This judgment shall dispose of Civil Revisions Nos.185 and 204 of 1991, as common questions of law and facts are involved in both the petitions.
2.Briefly stated the facts of the case are that on 18-8-1990 petitioner/plaintiff filed a. Suit for declaration, possession and permanent injunction in. The I Court Of Civil Judge 111, Quetta against respondent/defendant, praying inter alia, for declaration that he is lawful tenant of the shops in dispute and is exclusive owner of business being run therein. The. Defendants Nos. 2 to 5 have no lawful authority to disturb plaintiff's tenancy rights over disputed property except in accordance with law and respondent No.1 has no right whatsoever to get tenancy changed on his name from the name of plaintiff.
During pendency of above suit petitioner filed another suit on 27-2-1991, inter alia, claiming relief of declaration, permanent injunction and along with suit an application under Order 40, rule 1, C.P.C.
Was also filed praying therein for appointment of 'Receiver' pending disposal of suit.
4. The trial Court vide order dated 2-3-1991, appointed 'Receiver' in respect, Of disputed property, respondent preferred an appeal before District Judge, Quetta, which was also dismissed vide order dated 6-4-1991 mainly for the reason that notices as required under Order 4.3, rule 3, C.P.C. Have not been served. In these circumstances, respondent filed Revision Petition No.56 of I991 before this , Court which was disposed of vide judgement dated 27-5-1991 whereby on concession (if both the parties case was remitted to trial Court for disposal of application in accordance with law. It appears that on remand of case respondent filed rejoinder to application and trial Court came to concision that petitioner/plaintiff has not been able to make out strong prima facie case inhis favour for appointment of Receiver, consequently application was rejected by means of impugned order dated 2-6-1991.
5. Petitioner preferred appeal before District Judge, which was dismissed vide judgment dated 9-7- 1991, but on different reasons.
6. The petitioner/plaintiff Salahuddin assailed above orders in Civil Revision No.185 of 1991, whereas respondent Rahim Bakhsh in Civil Revision No.204 of 1991, also challenged order, of District Judge to the. Extent of observations which have been made against him. In support of Petition No.185. Of 1991, Messrs Muhammad Aslam Chishti and Muhammad Arshad Chaudhry, contended as under:-- (i)The trial Court had erroneously held that while disposing of miscellaneous application for the purpose of passing interlocutory orders Court is barred to look into material which has not been brought on record in accordance with law.
(ii)The District Judge has also illegally drawn ' inference that because valuation of assets involved in disputed business being run in the Shops Nos.2-28/8(A) and 2-28/7, has not been proved therefore, 'Receiver' cannot be appointed. Although petitioner had made out a case for appointment of 'Receiver'. . .
(iii)According to the provisions of Order 40, rule 1, C.P.C. It was just and convenient for lower Court as well as appellate Court to appoint receiver to safeguard the interest of petitioner/plaintiff Salahuddin.
On the 'Other hand - Mr. Shakeel Ahmad, learned counsel for respondent contended as under:-- (i)Suit No.29 of I1Y)I out of which present proceedings had arisen, was not competent because prior to this suit on 15-8-1990 petitioner Salahuddin had Filed another suit on the same cause of action and with identical and similar prayer, therefore, application for appointment of 'Receiver' in second suit may not be considered legal and competent.
(ii)Order passed by Appellate Court is not proper and legal because trial Court has rightly concluded that no case is made out for appointment of 'Receiver'. As such inference drawn by Appellate Court in this context, is not based on sound and judicious principles of law.
(iii) Petitioner Rahim Bakhsh is running business in disputed, shops in his own right a-s such, Salahuddin (plaintiff) cannot invoke jurisdiction of the Court for appointment of 'Receiver' unless he has proved his entitlement as envisaged under rule 1, Order 40 of C.P.C.
8. I have heard the learned counsel for parties at length and record of the case has also been gone through.
9. Before taking up respective pleas of parties for consideration, it would be necessary to precisely note the claim of plaintiff Salahuddin and the stand of respondent Rabim Bakhsh which he has taken in the reply of application for appointment of 'Receiver'.
10. According to plaintiff's case ., as it has been averred in the plaint, the was tenant since 1973 in two shops bearing Municipal No. 2-28/7 and 2-28/8(A) situated at Liaquat Bazar, Quetta in which, he established business of stationery in the name and style of 'Babar- Stationery Mart'. After investing Rs.5 lac he inducted respondent and his brother Malik Faiz Muhammad in his business as they were his nephews being sons of his brother-in-law late Malik Sher Muhammad. Malik Faiz Muhammad died in the year, 1989, however, Rahim Bakhsh continued in business and in the year 1990 he started claiming himself to be exclusive owner of the same, as such in the circumstances, a suit was riled on 15-8-1990, but later on another suit for declaration and injunction as well as for - rendition of accounts was filed in respect of business which is being run.
11. According to the case of petitioner Rahim Bakhsh, Salahuddin has nothing to do with business in dispute because as back as in the year, 1977 late Malik Faiz Muhammad paid him Rs.3,25,000 and thereafter he scve red his all connections. The present landlord Hamidullah has accepted respondent as tenant in two shops and he is regularly paying rent to him. Suit has been filed maliciously and without any justification.
12. Appointment of 'Receiver' is entirely within the discretion of Court A but same is to he exercised judiciously. For the sake of convenience relevant t-A provision i.e. Order 40, rule 1, is reproduced hereunder:-- "ORDER XL: 1,Appointment of Receivers.--(I) Where it appears to the Court to be just and convenient, the Court may by order-- (a)appoint a Receiver of any property, whether before or after decree; (b)remove any person from the possession or custody of the property; (c)commit the same to the possession, custody or management of receiver; and (d)confer upon (lie Receiver all such powers as to bringing and defending suits and for the realization,, management, protection, preservation and improvement of the property' the collection of the rents and the profit thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks it."
12.A. The perusal of trial Court's order dated 2-6-lW1, makes it clear [hat appointment of 'Receiver' was declined because petitioner Salahuddin's litle is in dispute, and he has not placed any document on record which would show that a case is made out for appointment of a 'Receiver'.
The perusal of substantive law does authorise the Court for appointment of "Receiver" of the property, if the title of plaintiffs is found valid. The discretion has been conferred on Court to take into consideration that whether it is just and convenient to appoint 'Receiver' or not. The expression "just and convenient" in ordinary sense would mean that whether it is practicable in the interest of Justice . To appoint "Receiver". The Court before whom matter is pending for ,consideration is, sole authority to determine these aspects of the case, because idea for appointing'Receiver' is to provide protection to rights of both the parties. It is important to observe here that if a person is removed from possession, necessarily it would cause inconvenience to him. As such, possession can be taken over if there is reasonable apprehension of causing mismanagement, mischief etc. To the property. In this behalf reliance is placed on AIR 1955 Bhopal 14 and AIR 1902 Madras 458.
Mr. Muhammad Aslam Chishti, learned counsel for appellant also 11 1988 CLC 1567, 1987 CLC 1765 and 1971 SCMR Wi.
14: Whereas Mr. Shakccl Ahmad, Learned counsel for respondent relied (in 1974 SCM R 54 (NI. Ataur Rehman v. Inamur Rehman) and 1983 SCM R 659 (Muhamamd Sadiq v. Muhammad Riaz).
15Keeping in view the above judgements following principles are laid down which are laid down which are to be kept in mind while considering request for appointment of ---Receiver--- :_ i) Appointment of Receiver rests entirely with the jurisdiction of the Court, which IS to , exercised judiciously, keeping in view attending circumstances, to d justice between the parties.
Ii) Appointment of ---Receiver" should be to safeguard interest of both disputed property from mismanagement and mischief.
(Iii) Plaintiff is bound to prove strong prima facie case in his favour to the effect that ultimately he will succeed in getting relief as prayed for.
Iv) What are those circumstances which warrant immediate appointment of Receiver.
16. The case of plaintiff/petitioner Salahuddin now has to be examined at the touchstone of above principles. In this behalf it may be seen that according to his contention dispute arose between him and respondent Rahim Bakhsh and his brother late Malik Faiz Muhammad, in 1978 due to which relations between the parties became, tense and strained, respondent and his brother continued looking after business in reliable manner but they started damaging interest of petitioner in, the business as well shops and started declining running business properly and regularly etc.
17. Respondent Rahim Bakhsh had not yet filed written statement but in reply to application for appointment of 'Receiver', his stand was as follows:.- "it may be pointed out here that initially brother of defendant namely Malik Faiz Muhammad, was doing business in shops in question since 1973-74 in his own capacity and in the year 1977 took an amount of Rs.3.25.0W from the defendant and severed his all connections with business in shop in dispute. Respondent himself asked the landlord to transfer tenancy rights in favour of defendants and since March, 1977, defendant is in possession of shops in dispute in the capacity of tenant of Hamidullah Khan."I The above Statement admits an ambiguity because there was no Occasion for respondent Rahim Bakhsh to pay aforesaid amount to his brother late Malik Faiz Muhammad. However, this assertion was mentioned in more clear words in written statement Filed by him in earlier suit dated 18-8- 19W, in which, it was mentioned as under:- "it would be relevant to point out here that brother of this defendant namely Malik Faiz Muhammad was doing business in the name and style of 'Babar Stationery Mart', since 1973-74 in his own capacity. The plaintiff and his brother are closely related to each other and on account of fiduciary relationship the rent receipts were being issued in the name of plaintiff for some time. However, in the year, 1977 the plaintiff took R.s.3.25.0N) from late brother of this defendant and severed all his connections with the business and the shops in dispute. Ii was the plaintiff himself who asked the landlord to transfer the tenancy rights in favour of this defendant."
17. Similarly in para. 4 of the aforesaid written statement, it wits reiterated by respondent Rahim Baksh I hat his brother never requested plaintiff (Salahuddin) that his two sons namely Rahim Baksh and late Malik Faiz -Muhammad may be allowed to sit and look after his business. The plaintiff himself requested that since lie is doing business at Archer Road, in the name and style of Salem Book- Depot', therefore, it is not possible for him to do any business in the shop in dispute. As, Stich, plaintiff and his brother were given Share and they were allowed to run business. In the capacity of owner, and plaintiff severed his all connections relating to tenancy connections relating. To tenancy in March, 1977 when he after receiving handsome amount of Rs.3,25,000 had transferred the tenancy rights in favour of this defendant.
Surprisingly no document has been shown to establish that aforementioned amount was given by respondent or his late brother Malik Faiz Muhammad to petitioner, but inference can be drawn that originally business was started by petitioner, the respondent and his brother was inducted therein, but as subsequently relationship became strained and parties went in litigation '
Be that as it may, it is the duty of plaintiff to establish his title independently .
18. Mr. Aslam Chishti, learned counsel for petitioner contended that Zafar Salecm son of Salahuddin got registered the firm with Balochistan Text Book -Board by the name and style of 'Babar Stationery Mart' and he is executing contracts etc. With said Board as proprietor of 'Babar Stationery Mart' to the knowledge of respon&nt and he never raised any objection. Similarly this firm is also registered with Income Tax Department and petitioner and his sons arc making payment of income-tax.
19. Mr. Shakeel Ahmad, learned counsel for respondent objected that income-tax is not being paid for disputed business rather it is being paid for the business relating to the printing of books etc., being run in the name of above firm. But in respect of disputed business, no valid enlistment made by authorities of Balochistan Text Book Board has been produced before the Court by petitioner.
20. Admittedly since 1978-79, parties arc not keeping good relations and for the last 14 years petitioner did not express any objection on the conduct of respondent as now is being alleged, inasmuch as, the tenancy of disputed shops was transferred by its landlord in name of respondent, anyhow, it is not understandable that how, within the period of last one year, it occurred to petitioner for instituting legal proceedings against respondent.
21. It may be observed that admittedly Rahim Bakhsh is in possession of the shops, in which, the business is being run for the last so many years and he is also paying rent to landlord against valid receipts which prima facie establishes his entitlement to retain possession of the property, therefore, it would not be just and convenient to throw him out from business after appointing 'Receiver', not withstanding the fact, whether petitioner ultimately succeeds in proving his claim as mentioned in suit or not.
22. Under these circumstances, in my opinion no case has been made out seeking indulgence of this Court for grant of relief as has been sought for in the application under Order 40, rule 1, C.P.C., resultantly, Revision Petition No.185 of 1991 is dismissed.
23. The appellate Court had made certain observations while passing impugned judgement, which are not sustainable in view of settled position of law F on the subject, therefore, these observations would-not adversely affect thecase of petitioner Rahim Bakhsh in Civil Revision Petition No.204 of, 1991 during pendency of suit.
With the above observations Revision Petition No.204 of 1991 is also hereby disposed of.
As the parties are inter se related to each other, therefore, there would be no order as to costs.