1. ' This order will dispose of both the applications filed under Order 40, Rule 1, C.P.C. Filed in Suit No,559/86 and the other under Order 39 Rule 1, C.P.C. Filed in Suit No, 526/86. The plaintiff in Suit No,559/1986 (hereinafter referred as plaintiff) has filed the suit under section 9 of the Specific Relief Act against the defendent (who is plaintiff in Suit No,526/86) hereinafter referred as the defendant, for possession of the immovable property of which the defendant is alleged to have taken possession illegally and without plaintiffs consent. Under an agreement dated 17-2-1982 the plaintiff purchased Plot No,100 Sector No,27 Korangi Township, Karachi. Thereafter, the plaintiff installed boiler and other necessary machinery to refine the edible oils but the factory could not go in operation. After obtaining necessary certificate from the Chief Boiler Inspector in July 1986 to run it, the plaintiff stocked oil and took necessary steps for starting production. He carried on business till 16-8-1986 when the factory was closed for Eid-ul-Azha holidays. The plaintiff went to Faisalabad to celeberate Eid-ul-Azha and returned on 19-8-1986 when he found that the defendant had taken possession of the factory forcibly ejecting the plaintiffs watchman and dispossessing him without his consent and otherwise than in due course of law. The plaintiff lodged report with the police which has started investigation. It is alleged that to cover up his illegal act and to forestall criminal action the defendant filed Suit No,526/1986 against the plaintiff for restraining the plaintiff from interfering with his possession. The plaintiff thus filed this suit and also filed an application under Order XL, Rule 1, C.P.C. For appointment of Nazir or the Official Assignee as receiver to prepare an inventory of the machinery, stocks of oil and other material stocked and other goods lying in the factory, to take possession of the hooks of accounts lying in the office and to make arrangements for refining the oil.
2. ' It may be mentioned at the outset that the learned counsel for the defendant has stated that the machinery, oil and goods lying in the disputed premises belong to the plaintiff and the defendant has no objection if they are removed or taken away by him. In the counter-affidavit it has been admitted that there was an agreement for sale between the parties and the plaintiff had taken possession of the land on date of execution of the agreement. As the plaintiff did not pay the balance sale consideration and was not in a position to pay it, in the month of July 1986 he offered to re-deliver the possession of said property to the defendant. This offer was accepted and in the second week of August 1986 the plaintiff re-delivered the said property to the defendant and since then the was in pyhsical possession of the property. It is further stated that the plaintiff had agreed to 'remove his machinery and property within two days and it has been denied that forcible and illegal possession was taken by the plaintiff. It may be mentioned that on 20-8-1986 the defendant filed Suit No,526/86 for permanent injunction and interim order was passed directing both the parties to maintain status quo.
3. ' The controversy between the parties has narrowed down to the question whether the plaintiff had handed over the possession to the defendant or the defendant has illegally dispossessed the plaintiff. At this stage it is not necessary to enter into the merits of the case. However, facts necessary for determination of both the applications without deciding the issues involving, have got to be examined.
4. ' Mr. S.A. Samad the learned counsel for the defendant has contended that the application for appointment of receiver is not maintainable. The main argument is that as the suit has been filed for possession under section 9 of the Specific Relief Act under which any order or decree passed is not appealable, no order against which an appeal is provided under C.P.C. Can be passed. In this regard reference has been made to Foujmal v. Sikhibai and another AIR 1937 Sindh 161. As the entire argument of the learned counsel is based on this authority it would be proper to advert to the facts of the case. In this case suit was filed for possession under section 9 of the Specific Relief Act and on an application the Court had appointed Nazir as Receiver of the property in suit with usual powers and to recover all arrears of rent. An appeal was filed against this order, and it was contended that the suit was filed for possession under section 9 of the Specific Relief Act, therefore, the Court was not competent to pass an order appointing a Receiver to recover the rent for the suit is of a limited nature. It was observed that 'under section 9 a suit for possession and mesne profit will not lie, nor can the Court pass a decree for mesne profit prior to the suit.
5. ' Nor an order for mesne profits during the pendency of the suit can be made under this section, nor a receiver can be appointed.' It was further observed that the order for appointment of receiver to recover mesne profits was beyond the scope of section 9 and without jurisdiction. Therefore the bar under section 9 will not apply to such an order and it was appealable. From the facts and observation made by the learned Judges, it seems that the main question for consideration was that in a suit under section 9 of Specific Relief Act no order can be passed for realisation or recovery of past or present mesne profit, nor a Receiver can be appointed for this purpose because recovery of mesne profit is beyond the scope of such a suit. The observation regarding appointment of receiver was made in respect of recovery of mesne profits, it is to restricted to the facts and circumstances of this case. From these observations it cannot be deduced that in a suit under section 9 of the Specific Relief Act a receiver cannot be appointed.
6. ' Before considering the arguments of the learned counsel it is proper to reproduce section 9 of Specific Relief Act which reads as follows:-- S.9.-- If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit recover possession thereof, notwithstanding any other title that may be set up in such suit.
7. ' Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.
8. ' No suit under this section shall be brought against the Federal Government or any Provincial Government.
9. ' No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
10. Section 9 provided a procedure to persons who are dispossessed from immovable property without their consent or without lawful authority and except in due course of law. Under this provision the Court is not competent to decide the title of the property. It only relates to possession of immovable property. If the plaintiff has been illegally dispossessed then section 9 can be invoked. The plaintiff should established that he was actually in physical possession of his immovable property from which he has been illegally dispossessed without his consent. The other striking feature is that the last paraghraph of section 9 provides that no appeal shall lie from any order or decree passed in any suit filed under this section.
11. ' Mr. Lari the learned counsel for the plaintiff has contended that in view of the provisions of Specific Relief Act and C.P.C. In a suit filed under section 9 of the Specific Relief Act the Court is competent to appoint receiver and also pass interim order of injunction. The learned counsel has first referred to the provisions of Specific Relief Act. Section 5 of Specific Relief Act provides the modes in which any specific relief can be granted. It reads as follows:-- S.5. Specific relief is given--
(a) by taking possession of certain property and delivering it to a claimant;
(b) by ordering a party to do the very act which he is under an obligation to do;
(c) by preventing a party from doing that which he is under an obligation not to do;
(d) by determining and declaring the rights of parties otherwise than by an award of compensation ; or
(e) by appointing a receiver.
12. Section 5 provides the reliefs which can be granted in a suit for specific performance. Some of the reliefs which can be granted are to pass order of injunction which may be mandatory or prohibitory, perpetual or interim and appoint a receiver.So far section 5(c) is concerned it relates to preventive relief in the form of injunction which is dealt with by sections 52 to 57 of the Specific Relief Act. Section 52 provides that preventive relief can be granted at the discretion of the Court by injunction, temporary or perpetual. Therefore, the Court under the Specific Relief Act is empowered to grant temporary or permanent injunction which may be mandatory or prohibitory in form.
13. Section 53 deals with temporary injunction specifying that such order shall continue until a specified time or until further orders of the Court. They can be granted at any stage of the suit and are regulated by the Code of Civil Procedure. This section therefore, imports the provisions of Code of Civil Procedure for regulating the grant of temporary injunction. It follows that so far grant of temporary injunction is concerned provisions of Order 39 can be pressed in service. Section 54 deals with perpetual injunction and it provides in what cases perpetual injunctions may be granted. Section 55 deals with mandatory injunction and section 56 deals with the cases in which injunction can be refused. Section 57 provides for granting injunction to perform the negative agreement. These provisions have been referred to illustrate that in terms of section 5(b) and (c) of the Specific Relief Act the Court is competent to grant such reliefs. There is no restriction placed under any provision of the Specific Relief Act or the Code of Civil Procedure that in case where the suit is filed under section 9 of the Specific Relief Act temporary injunction cannot be granted or receiver cannot be appointed. Now coming to section 5(e) of the Specific Relief Act it is clear that it empowers a Court to appoint receiver which has reference to section 44 of the Specific Relief Act which reads as under:-- "S.44.--The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.
14. The mode and effect of his appointment and his rights, powers, duties and liabilities are regulated by the Code of Civil Procedure.
15. ' This provision clearly provides that the Court in its discretion in a proper case may appoint a receiver in pending suits. The appointment of receiver, his rights, powers, duties and liabilities are regulated by the Code of Civil Procedure. Therefore, the provision of C.P.C. Namely Order XL is directly imported by section 44. It is also pertinent to note that under section 44 the receiver can be appointed in a perkling suit but there is no restriction that such power cannot be exercised in a suit filed under section 9 of the Specific Relief Act. It therefore, boils down to this that under section 5 the Court is empowered to grant injunction, mandatory or prohibitory; permanent or temporary and appoint a receiver in a pending suit and such order will be regulated by the provisions of Orders 39 and 40, C.P.C. None of the provisions of the Specific Relief Act or Code of Civil Procedure bar the exercise of such powers in a suit filed under section 9 of the Specific Relief Act.
16. ' Mr. Lari the learned counsel has referred to section 7, C.P.C. Which illustrates that wherever the intention of the legislature was to exclude the applicability of the provisions of C.P.C. It has specifically been provided in it. Therefore, the provisions of C.P.C. Do not debar the Court from exercising power under Order XXXIX and Order XL, C.P.C. In a suit filed under section 9 of the Specific Relief Act.
17. The object of the provisions of Code of Civil Procedure is to administer justice and pass orders which may be effective and may not be rendered infructuous and futile by any party during the pendency of the suit. To achieve this object the Court can exercise power under Orders 39 and 40, C.P.C. And pass order to preserve the property in dispute. All these provisions ensure effective administration of justice so that the decree-holder may be able to reap the fruits of decree. Mr. Lari has referred to Hari Shankar and others v. Satya Prakash and another, AIR 1982 Raj 183 where the following observation was made:-- ' It is correct that finally with the relief for granting the decree, the limitation of section 9 of the Specific Relief Act would apply, but that also implies that the Civil Court should preserve the property in dispute, if necessary, in the same condition, so that an effective decree for possession can be given in favour of the plaintiff. It would be futile exercise, if the Court is held to be powerless for making any arrangements or granting any injunction or directions to ensure preservation of the property, and then at the time of passing the decree when the stage of execution comes, it is found out that either the entire property has been wasted, destroyed, altered, removed, dilapidated, and alienated. This would result in making a futile decree. I am, therefore, of the view that even though under section 9 of the Specific Relief Act finally the Court may not be competent to grant injunction or make any arrangements for the tenants or other purpose, but the Court can certainly grant a temporary injunction to ensure preservation of status quo and to restrain the defendants from wasting, removing, alienating, demolishing, altering, transferring and changing the state of the property in dispute.
18. It therefore, crystallises that in a suit filed under section 9 of the Specific Relief Act the Court is empowered to grant interim injunction, prohibitory or mandatory and appoint a receiver to preserve and protect the property in dispute.
19. ' Now coming the facts of the case the admitted position is that under an agreement dated 17-2- 1982 the plaintiff had purchased the plot from the defendant in pursuance of which he obtained its possession and thereafter installed his machinery and was running an oil mill. According to the defendant as the plaintiff was unable to pay the balance consideration he verbally agreed to redeliver the possession of the plot and construction in the second week of August 1986 and remove his machinery and goods. According to the plaintiff the defendant has dispossessed him without his consent while he had gone to Faislabad during Eid-ul-Azha by forcibly ejecting his watchmen. When the suit was filed a commissioner was appointed to prepare inventory of articles bying in the disputed premises. He has submitted his report from which it seems that a fulfledged oil factory was running there. Besides the machinery storage tanks there was a large quantity of raw oil, processed oil and oil under processing. There were chemicals, salt, tins and drums.
20. According to the Commissioner 'the neutralizer and bleacher were found closed while they were in running condition' and 23 tons of oil were in them. In one locked room whose key was with the plaintiff the Commissioner found the personal effects of the plaintiff.
21. ' Prima facie it does not seem to be reasonable that the plaintiff who has paid part consideration, installed machineries and was running a business would agree to vacate and leave every thing to the defendant merely on oral agreement. If the plaintiff would have agreed to do so he would have removed his machinery equipments, furniture fixture an oil instead of leaving them at the mercy of the defendant. The defendant has failed to make out a prima facie case. Nor it has been established that if an order of injunction is not granted irreparable loss will be caused to him or that the balance of convenience is in his favour. I am making these observations as I am also considering defendant's application under Order 39, Rules 1 and 2, C.P.C. Filed by him in Suit No,526/86.
22. ' Considering the facts and circumstances of the case it would be just and proper to preserve the property in dispute which may not be wasted or get deteriorated. I therefore, appoint the Official Assignee the Receiver of the disputed property with powers to take all steps to protect it. He would keep the property in his custody and control and appoint chowkidars whose salary shall be paid by the plaintiff. As the defendant has no objection to the removal of the goods by the plaintiff, the receiver will allow the plaintiff to remove the same under his supervision and a record of such goods shall be maintained by him. The plaintiff shall deposit Rs,10,000 with the Receiver towards his fee and expenses.
23. ' In view of this order as the interest of the defendant is also safeguarded and for reasons stated above Misc. Application No,3609/86 filed under Order 39, Rules 1 and 2, C.P.C. Is dismissed.