Shujaat Ali Khan, J. Succinctly , the respondents-plaintif fs have filed a suit for declaration, rendition of accounts, recovery , permanent and mandatory injunction against the appellant and others. Alongwith the said suit, they also filed an application under Order XXXIX rule 1 & 2 CPC for grant of temporary injunction which was dismissed by the learned Civil Judge, Sialkot (learned Trial Court) vide order , dated 11.10.2021, against which they filed an appeal (FAO No.73598 of 2021) before this Court which too was dismissed vide judgment, dated 15.02.2022, with a direction to the learned trial Court to decide application of the respondents-plaintif fs, for appointment of receiver , within one month positively . The respo ndents-plaintif fs challenged the decision of this Court before Hon'ble Supreme Court of Pakistan by filing Civil Petition for Leave to Appeal, bearing No.625/2022, which was disposed of through order , dated 16.03.2022. Subsequently , pursuant to the direction issued by this Court, the learned Trial Court took up the matter and after hearing both the parties accepted the applic ation filed by the respondents- plaintif fs for appointment of receiver , vide order , dated 22.04.22; hence this appeal.
2. Learned counsel for the appellant submits that while deciding the earlier appeal, filed by the respondents, this Court observed in clear cut words that fate of clause 12 of the Partnership Deed would be decided after recording evidence of the parties but while passing the impugned order the learned Trial Court failed to consider that there was nothing on record to justify the appointment of receiver; that while deciding the application filed by the respondents-plaintif fs the learned Trial Court mainly relied upon e-mails meaning thereby that no original document was available before learned Trial Court at the time of passing the impugned order; that after dismissal of respondents' similar application in suit for possession etc., the application in the suit, subject matter of these proceedings, was not maintainable and that until and unless the Firm is dissolved its affairs are to be run by the appellant as per recitals of the Partnership Deed. Relies on Mobin Rafique and another v. Rashid Ahmed and 2 others (PLD 2012 Sindh 449) and Uzin Export Import Enterprises for Foreign Trade v. Messrs Asia Steel Industrial Aids Ltd. and 4 others (1986 MLD 1356).
3. While defending the impugned order passed by the learned Trial Court, learned counsel for the respondents- plaintiffs contends that since certain observations have been passed by Hon'ble Supreme Court of Pakistan, while dealing with CPLA filed by the respondents, it is appropriate that this case may be transferred to some other Bench. Adds that according to the law laid down in the case reported as Malik Muhammad Ishaque (Represented by his Legal Heirs) v. Messrs Erose Theatre and others (PLD 1977 SC 109), where partnership consists of two partners, in the event of death of a partner it automatically stands dissolved and the legal heirs of deceased partner become entitled for legacy left by their predecessor-in-interest; that inconsistent attitude of the appellant is manifest from the fact that on the one hand she herself has filed an application before the Registrar of Firms, Sialkot, inter-alia with the averments that the partnership, subject matter of the present proceedings, has already been dissolved but while filing instant appeal before this Court she has taken totally different stance that the Firm is still intact; that mala-fide on the part of the appellant is also manifest from the fact that she has got registered a new Firm to swallow the assets of the old Firm; that since application of the appellant for stay of proceedings of the suit, subject matter of this appeal, has already been dismissed, she has no cheeks to challenge the order passed by the learned Trial Court regarding appointment of receiver to manage affairs of the Firm; that since certain modifications were made by Hon'ble Supreme Court of Pakistan, the order passed by this Court cannot be referred by the appellant for her benefit and that Hon'ble Supreme Court of Pakistan refused to grant leave mainly for the reason that in the event of grant of leave, reasonable time was to be consumed before the Apex Court of the country and just to avoid delay of proceedings due to pendency of CPLA, the respondents contented with the order passed by Hon'ble Supreme Court of Pakistan. In support of his contentions, learned counsel has relied upon the cases reported as Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), Atif Mehmood Kiyani and another v. Messrs Sukh Chayn Private Limited, Royal Plaza, Blue Area, Islamabad and another (2021 SCM R 1446), Sh. Munir Ahmad v.
Muhammad Ismail and 2 others (1971 SCMR 666), Ali Mohamedbhai v. Sad Ruddin (PLD 1959 (W.P.) Karachi 452), Commissioner of Income-tax v. Seth Govindram Sugar Mills (AIR 1966 Supreme Court 24 (V 53 C 7) and M. S. V . Narayanan Chettiar v . M. S. M. Umayal Achi (AIR 1959 Madras 283 (V 46 C 88).
4. In exercise of her right of rebuttal, learned counsel representing the appellant contends that since there is hell of difference between clause 10 in the case of Malik Muhammad Ishaque (Represented by his Legal Heirs) (Supra) and clause 12 of the Partnership Deed, subject matter of these proceedings, the referred case is inapplicable inasmuch as in the referred case clause 10 was struck down mainly for the reason that deceased partner was survived by his children whereas in the instant matter the deceased partner being issueless, his case is at polls apart from the referred case; that the respondents themselves filed application for incorporation of their names in the partnership, thus, their assertion that the partnership has already been dissolved, is contrary to their own acts; that since order, dated 19.07.2021, passed by the learned Trial Court, dismissing application of the respondents for incorporation of their names in the partnership, has already attained finality, no contrary view can be formed by this Court and that since the original application is not available, the appellant disowns the contents of application purportedly filed by her before the Registrar of Firms, Sialkot.
5. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this appeal, as well as the case-law cited at the bar.
6. Firstly, taking up the request of learned counsel for the respondents-plaintiffs for transfer of this case to some other Bench in the light of decision of the Hon'ble Supreme Court of Pakistan, in the afore-referred Civil Petition for Leave to Appeal, I am of the view that a perusal of the order passed by the Hon'ble Supreme Court of Pakistan shows that no observation restraining this Bench to hear any subsequent matter has been passed justifying request of learned counsel for the respondents-plaintiffs. Moreover, according to the plaint, respondents No.1 & 2 (plaintiffs No.1 & 2 in the suit) are Overseas Pakistanis, thus, this appeal falls within the category of Overseas Cases and this Bench having specially been nominated to hear such cases cannot transfer this matter to any other Bench at the whims of a party without any justifiable reasons. Further, this Court, while discussing various judgments of Hon'ble Supreme Court of Pakistan, in the case of Mst. Tahira Kausar v. S.H.O. and others (2005 YLR 3046 ), clinched the issue under discussion by inter-alia observing as under: -
11. *It may be noted that to ask a Judge of a superior Court to transfer the case to another learned Bench and not to hear the same is a gravest type of contempt of Court, particularly when no cogent reason is advanced. If the learned counsel is not satisfied with the decision of this Court, he can approach the superior Courts. But the learned Advocate has got no absolute privilege. He cannot make submissions in a manner, not approved in the traditional nature of courtesy, which is due to the Court. PLD 1966 SC 94 (Rashid Murtaza Qureshi v. The State), Duty of lawyer is to uphold the prestige and honour of the Court and not to indulge in making statements, derogatory or insulting to the Presiding Officer. PLD 1961 Dacca 153 (The State v.
Delwar Hussain). Exposure has to be in a decorous and respectful language, PLD 1976 SC 713 (Hakim Qureshi, President, District Bar Association, Lahore and 2 others v, The Judges of the Lahore High Court through the Registrar and another). Lowering the authority of a Judge, interfering with administration of Justice, scandalizing the character of a Judge, quality of word and imputing improper motive are the instances of contempt. PLD 1971 SC 72 (In re: Arif Nizami and 2 others (In the matter of Contempt of the Supreme Court).
(emphasis provided)
If request of learned counsel for the respondents-plaintiffs is adjudged on the touchstone of the afore-referred judgment of this Court, the same does not hold any water, consequently, the same is hereby turned down.
7. Now reverting to the merits of the case, I have observed that the respondents-plaintiffs in their suit have impugned veracity of clause 12 of the Partnership Deed, dated 01.07.2016, meaning thereby that during subsistence of that clause the appellant, being the surviving partner, is dealing with affairs of the partnership as mandated by clause 12 ibid. There is no cavil with the proposition that when no contrary clause exists in the Partnership Deed, in the event of death of a partner, the partnership stands dissolved but when a specific clause has been incorporated in the Partnership Deed to the effect that even in the event of death of a partner the partnership would continue, until and unless the said clause is declared illegal by a court of competent jurisdiction, the same carries due weight and any act performed by the surviving partner is duly protected under the law. Reliance in this regard is placed on the cases reported as Muhammad Ashraf Khan v. Abdul Qadar and 3 others (1995 SCMR 296), Messrs Eastern Medical Technology Services v. Province of Punjab and others (PLD 2019 LHR 395) and Commissioner of Income-T ax v. Ganeshi Lal & Sons ( 2000 PTD 677 ).
8. A cursory glance over the impugned order shows that neither any emerging situation has been pointed out by the learned Trial Court regarding appointment of receiver nor any persuasive reasons for exercise of powers under Order XL CPC have been divulged in the impugned order. The Hon'ble Supreme Court of Azad Jammu and Kashmir, while highlighting the principles governing the appointment of receiver by the Court, in the case of Muhammad Hussain and 2 others v. Muhammad Asghar and 2 others (2004 MLD 1624 ) has inter-alia held as under:- "10. After close examination of Order XL, rule 1, C.P.C. And the case-law on the subject of appointment of receiver under the said provision of law, it appears that the object and purpose of 'the appointment of a receiver is preservation of the subject-matter of litigation pending adjudication of the rights of the parties thereto. This provision of law is to safeguard the interest of all parties as well as property which is the subject-matter of litigation. A plaintiff is under legal obligation to make out a prima facie case so as to persuade the Court to reach such conclusion. One who seeks appointment of receiver is required to satisfy the Court that the protection and preservation of subject-matter because of expected waste or peril to such property, right and interest of the plaintiff therein is necessary. A person who is found to be in possession of a property in his own right and title should not be lightly dispossessed unless some peculiar circumstances or instance of waste and damage to property is shown. The appointment of receiver by dispossessing a party is a very harsh action which should not be resorted to lightly unless a strong case of damage or waste to the property is made out. The receiver is a representative of the Court and not of either party to the litigation. The appointment of receiver is always made to protect the property for equal benefit of those who' are interested in its distribution and to keep the property within the control of the Court. This power available to a Court is exercised only when the petitioner establishes 'a special equity in his favour but where the title of a party in possession is established then certainly the petitioner for appointment of receiver cannot ask for such appointment. The appointment of receiver is made in exceptional cases and in the circumstance where the interest of the party seeking appointment of a receiver is exposed to manifest peril. The party seeking such appointment therefore, has to show emergency or danger or loss to the property demanding immediate action. The element of danger is an important consideration and the Court cannot act on possible danger only. The possession of a person bonafidely in occupation of the subject-matter should not be disturbed unless there is an allegation of waste, mismanagement of the property or apprehension of irreparable loss and injury. This power is sparingly used by the Court and, if the interest of any plaintiff can be protected by another means, the Court should abstain its hands to appoint a receiver under the aforesaid provision of law. Where a plaintiff failed to establish specific instances of alleged waste, mismanagement and misappropriation, the Court should refuse to appoint receiver under Order XL, rule 1, C.P.C. Reference may be had to (1992 CLC 2460, PLD 1977 Karachi 280 , PLD 1980 Karachi 1093, 1994 CLC 247 and 1993 CLC 605 ).
11. There is yet another aspect of the case that the learned trial Judge did not appoint receiver himself but directed the Tehsildar to appoint receiver of the property which is quite illegal. While appointing a receiver under Order XL, rule 1, C.P.C., the trial Court is under legal obligation to appoint a receiver himself by conferring upon him all such powers as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property alongwith collection of rents and profit thereof or any other powers as the Court thinks fit. Here in this case, all these legal requirements were violated therefore, the impugned order is not sustainable on this ground too."
If the legality of the impugned order is adjudged on the touchstone of the afore-quoted judgment there leaves no ambiguity the same has been passed in violation of the settled principles on the subject.
While going through the impugned order, I have noted that learned Trial Court despite observing at multiple places in the impugned order that the power to appoint a receiver is to be sparingly used by the courts of law, accepted the application filed by the respondents-plaintiffs while relying upon emails despite the fact that same could not be referred until and unless they were proved in terms of the provisions of Electronic Transactions Ordinance, 2002 read with Articles 46 A and 78-A of the Qanoon-e-Shahadat Order, 1984. The Apex Court of the country in the case of Ali Raza alias Peter and others v. The State and others (2019 SCMR 1982), while dealing with admissibility of material in evidence, prepared through electronic devices, has inter-alia observed as under:- "3.* Article 164 of the Order ibid invests the Court with wide powers to make use of evidence generated by modern devices and techniques; Articles 46-A and 78-A of the Order ibid as well as provisions of Electronic Transactions Ordinance (LI of 2002) have smoothened the procedure to receive such evidence, subject to restrictions/limitations provided therein. This Court has undertaken an exhaustive survey of jurisprudence on the subject in the case of Ishtiaq Ahmed Mirza and 2 others v. The Federation of Pakistan and others rendered on 23.8.2019 in Constitution Petitions Nos.10, 11 and 12 of 2019 and authoritatively settled parameters to receive forensic evidence through modern devices......" (emphasis provided)
9. Admittedly, till date the Issues have not yet been framed by learned Trial Court meaning thereby that no evidence has been led by the parties. In absence of any positive evidence to support that appointment of receiver was inevitable to safe the subject matter of the suit from immediate waste or peril, the application of the respondents- plaintiffs could not be accepted. It is very strange to note that learned Trial Court proceeded to appoint receiver on the application filed by the respondents-plaintiffs on the ground that business of Simon Sports Industries and New Simon Sports Industries is the same. The said approach of the learned Trial Court being alien to the established principles for appointment of receiver by a court of law cannot be approved of rather deserves to be deprecated.
11. It is relevant to note that if the learned Trial Court was of the view that the plea raised by the respondents- plaintiffs in their application for appointment of receiver had any substance, it could order for inquiry and if there had been any report to the effect that the subject matter of the suit was at the verge of waster or peril, it could appoint a receiver but the same could not be done on the basis of the apprehension of the respondents-plaintiffs. A learned Division Bench of Peshawar High Court, in the case of Latif-Ur-Rehman v. Haji Farmanullah (PLD 2014 Peshawar 1 ) while dealing with powers of the Court to appoint a receiver has inter-alia held as under: -
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.PC. 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 201 1 Karachi 151 ).
(v) Syed Anwar Adil Shah v . Syed Qamar-uz-Zaman ( PLD 201 1 Karachi 1 12)
(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 afore stated 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.
Similarly , the Hon'ble Sindh High Court in the case of Mst. Azra Parvez and 3 others v. Sheikh Ashfaq Hussain and 7 others (2015 CLC 1695 ), has beautifully dealt with the powers of the court to appoint a receiver in the following words: - "13. As regard the application of the plaintiffs, moved under Order XL, Rule 1, C.P.C. read with section 151, C.P.C., it would suffice to say that it is never the 'convenient' of a party to a lis to insist appointment of a 'receiver' but the requirement is that it should appear to the Court to be 'just' and 'convenient' before putting another person (receiver) by removing the one already in possession and control of the property, sought to be managed by receiver. The words 'just' and 'convenient' are required to be given their due weight because an order under this provision, though is interim in nature, yet is penal in its nature whereby one (person in possession) is removed from control and possession of such a property, therefore, such discretionary power are not to be exercised in routine but only in case(s) where it, prima facie, stood established that continuity of possession and control of property shall result in wastage or dissipation thereof resulting into irreparable loss/injury to party, seeking appointment of receiver. In the instant matter, it is not the case of the plaintiffs that there is apprehension of wastage of dissipation of property rather the manner in which the plaintiffs have claimed a right in property, shown in schedule-B, is sufficient to show that properties are being managed properly particularly when such property (shown in schedule-B) is claimed to have been from property, shown in Schedule-A. The defendants are also claiming the properties under certain legal title and claim of the plaintiffs is still to be interrogated and proved hence mere status of the plaintiffs as successors of Mst. Naseem is not sufficient to invoke the jurisdiction under Order XL, Rule 1, C.P.C. which, otherwise, has been held to be 'harshest one'. Thus, once it, prima facie, appears to the Court that there is no of property being wasted or dissipated then it is neither convenient nor just to remove the person from possession and control of property which he is already managing under legal title. Accordingly, the application of the plaintiffs, moved under Order XL, Rule 1, C.P.C., being devoid of substance stands dismissed.
14.....................................................................
15. In the end, I may add here that the application(s) under Order XL, R I or one moved under Order XXXVIII of the Code could only succeed where prima facie it is established on record to satisfaction of the Court that there is an apprehension of irreparable loss and injury to the interest of the party which they are likely to acquire at the end of the day through Judgment/decree of the Court as both these provisions are meant to protect future interest but where an application for grant of injunction in favour of plaintiffs fails the discretion under these two provisions cannot be exercised in favour of the plaintiffs for simple reason that 'question of irreparable loss/injury' was already in against of plaintiff which, otherwise, is a main ingredient to insist exercise of jurisdiction under these provisions."
If the fate of the impugned order is considered in the light of the principles, enunciated in the afore-referred judgments, it stands crystal clear that the same is bereft of the reasoning necessary for appointment of receiver.
12. During the course of arguments, learned counsel for the respondents-plaintiffs, while relying upon judgment of Hon'ble Supreme Court of Pakistan in case of Malik Muhammad Ishaque (Represented by his Legal Heirs) (Supra) argued that since rights and liabilities of the deceased partner devolved upon his legal heirs, no illegality has been committed by learned Trial Court while appointing receiver to protect the said rights. In this regard, I am of the view that the referred judgment deals with final adjudication by the court regarding termination of a partnership which is not the position in the case in hand as the question involved in this appeal revolves around appointment of receiver, hence, the said judgment cannot be relied upon at this stage.
13. Now coming to the plea of learned counsel for the respondents that since according to contents of the application filed by the appellant before the Registrar of Firms, Sialkot, the partnership has already been dissolved, I am of the view that firstly since the learned counsel representing the appellant has disowned the contents of the said application the same cannot be relied upon at this stage and secondly the respondents-plaintiffs would be at liberty to confront the said document to the appellant, during the course of evidence, thus, this Court is using maximum restraint to comment upon the contents of the said document lest it may prejudice the case of either party before the learned Trial Court.
14. It is important to mention over here that the learned counsel for the respondents failed to repel the contention of leaned counsel for the appellant that the order regarding dismissal of application of the respondents qua incorporation of their names as partners, having not been challenged any further has attained finality. Furthermore, partnership stands dissolved pursuant to an order passed by the relevant authority but despite addressing the court at length learned counsel for the respondents did not refer to any document to show that the partnership was dissolved as a result of order passed by the competent authority.
15. Now taking up the case-law , referred by learned counsel for the respondents, I am of the view that the same is inapplicable to the peculiar facts and circumstances of the present case inasmuch as in the case of Farhan Aslam and others (Supra) the Apex Court of the country held that legal heirs become entitled to inherit property out of the legacy of their predecessor according to their share soon after the death of the predecessor whereas in the case in hand the question in pith and substance revolves around the power of the learned Trial Court to appoint a receiver.
As far as case of Atif Mehmood Kiyani and another (Supra) is concerned, suffice it to note that question involved in the said case inter-alia revolved around section 10 of CPC whereas the order impugned in this appeal having been passed by the learned Trial Court regarding appointment of receiver in exercise of powers vested under section 94 read with Order XL CPC has not even the remotest connectivity. Now coming to the case of Sh. Munir Ahmad (Supra) I have observed that in the said case the contest was between the two partners whereas the respondents-plaintiffs, who are not partners, have filed suit being aggrieved of clause 12 of the Partnership Deed whereby the partners covenanted that partnership would continue even after death of a partner. So far as the case of Ali Mohamedbhai (Supra) is concerned, suffice it to note that in the said case the relevant party applied for appointment of receiver alongwith notice regarding dissolution of partnership whereas in the present case the respondents-plaintiffs have impugned clause 12 of the Partnership Deed before the Civil Court. Coming to the case of Commissioner of Income-tax (Supra) I am of the view that the question involved in the said case was as to whether in the event of death of a partner, the partnership consisting of two partners, could continue or not whereas the said question shall be decided by the learned Civil Court in view of the evidence to be adduced by the parties and at present it has nothing to do with the question relating to appointment of receiver. Similarly, in the case of and M. S. V. Narayanan Chettiar (Supra) it was held that right of legal heirs of a deceased partner for incorporation of their names as partners would survive even if there is any contrary clause in the Partnership Deed. Since the respondents-plaintiffs have already questioned the validity of clause 12 of the Partnership Deed, the said question shall be decided by the learned Trial Court at the time of final adjudication of the matter.
16. For what has been noted above, I have no hesitation to hold that the conditions sine-qua-non for appointment of receiver are missing in the case of respondents-plaintiffs. Consequently, instant appeal is accepted and impugned order, dated 22.04.2022, passed by the learned Trial Court, is set-aside . As a result, the application filed by the respondents-plaintiffs for appointment of receiver shall stand dismissed. No order as to costs.
17. Before parting with this order, it is directed that the learned Trial Court shall decide suit between the parties within the period fixed in judgment, dated 15.02.2022, passed by this Court in FAO No.73598/2021, without being influenced by any of the tentative observation(s) contained in this judgment.