' Briefly the facts are that the present plaintiffs have filed this suit for dissolution of Partnership Firm under section 44 of the Partnership Act,, declaration and accounts.
' The case of the plaintiffs is that the parties to the suit are related inter se, plaintiff No,3 being the father and plaintiffs Nos.1 and 2 and the defendant being the sons. It is and in the plaint that the plaintiff No,3 had four shops/stalls in Sabzi Mandi, Karachi being stalls Nos.299, 300, 301 and 302 which were purchased by the plaintiff No,3 from the persons to whom the same were allotted and that the plaintiff No,3 settled his sons i,e. Plaintiffs Nos.1 and 2 and the defendant in the business of import of ginger and garlic. It is also the case of the plaintiffs that all the parties carry on the business of import and sales of the said commodities from Singapur and Bangkok and that the defendant being the elder brother was managing the entire business and keeping accounts. It is alleged that the defendant has purchased other movable and immovable property from the income of this business and also that on 24-7-1986 he executed a writing whereby he undertook to pay Rs,1,000 per month per shop to the plaintiff No,3 in respect of the three shops. The plaintiffs have then alleged that the defendant has not paid anything out of the income from the joint business which was running in the name and style of Messrs Abdullah Jan & Co. In the above shops and that in the last week of June, 1991 the defendant gave out that the plaintiffs have nothing to do with the business and somebody else was his partner in the same. Consequently the plaintiffs filed this suit with the following prayers:- "(a) Declaration that the business carried on by the defendant under the name and style of Abdullah Jan & Co. Belongs jointly to the plaintiffs and the defendant.
(b) The Hon'ble Court may be pleased to dissolve the partnership under section 44 of the Partnership Act.
(c) The defendant to render full and true accounts of the partnership after dissolution of the partnership.
(d) Any other relief which this Hon'ble Court may deem fit in the circumstances of the case.
(e) Costs of the suit."
' Alongwith the plaint they have filed photostat copies of two documents. First one is an undertaking dated 24-7-1986 wherein the defendant has undertaken to pay the rent of three shops to the plaintiff No,3 amounting to Rs,3,000 every month. The other documents is a wealth statement filed by plaintiff No,1. Alongwith suit the plaintiffs also filed an application under Order 40, Rule 1, C.P.C. For appointment of a Receiver over the business and shops. This application was contested by the defendant who has filed his counter-affidavit.
' The defendant has filed his counter-affidavit wherein he has denied all the allegations made by the plaintiffs. The defendant has contended that there was no partnership at all between the parties. His case briefly is that he had purchased the shop No,301 from his father for valuable consideration of Rs,1,50,000 of which Rs,1,18,000 were paid by means of a Pay Order while the remaining Rs,32,000 was paid in cash. He has further contended that he was occupying three shops bearing Nos. 290, 291 and 301 which belongs to his father and it was for these three shops that he had agreed to pay the rent and the matter was taken for settlement of dispute before the Anjuman-eWholesalers of Sabzi Mandi and decision was taken on 27-8-1989 whereby the present defendant was directed to vacate the three shops by 31st December of the same year which he did and subsequently purchased the Shop No,301 from his father as stated above through an agreement in writing. The defendant has also stated in his counter-affidavit that all the other three shops he purchased the same from the allottees of the said shops. He has produced the documents in support of his above contention. He has also produced an agreement of partnership dated 29-6-1988 which shows that prior to this agreement of this partnership he was running the business in partnership with the present plaintiff No,1 only and which had since been dissolved and that by this deed of partnership he has entered into partnership with M/s. Mushtaq Ahmed and Pir Ahmed both sons of Ali Muhammad Dewan.
' In this case the Nazir was directed to prepare the inventory of the articles and merchandise lying in the said shops and the stocks in the godown. The site was inspected on 10-7-1991 and again on 11-11-1991 and he submitted the report.
' Mr. Muhammad Shareef, learned counsel for the plaintiffs has submitted that there was oral partnership between the parties the same would be deemed to have continued till dissolved and that in such case when one of the partners seeks the dissolution through Court a Receiver over the properties of the partnership has to be appointed. In support of his contention he has mainly relied on a document produced by the defendant i,e. Deed of Partnership dated 1-7-1988. This document is filed as Annexure 'J to the counter-affidavit of the defendant. Of course in paragraph two of this document there is a mention that the present defendant was carrying on business of partnership alongwith other partner, namely, Muhammad Mostakeem (plaintiffs No,1). From this the learned counsel has submitted that it amounts to an admission on the part of the present defendant that the partnership did exist between the plaintiff No,1 and the defendant and, therefore, he cannot deny the existence of such partnership. However, when the learned counsel was asked that if he wants to rely on this document to substantiate the contention of the plaintiffs then the plaintiffs Nos2 and 3 would not have any right for the reasons that they have not been mentioned as partners in this document and the learned counsel very candiuly conceded to such position.
However, this one paragraph from this document is not to be read in isolation but further contents of the document have also to be looked into. The very next paragraph of this document shows that the partnership with Muhammad Mostakeem had been dissolved due to his retirement with effect from 30th June, 1988. In these circumstances it appears that even plaintiff No,1 was no more a partner in the business. The other document relied upon by the learned counsel for the plaintiffs is the wealth statement filed by the plaintiffs alongwith their plaint which makes a mention of Capital Receiveable from M/s. Abdullah Jan & Co. At Rs,2,10,284.00. This wealth statement is signed by the plaintiff No,1 himself. It is the case of the plaintiffs that this wealth statement was filed by the defendant on behalf of the plaintiff No,1 but the defendant has denied this fact in his counter- affidavit. As regards the other documents produced by the plaintiff the said documents show that the defendant had agreed to pay the rent for three shops at Rs,1,000 per month to the plaintiff No,3 but this document does not mention the shop numbers nor it contains anything to show that there was a partnership between the parties. Now, if this document is to be treated as a document with regard to the three of the four shops in dispute then one cannot conceive as to why only one of the four partners was made liable to pay the rent of the shops and not the other partners. It also does not mention if this rent was to be paid from out of partnership amount. It may be observed that the plaintiffs have not mentioned in the plaint as to what were the terms or conditions of the partnership, all that is contained in the plaint is a general assertion that there was a partnership between the parties. Section 6 of the Partnership Act provides mode of determining existence of partnership which reads as under: "6. Mode of determining z existence of parternship.--In determining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Explanation 1.---The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such persons partners. Explanation 2.---The receipt by a person .Of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make 'him a partner with the persons carrying on the business; ' and in particular the receipt of such share or payment:--
(a) by a lender of money to persons engaged or about to engage in any business:
(b) by a servant or agent as remuneration,
(c) by the widow or child of a deceased partners, as annuity, or
(d) by a previous owner or part owner of the business, as consideration for the sale of the goodwill or share thereof, does not of itself make the receiver a partner with the persons carrying on the business."
'In light of the above provisions of law it has to be seen as to what was the real intention of the Parties and this could only be gathered from any overt act shown to have been done by the person who claims to be a partner in the firm. There is absolutely nothing on the record to show if any of the plaintiffs have done anything or performed any act from which it can be inferred that they were the partners in the firm. It has not been asserted in the plaint if any of the plaintiffs had invested any money or put in property in the said partnership. As against this the defendant has placed on record an agreement through which he has purchased the shop No,301 from his father Suleman for valuable consideration of Rs,1,50,000. He has also placed on record a K.M.C. Challan showing security deposit for said shop made in the name of his son Riaz Ahmed. He has also placed on record the transfer/regularization orders in respect of the Shops Nos.300 and 302 issued in his name and that of his son Ishaq Ahmed. He has also produced two certificates of Inspector of Vegetable and Food Market, Karachi to show that Shops Nos.300, 301 and 302 weir kept by him and his two sons while Shop No,299 was allotted to one Abdul Ghafoor son of Taj Muhammad. He has placed on record a statement of his father reduced in writing on 1-7-1984 which shows that his father had separated all of his six sons. Even the decision made by the Anjuman-e-Wholesalers on 27-8-1989 shows that the dispute between the plaintiff No,3 and the defendant was in respect of three shops for which he had to pay the rent i,e. Shops Nos.290, 291 and 301. Shops Nos.290 and 291 are not in dispute in the present suit while Shop No,301 is shown to have been subsequently purchased by the defendant from his father as stated above. In this view of the matter and without giving any conclusive findings on this facts I may observe that prima facie the plaintiff has not been able to show any title to any of the shops in suit nor their participation in partnership firm. All the facts asserted by the plaintiffs and denied by the defendant can best be resolved after the parties have led evidence in the suit.
The object of the appointment of a Receiver in a suit is to safeguard the interest of all the parties as well as the property which is the subject-matter of litigation, However, certain principles have been laid down for appointment of a Receiver although it is discretionary that the Court may do so if it is just and convenient. This discretionary power may be exercised subject to control and judicial principles. All these principles down that the power to appoint a Receiver be exercised sparingly as it is a very harsh remedy and tantamounts to dispossess a person who is already in possession.
The other principle is that it should be exercised for the safeguard of the interest of all parties as well as the property itself and thirdly any person who is in possession or occupation of the said property bona fide may not be disturbed unless there are allegations of waste and dissipation of property or some evidence has been placed on record to show strong apprehension of peril to property.
' Mr. Muhammad Sharif, learned counsel for the plaintiffs has placed reliance on a number of cases as under:-- ' Brown v. Wren Brothers (1895) S.1 Q B page 390),
2. The President---Referring Authority v. Mr. Justice Shaukat Ali (PLD 1971 SC 585),
3. P.A. Shaikh v. President, Evacuee Properties (PLD 1960 S.C.
330),
4. Mst. Ghazala Zakir v. Muhammad Khursheed (PLD 1989 Kar. 350),
5. Asghar Ali v. Abdul Hussain (PLD 1977 Kar. 280),
6. Muhammad Jamil v. Iqbal Ahmed (PLD 1977 Kar. 351) and Muhammad Ismail Alvi v. Pakpor Ceramics Ltd. (PLD 1973 Kar. 491).
' It may be observed that in all the above-stated cases there was some material on record to show that the person claiming to be a partner in a firm had performed some overt act or shared in the profits of the partnership firm and, therfore, the Hon'ble superior Courts had held that partnership did exist and the persons seeking dissolution of partnership had a right to its profits or assets. In Lhe present case the very title of the plaintiffs to the property and the very fact that such partnership firm ever existed is in dispute. The plaintiffs have thus sought a declaration in respect of existence of such partnership in the plaint and in these circumstances it would not be appropriate to appoint Receiver dispossessing the defendant who has otherwise shown from the documents produced by him to be in bona fide possession unless the same is proved otherwise through evidence.
' Mr. Suleman Kassim, learned counsel for the defendant has relied upon a number of decisions of the superior Courts in support of this contention. In case of M. Attaur Rahman Alvi v. Inamur Rahman (1974 SCM R 54) their Lordships have observed that where the title of the person to the properties was disputed, he could not ask for appointment of a Receiver over the same and the person in possession could not be deprived of the properties. In the case of Rais Taeeb and 2 others v. Raza Muhammad (1985 CLC 2600) such application was dismissed for the reasons that the right of the parties were yet to be determined. In the case of Sheikh Abdul Shakoor v. Shaikh Abdul Qadir (1982 CLC 707), Saleem Akhtar, J. (as his Lordship then was) has held that mere apprehension of mismanagement or misappropriation would not be sufficient to call for appointment of a Receiver but that there should be very strong evidence to show that the property was being wasted or was in danger of being wasted. His Lordship has also held in the case of Rahmat and Sons Ltd. v. Saeed Tourist Enterprises (1982 CLC 2667) that no Receiver should be appointed in case there are controversies between parties which require to be decided at the time of the trial. In a case of Lahore High Court reported as Sardar Wali Muhammad v. Sardar Muhamamd Iqbal Khan Mokal (PLD 1975 Lah. 492), a learned Single Judge of the Lahore High Court has also followed the above-cited principles laid down by the superior Courts for appointment of a Reveiver.
In view of the above discussions it can be said that the rights of the parties are subject to determination in accordance with the evidence which is yet to be brought in the suit and it would, therefore, be harsh upon the defendant to dispossess him of the business. He is said to be carrying on business at present. However, in the interest of safeguarding the rights of the parties and protecting the subject-matter of the suit itself the defendant should also be put to terms.
Accordingly, I dismiss the present application of the plaintiffs moved under Order 40, Rule 1, C.P.C.
But at the same time the defendant is directed to furnish six monthly accounts of the business in Court and he is restrained from transferring or alienating the business in suit or creating any third party interest therein. However, there will be no order as to costs.