1. ' The plaintiff has filed this application under Order XL, rule 1, C. P. C. For appointment of receiver of the business of Salateen Hotel. Briefly the facts are that by a licence dated 1st August, 1973 allowed to the defendants Nos. 2 to 4 to manage. And run the business of residential Hotel Salateen for a period of 5 yeaRs, On 9th September, 1975 a supplementary agreement was executed and the period of licence was extended for further 5 yeaRs, Again by an agreement dated 1st March, 1976 the period of licence was extended to 25 years from this date and the defendants agreed to instal a lift and construct rooms on the 5th and 6th floor of the existing building and to construct additional rooms at their option on the 6th floor and back portion at their own cost. In view of the huge cost which the defendants had undertaken the period of licence was extended to 25 yeaRs, Under this agreement the defendants were to construct the rooms on the 5th floor and install a lift within a period of 3 years from the date of the agreement at their own cost and time was to be the essence of the contract. It was provided that the breach of the terms of this agreement and the terms contained in agreement dated 1st August, 1973, would entitle the plaintiff to cancel the agreement and enter upon the property and take possession of the business. The plaintiff has alleged that the defendants subsequently committed breach of the terms and conditions and therefore a notice was served on them on 19th October, 1978 -and cancelling the agreement calling upon them to vacate and hand over possession of the entire business with all assets to the plaintiff on expiry of 1 month from the date of service of notice. The defendant failed to do so. It is alleged that the defendant has mismanaged and damaged the property goodwill and assets. It has further been alleged that the defendants have made unauthorised construction on the top floor of the building without any lawful authority and in breach of the regulation. The plaintiff therefore filed the suit for possession and accounts.
2. ' Mr. A. A. Fazeel the learned counsel for the plaintiff has Contended that the construction on the 5th floor was to be according to the approved plan provided by the plaintiff. It has been contended that the construction has not been made according to the approved plan and consequently K. M.
3. C. And Karachi Building Control Authority have issued notices to the defendants and the plaintiff. It has also been alleged that the nature of construction is poor. The second contention is that half of the ground floor has been converted into kitchen by making unauthorised alterations and lastly it has been contended that on the third floor the partition wall between the two rooms has been removed and it has been converted into a lounge and all these unauthorised and illegal acts amount to wastage and damage to the property.
4. ' So far the construction on the 5th floor is concerned the defendants have disputed that it is unauthorised. Certain notices have been brought on record to show that the building control Authority has taken action against the parties but the defendants have alleged that these .Actions were got initiated by the plaintiffs in collusion with the relevant authorities.
5. ' The defendants have also contended that necessary action has been taken by them and K.D.A.
6. Has suspended the order of demolition it, therefore seems that the relevant authorities have so far not taken any positive action in the matter. As regards the nature of construction both the parties have filed certificates of the architects which are of conflicting nature.
7. ' So far as the conversion of ground floor into a kitchen and constructing of a lounge on the 3rd floor is concerned the defendants have contended that it has not in any manner diminished the value and utility of the building nor it has damaged it. The defendants have pointed out to an appeal filed by the plaintiff on 21st May, 1980 before the Controller under section 25 of Pakistan Hotels and Restaurant Act, 1976. It has been stated, in this appeal, that recently improvements have been made in the hotel to provide maximum facilities to the guests. Amongst the amenities provided it is stated that there is a well furnished lounge with comfortable sofa set arrangement for 20 persons at a time where T V set is available. It has been stated that there are 52 rooms with comfortable beds and all other facilities. 'Besides this there are other amenities which have been categorised in this appeal and it has finally been prayed that the Hotel may be classified as two Star Hotel. It therefore seems clear that on 27th May, 1980 when this appeal was filed the plaintiff was considering the hotel to be properly maintained and run and deserved classification under 2 Star Hotels. No objection was taken to the lounge. In fact it was described as a qualification. It has also been admitted that the defendants have at their own cost installed a lift in terms of the agreement. Taking all these facts into consideration and as these controversies including the question effect of raising unauthorised construction is to be decided at the time of final hearing it will not be proper to decide it now and give any verdict on it because it will amount to entering upon the merits. In reply to the plaintiff's allegation suffice to say that the defendants have been prima facia able to meet it. I do not think it proper that in the face of allegations and counter allegation where the parties are equally poised it would be in the interest of justice to dispossess the defendants at this stage and appoint a receiver. However, to protect the interest of the plaintiff in case the suit is finally decreed. I order that the defendants should submit monthly statement of account of the expenses and income with the Nazir. The defendant should first file a consolidated statement of accounts commencing from 1st January, 1979 till 31st May, 1982 on or before 15th July.
8. Thereafter they shall continue to file statement of account every month on or before the 15th day of the following month till the final disposal of the suit. With this observation the application is dismissed.