' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, with the leave of the Court, has been filed to impeach the correctness and legality of an order passed by the High Court on August, 5, 1996, whereby the revision petition filed by the respondents was accepted.
2. The precise facts, culminating into the present appeal, are, that the dispute between the parties relates to land measuring 11 Marlas, comprising Survey No,4/1, situate in Chella Bandi, District Muzaffarabad, over which a hotel and shops stand constructed. A suit for declaration and perpetual injunction was filed in the Court of Sub-Judge, Muzaffarabad, by the respondents on October, 19, 1995, alleging therein that the suit land is in the ownership and possession of plaintiffs on the basis of a gift-deed executed in their favour by their father, Gul Zaman, on January 8, 1976, wherein they had constructed shops and a hotel. It was prayed that a decree for declaration and perpetual injunction be issued in favour of plaintiffs-respondents that they are owner in possession of the suit property and the defendant-appellants be restrained from interfering into their ownership and possession of the suit property. The plaintiffs also filed an application alongwith the suit for issuance of an interim injunction that the appellants-defendants be restrained from interfering into their possession. The trial Court issued the interim stay order on the same date subject to objections from the defendants till the 4th of November, 1995. In the meantime, on 1-11- 1995 the plaintiffs filed another application in the trial Court that despite the temporary injunction issued by the Court, they had been dispossessed by appellants herein forcibly. Thus they prayed that either the possession of the disputed property should be restored to them or the same might be attached. The learned trial Judge on this application attached the suit property subject to objections from the other side and the cause was posted for 13-11-1995. Since on the interim injunction the objections were to be filed on 4-11-1995, so the appellants-defendants on the said date filed their objections alongwith the relevant documents. The appellants-defendants also filed their objections on the application for attachment of the suit property; however. The learned trial Judge vide his order dated 13-11-1995 after hearing the parties upheld his previous order and ordered the attachment of the hotel and shops in dispute and directed to give their possession to the receiver appointed. An appeal was preferred to the District Judge by the appellants herein, which was accepted. The respondents preferred a revision petition in the High Court against the order of District Judge which was accepted and the order of District Judge was set aside; and that of the trial Court was restored vide the order impugned in this appeal.
3. In support of appeal, it has been vehemently contended by Mr. Muhammad Ibrahim Zia the learned counsel for the appellants, that the shops were constructed by the father of the appellants in 1981 after the approval of the site plan by the Municipal Authorities and since then first the father of the appellants and after his death the appellants are running business in the hotel and shops.
He has also referred to the revenue record wherein the disputed property has been shown in the possession of the father of the appellants and thereafter in possession of the appellants. The learned counsel has argued that no temporary injunction was ever served upon the appellants, the story of violation of the interim injunction was concocted so as to achieve the purpose of illegal attachment of property in dispute. The learned counsel has argued that respondents have never been in possession of the property in dispute. The learned counsel has further submitted that even otherwise the hotel and shops in which the business is being run, cannot be attached, in view of the relevant provisions of law, inter alia on the ground that the respondents are not entitled to immediate possession of the property and thus no question of attachment arises.
4. Sardar Rafique Mahmood Khan, the learned counsel for the respondents, controverting the arguments advanced by the learned counsel for the appellants maintained that the possession of the suit property was forcibly taken from the respondents after the service of temporary injunction.
The learned counsel contended that the respondents derived their title on the basis of gift executed by their father and the appellants wanted to deprive them from their lawful right.
According to the learned counsel the judgment under appeal was open to no exception. The learned counsel for the respondents pressed into service the submission that appellants by their illegal act to dispossess the respondents from the suit land, despite the issuance of stay order and its due service on them provided justification of the order of attachment of suit property passed by the trial Court in order to preserve it from being damaged or alienated.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care it may be stated that the learned judge in the High Court while setting aside the order passed by the District Judge and restoring the order of the learned Sub- Judge made the following observations:- "(i) The fact remains that it is the petitioners (respondents herein) who approached the Sub-Judge for redress under law and it is the petitioners who in view of the alleged conduct of the respondents (appellants herein) applied for the attachment of the shops and hotel. The respondents do not claim that hotel and shops are constructed by them, and they have not disputed at any time, the gift-deed or possession of the land before filing of the suit by the petitioner;
(ii) To me it appears that nobody can just deprive himself of the property which is in his peaceful possession and have it attached unless there are compelling reasons and circumstances for it; and
(iii) The filing of the suit and the application for ad interim relief by the petitioners, the alleged conduct of the respondents of forcibly dispossessing the petitioners from Hotel and the shops, the filing of F.I.R. Against the alleged conduct of the respondents, and their immediately being forced to file the application for attachment of the property, hotel and shops were prima facie sufficient grounds for the Sub-Judge to pass an order of attachment of the property. The above-referred circumstances were sufficient to attract the provisions of section 94 and Order 40 of C.P.C. And it was just and convenient that the property in dispute should have been attached. The attachment of the property, in any case, is harsh to the petitioners, they are running the hotel and they have constructed the shops. Thus if there is any inconvenience or loss in attachment of property, it is the petitioners who are to suffer not the respondents."
6. The above-referred observations which were made basis for restoration of the order of the trial Court are either factually incorrect, against pleadings of the parties or in substantial in nature to attract the provisions of Order 40, Rule 1, C.P.C. It is absolutely incorrect to hold that the appellants herein never claimed that the shops and hotel were constructed by them. On the other hand the fact of the matter is that appellants clearly averred in their objections that shops and hotel were constructed by their father in year 1981 after the approval of site plan by Municipal Committee and the respondents never objected to raising of the construction of shops by the appellants and never interfered in their possession thereafter. The observation made by the learned Judge that nobody can just deprive himself of the benefits of the property .Which is in his peaceful possession and have it attached unless there are compelling reasons for it, also appears to be illogical. It cannot be said as a universal rule that the person in possession of the suit property would not get it attached unless there were compelling reasons, rather our experience shows that normally a person in possession of the suit property moves the Court of law for getting it attached if he feels the apprehension of it being wasted or damaged by the opposite-party. The alleged conduct of appellants of forcibly dispossessing the respondents from suit property and filing of the F.I.R.
Against appellants is also either lacking substantial proof or non-existent. It was taken for granted, without any cogent reason, by the learned Sub-Judge as well as by the learned Judge in the High Court, merely on the moving of application by the respondents, that they were forcibly dispossessed by the appellants from the suit land. The mere assertion in the application and the alleged report submitted by the process-server was insufficient in the eye of law to conclude that in fact the respondents were dispossessed by the appellants forcibly despite the service of temporary injunction on them. The report of process-server is vague in nature and it does not show in whose presence the appellants refused to accepts the service of summons. Even nowhere the process-server filed his affidavit in support of his report. Assuming for the sake of arguments the report of the process-server to be correct even then the same does not amount to legal service of the appellants as the same does not conform to the provisions of Order 5, Rule 17, C.P.C. Rule 17, Order 5 of the Code provides as under:- "Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgement, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed."
7. The above provision of law makes it abundantly clear that the safeguards have been provided to have a check upon the false reports of the process-servers. Similarly the alleged filing of F.I.R.
Against the conduct of appellants appears to be, factually incorrect as no such F.I.R. Was placed on record nor we have been able to trace it out despite our best efforts. From the order of attachment passed by the trial Court and upheld by the High Court it transpires that the learned trial Court was emotionally persuaded by the fact that the interim injunction issued by it was denied by the appellants. The learned trial Judge without satisfying himself with regard to the alleged defiance of the interim injunction, merely on the basis of the application moved by the respondents and after recording the statement of one of the respondents, deemed it appropriate to proceed for the attachment of the property.
8. In our view the material before the trial Court was insufficient in the eyes of law for passing an order of attachment of property as visualised under Order 40, Rule 1, C.P.C. It is indeed correct that under this Order the Civil Court is vested with wide powers to attach the suit property and to preserve it from the danger of being wasted or alienated but this power is to be used sparingly and under exceptional circumstances. The appointment of receiver has been recognized as one of the harshest remedy allowable under the code and it is allowed only in very exceptional cases. The party seeking appointment of receiver, therefore, has to show some emergency or danger or loss demanding immediate action. The principles for exercise of discretion have been laid down by the superior Courts. One of these principles is that the power of appointment of a receiver would be sparingly used. Another principle is that it would be exercised for the safeguard of the interest of all the parties as well as the property which is subject-matter of litigation. The third principle is that possession of persons bona fide in occupation of the property would not be disturbed unless there are allegations of wastage or dissipation of property or apprehension or irreparable loss or injury.
The plaintiff applying for the attachment of property must show, prima facie, that he has strong case and a good title of the property and also that defendant does not have a good title to the property.
9. When we see the case on the basis of above-stated principles of law there remains hardly any doubt that material placed before the learned Sub-Judge was insufficient to proceed for the attachment of the suit property. The appellants (defendants) in their objections unequivocally asserted that their father constructed the shops over the suit land in the year 1981 uninterrupted by the respondents and firstly their father had been in the possession subsequently the shops had been in the possession of defendants. Alongwith their objections the defendants placed a site plan of the shops duly approved by the Municipal Authorities, Muzaffarabad as the shops in question happen to be situated within the Municipal limits. The copy of Jamabandi attached with the objections reveals that the total acreage of the suit land is 4 Kanals 14 Marlas which is shown in the exclusive possession of Sher Zaman, the father of the appellants, while in column of ownership both Sher Zaman and Gul Zaman; the father of the respondents, happen to be the owners of equal shares who transferred their respective shares in favour of the appellants and respondents. In Khasra Gardawari of the year 1994-95, the suit land appears to be in the possession of Sher Zaman, the father of appellants, Gul Zaman, the father of respondents through his affidavit filed before the learned Sub-Judge admitted the claim of the appellants that the shops in question were constructed by Sher Zaman and remained in his possession. From the perusal of record it nowhere transpires that plaintiff/respondents had been running the shops in question, nor they alleged so in their suit. The application filed by the respondents for issuance of ad interim relief and for attachment of property wherein it was mentioned that in one of the shops a hotel was being run by them in the name of Latif Hotel is an assertion totally inconsistent with their pleadings in the original suit. In the suit no such plea was raised, whereas in favour of appellants/defendants one Abdul Latif has also filed an affidavit deposing and declaring therein that he had been running the business of hotel in one of the shops on behalf of the appellants. As regards the gift-deed executed by Gul Zaman, the father of respondents in their favour, the appellants have already filed a suit in the Court of Sub-Judge, Muzaffarabad, challenging the validity and legality of the said-gift deed. It is also pertinent to point out that Gul Zaman, the donor and Muhammad Rafique and Mazhar Iqbal sons of Gul Zaman, donees have admitted the suit filed by the appellants.
10. From the overall perusal of the' record in our view the material placed before the learned trial Judge with regard to the title of respondents and their possession over the suit property was insufficient for issuing the order of attachment of suit property and for appointment of receiver.
Similarly as stated somewhere in the earlier part of this judgment the material with regard to the alleged defiance of the stay order issued by the trial Court was also insufficient to attract the provisions of Order 40, Rule 1, C.P.C. It was enjoined upon the trial Court to niake some inquiry and to record some evidence showing the alleged violation of the order of the Court and then to proceed in accordance with law but the learned Judge in an undue haste passed the order of attachment of suit property causing inconvenience to the appellants.
11. For the aforestated reason we accept the appeal and set aside the impugned judgment recorded by. The High Court as well as that of the .Trial Court. As a result the order passed by the District Judge dated 26-11-1995 shall be restored and the learned Sub-Judge is directed to proceed with the suit in accordance with law.