1. ' The petitioners are the defendants in the suit filed by the respondents herein in the Court of Qazi Bhag.
2. ' The plaintiffs in their suit for declaration and perpetual injunction have alleged that they are in possession of the suit land since a very long time and they have been,enjoying all the benefit of ownership as heredatory tenant c.31.? since the time of Ex-rulers of Kalat State and the defendants had never claimed nor received any Haq-e Malikana in respect thereof but since about six months prior to the filing of the suit the petitioners have started interfering in their possession. Accordingly it has been prayed in the suit that they should be declared as Maroosi Bazgars and being in possession be declared as owners. A prohibitory injunction against the defendants is also prayed for on an application for interim injunction moved on behalf of the plaintiffs, after having heard the defendants, the learned Qazi on 27-6-1984 passed an order that the possession of the petitioner be not disturbed. More than five months thereafter an application was made on 17-11-1984 and it was contended therein that the lands be taken possession of and kept in Mianji Khana (under official custody by the Government officials) as they are likely to be deprived of the share of produce (Haq-e-Malikana). This application was rejected by the learned Qazi on the ground that since the plaintiffs are in possession of the suit land and have cultivated lands and grown crops it is not just and convenient to place the crops and land in the Mianji Khana.
3. The earlier order passed by him on 27-6-1984 was reaffirmed. At the same time it was pointed out by the Qazi that the provisions of law under which the application was moved had not been quoted. The petitioners moved the Majlis-e-Shoora but could not succeed because according to the learned Members of the Majlis-e-Shoora the plaintiffs could not be deprived of the fruits of their labour keeping in view the principles laid down under Order XXXVIII rule 12, C.P.C. The Advocate then appearing for the petitioners before the Majlis-e-Shoora did not point out the provision of law under which the lands and the crops was desired to be placed in Mianji Khana by the petitioners, perhaps he did not care to be acquainted with relevant law.
4. ' Mr. Ehsan-ul-Haq the learned counsel for the petitioners has complained that the application moved by his clients was in fact under Order XL,. rule 1, C.P.C. and the Courts below have not appreciated that mere non-mention of the provision of law the application was not liable to be thrown out. There may be force in the contention but that does not advance his case. Both the Courts below have come to the conclusion that the crops were grown by the plaintiffs/respondents, it was being asserted by the plaintiffs that they have been in possession thereof and cultivating the lands and no claim about any Haq-e-Malikana was asserted in the past and received by the defendants/petitioners. Additional by the time the matter came up before me there is no crops as the Kharif crops have been taken out from the fields and there is nothing which can be taken in possession and by placing the property in the custody of an official Receiver, the persons who have been enjoying the fruit of their labour so far would be deprived of their source of livelihood. The property itself would go waste. The object and purpose of the appointment of Receiver may generally be stated to be preservation of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto. Since the Receiver disturbs the person in possession the appointment of Receiver is recognized as one of the hashest remedies which the law provides for the enforcement of right, so the jurisdiction must be exercised in extreme cases. Except a bald statement contained in the application nothing has been brought on record that the Haq-e-Malikana was ever realized by the defendants, the claim of the plaintiffs is prima facie established. Even if the suit is ultimately dismissed no Haq-e-Malikana can be awarded as a consequence thereof. Under these circumstances there is no substantial ground for dispossession of the plaintiffs from the lands in suit or deprive them of the crops to be grown thereon. The learned counsel for the petitioners has urged before me that the request for placing the crops and the land in Mianji Khana was only to secure the Haq-e-Malikana. As I have already said that even if the suit is dismissed there is no likelihood of the grant of Haq-e-Malikana in the proceedings before the Qazi the submission of the learned counsel is therefore, fallacious on the face of it. The provisions of Order XL, rule I, C.P.C. by using the words "Just and convenient" confer a discretion on the Court and is in the first instance that if the Court in which the suit is pending and has a reference not to one party or the other but to what the Court feels to be proper in the circumstances of the case. The Privy Counsel in Benoy Krishna Mukerjee and others v. Satish Chandra Giri and others AIR 1928 P C 49 has laid down the criteria, appearing on page 50 of the report, in these words:- "On an interim application for a receivership such as this, the Court has to consider whether special interference with the possession of a defendant is required, there being a well-founded fear that the property in question will be dissipated, or that other irreparable mischief may be done unless the Court gives its protection. Such an order is discretionary, and the discretion is, in the first instance, that of the Court in which the suit itself is pending."
5. 'This criteria has always been in view by the Courts dealing with the applications for the appointment of receiver and this is the principle which has been emphasized by the superior Courts in this country. The principle of law is so well-established that it requires no citation of authorities. The defendants/petitioners in their application for keeping the lands and the crops in "Mianji Khana r:46 do not level any allegation of waste. On the other hand by placing the property in "Mianji Khana" the plaintiffs are to suffer irreparable loss. The application of the defendants/petitioners in the circumstances of the case is misconceived and the discretion in rejecting the same is correctly exercised and no ground for interference is found. The revision is, therefore, dismissed in limine.