to preserve the subject matter till the final disposal of the lis. It is well established by now that receiver has no independent title to the property, thus it was sine qua non for the Court to ensure the rights of owner of the subject property. The main principles upon which discretion provided by rule 1 of Order XL should be rested have been laid in cases cited as Lala Roshan Lal Vs. Ch. Muhammad Afzal (PLD 1949 Lahore 60) and Owen Vs. Homan (94 RR 516). In former case, his lordship, as he then was, held as under:- The receiver, if appointed in this case, must be appointed on the principle on which the Court of Chancery acts, of preserving property pending the litigation, which is to decide the right of the litigant parties. In such cases the Court must of necessity exercise a discretion as to whether it will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were in medio, in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is the common interest of all parties that the Court should prevent a scramble. Such is the case when a receiver of a property of a deceased person is appointed pending a litigation in the Ecclesiastical Court as to the right of probate or administration. (1) No one is in the actual lawful enjoyment of property so circumstanced, and no wrong can be done to anyone by taking it, and preserving it for the benefit of the successful litigant. But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. In all cases, therefore, where the Court interferes by appointing a receiver of property in the possession of the defendant before the title of the defendant is established by decree, it exercises a discretion to be governed by all the circumstances of the case.
It is matter of record that plaintif f/respondent No.1, earlier instituted suit for permanent injunction, which for want of evidence was dismissed. An eviction petition before the Rent Tribunal was preferred as well, but this too failed, who has also instituted another suit to claim that he was actual owner , whereas the petitioners were mere benamidar , which independently is still sub judice and until and unless it is proved, there would be no scope for the Courts below to put caution on the fruit/control of the legitimate owner . It is also confirmed by learned counsel for defendant No.1/tenant that he was inducted in the premises by the petitioners and possession of the same has already been returned to them, which fact could also not be controverted by the respondent/plaintif f. In such situation, had there been any chance for the appointment of receiver , which otherwise in the case in hand is not proved, has lost its force.
4. It is correct proposition of law that constitutional petition against interim orders passed by the Courts below is not maintainable, but it is not an absolute rule and case has to be dealt with keeping in view peculiar facts and circumstances. In the instant lis the Courts below on the face of it proceeded beyond the jurisdiction vested to them, which can be checked on having been noticed at this early stage to set the right path instead of waiting for final culmination of the lis. See Sh. Muhammad Siddiq Vs Khurram Gulraiz and 2 others (1998 MLD 624), Robina Yasmeen and others Vs. Rana Javed Iqbal and others (2011 CLC 1779) and Khurram Farooq Vs. Bank Al-Falah Limited and another (2018 CLD 1417). Though there are concurrent findings and this Court always exercises restraint while interfering with such conclusion especially in constitutional jurisdiction, but this by itself is not rule of thumb. Any illegality or perversity in the proceedings of the Courts below offending the rights of litigants neither can be protected nor perpetuated and this Court cannot shut its eyes only for the reasons that the unanimous orders were under challenge before it, despite being illegal. Reliance can be placed upon cases reported as Ayub Lambat (Advocate) Vs. Messrs Valika Properties (Pvt.) and another (2016 CLC (Notes)
109) and Mst. Hifsa Naseer Vs. A.D.J. Gujar Khan and 3 others (PLD 2017 Lahore 153).
5. For the reasons discussed above, the impugned orders to the extent of appoi ntment of receiver having been passed without reasoning and lawful authority are not liable to sustain, which are set aside by allowing instant constitutional petition.