' The instant Revision Application was admitted on 29-11-1981.
2. A suit for possession and injunction was filed before Senior Civil Judge at Hyderabad in which the plaintiff was Subhanallah Hotel and the defendants were (I) Riaz Hussain, (2) lqbal Hussain and (3)
Haji Ramzan. An application for appointment of a receiver was rejected by the Senior Civil Judge on 23-4-1981 but instead he sealed the hotel and prepared the inventory of the articles and other paraphernalia. Against this order there was an appeal filed before the 1st Additional District Judge, Hyderabad who also refused to appoint a receiver but the premises i,e, hotel was desealed and its possession was handed over to the party who was in possession at the time of sealing the premises. Aggrieved by that order present Revision Application is filed. The facts recited in the memo. Of the Revision Application are that the predecessor-in-interest of respondents Nos. 3 to 8 namely Haji Muhammad Ramzan by a registered deed leased the premises which consisted of a plot with dilapidated structures thereon measuring about 5,000 sq. Ft. Bearing No, F/66-1139 situated at Station Road, Hyderabad for 15 years and the lease deed was dated 17-1-1963. The applicant was permitted to build thereon and commence business of a hotel or restaurant. The agreed monthly rent was Rs, 500 and in advance Rs, 12,000 were paid as rent to the said predecessor-in-interest of the respondents Nos. 3 to 8. Applicant on his costs constructed a building on the said plot and commenced the business of a hotel/restaurant. Then the applicant gave the said concern of hotel as a going and running concern together with all the furniture, fittings, fixtures, utensils, crockery, cutlery and other paraphernalia on contract to the respondent No, 1 namely one Riaz Hussain son of Allah Rakha. This agreement was executed on 1-5-1974 for eleven months and it was further renewed from 1-4-1975 to 31-12-1976. The period of licence having expired on 31-12-1976 the applicant demanded from the respondent No, 1 possession of the hotel together with all the articles therein. The respondent No, 1 asked the applicant to come again after 2/3 days. When the applicant went to the premises in case after two or three days he found respondent No, 2, who is brother of respondent No, 1, in possession of the hotel and he informed the applicant that respondent No, 1 has gone to Punjab and would come back in a fortnight. After a fortnight several attempts for taking the possession of the hotel were made, but of no avail. In May, 1977 when the applicant visited the premises he found that the respondent No, 2 was conducting the business and he informed the applicant that hotel belonged to respondent No, 1, and the applicant had no right in it. Thereafter the applicant instituted proceedings in a suit bearing No, 102 of 1977 against the Opponents for possession and injunction and on 2-7-1977 he moved application under Order XL, rule 1, C. P. C. For appointing a Receiver. The two Courts below declined to appoint a Receiver and instead the Senior Civil Judge sealed the premises and the First Additional District Judge decealed the premises and handed over its possession to the respondent No, 2.
3. This Revision Application was argued by Mr. S. Inayat Ali, Advocate on behalf of the applicant and by Mr. Jhamat Jethanand, Advocate on behalf of the respondents.
4. The arguments in nutshell of Mr. S. Inayat Ali are that the two Courts below have illegally and with material irregularity refused to appoint the Receiver. The Courts below have failed to grasp the nature of the relief sought and lost track thereof by deviating into consideration of and references to patently irrelevant, unconnected and idle contentions raised by respondents Nos. I and 2 acting in collusion to perpetuate a palpable and obvious injustice to the petitioner and no less palpable and obvious wrongful activities of respondents Nos. 1 and 2. In the net result, the respondents Nos. 1 and 2 are running the business at the cost of the applicant.
5. It appears that the proprietor of the Hotel Subhanallah was a tenant of Muhammad Ramzan, the predecessor-in-interest of respondents Nos. 3 to 8. The agreement of lease was for 15 years which expired on 17-1-1978. Considerable expenditures were incurred in construction and providing other articles by the Proprietor applicant in running the hotel but in the meantime he himself leased out the running concern to respondent No, 1 who refused to band over the possession of the hotel after the agreement of licence expired. Instead he handed over the possession of the hotel to be run by Iqbal Hussain who was his brother. Whether or not according to the original lease of rent for 15 years the owner of the plot had permitted him to further lease out on licence the hotel, was a matter which is to be seen on facts by the lower Courts.
6. Ostensibly the rent agreement inter alia between the parties expired on 17-1-1978 and it is not known whether it was renewed by a registered deed or otherwise for further period. In the meantime two agreements were executed, one between the applicant and Riaz Hussain and another between lqbal Hussain and respondent No, 3 or the predecessors-in-interest of Haji Muhammad Ramzan. It is argued by the learned counsel that it is the duty of the Courts to "uncover what is lying below". In other words what the learned counsel has pointed out is that applicant has suffered a great loss by incurring expenditure on construction on the said plot and by providing the fixtures etc. In the hotel and he is so tricked that he is dispossessed of the hotel and the running concern. Coming to the moot point whether the revision in the instant case would lie; section 115 of the Civil Procedure Code may be quoted which is as under :- "115. Revision.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears-
(a) to have exercised jurisdiction not vested in it by law,
(b) to have failed to exercise jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity.
' The High Court may make such order in the case it thinks fit."
7. I fail to find if any material irregularity is committed by the Courts of law by not passing the order appointing a Receiver thereof. The arguments of Mr. Jhamat Jethanand, learned counsel for the respondents are that the tenancy expired no sooner the tenant is dispossessed. At present the applicant is not in possession of the suit property. His further argument are that there are concurrent findings of the two Courts below to the effect that they have not found advisable to appoint a Receiver. The appointment of Receiver at this juncture of this revision application would be t aggravate and further to protract the civil litigation. In PLD 1977 Lah. 836 it was held that the discretion in appointing a receiver of the property to be exercised sparingly. The allegations of waste, dissipation and imminent danger to the property are necessary before the possession of the party is disturbed. I 'am also referred to PLD 1973 Kar. 45 in which it was held that unless the allegations of waste, dissipation and other ingredients for appointing a Receiver are alleged no Receiver could be appointed. I am also referred to 1974 SCMR 54. The appointment of a Receiver in this case was refused as the title of the property in dispute was not established. The reliance is also made on PLD 1975 Lah.
492. In this case it was held that definit allegations of wastage, dissipation, misappropriation or malversation of the property are got to be proved. In the meantime the Receiver was not appointed.
8. The facts as stand at present are that a suit is already lying before the Court having jurisdiction wherein agreement relied upon by the applicant and the respondents are got to be proved and to what relief the applicant is entitled is a matter which needs to be decided by the lower Court after adducing proper evidence on it. In the revision application there are n grounds strong enough to appoint a receiver inasmuch as the owner of th plot is not the applicant but the respondents Nos. 3 to 8. I, therefore, after ;laving considered the facts of the case, am not inclined to appoint any Receiver and as such the Revision Application fails which is dismissed accordingly with no order as to costs.