1. ' WAJIHUDDIN AHMED, J.---On 18-9-1995, the following ad interim order in this High Court Appeal was passed:--- "Mr. J.H. Rahimtoola says that copies of all annexures to the memo. Of appeal have not been provided. Let the needful be done within three days. Adjourned, by consent, to 27-9-1995 but till then the Receiver appointed by the learned Single Judge shall not take steps to dispose of the property though, at the same time, he may take action to complete the title in relation to the same."
2. ' Upon further hearing of the parties, on 27-9-1995, yet another order to the under-noted effect was passed:--- "2. Contention of the learned counsel for the appellant is that by appointing Receiver in the case the learned Single Judge has virtually decreed the suit inasmuch as in place of the machinery envisaged in the Agreement it would now be the Receiver who shall implement the Agreement in suit. In so far as the respondent No,1-plaintiff is concerned, Mr. J.H. Rahimtoola has stated before us that the plaint in the suit should be read as one whereby the plaintiff-respondent has shown his absolute willingness to honour his part of the contract under the Agreement in suit.
3. ' On our part we have noted that there is no express revocation of the Agreement from the side of the plaintiff-respondent No,1 and all that happened was that at one stage the respondent No,2, Dr. Mansoor Darr, who was assigned certain responsibilities under the Agreement, expressed his unwillingness to continue as the Agreement had remained unexecuted for a period of one year and as according to such Dr. Mansoor Darr, the plaintiff-respondent No,1 had been taking shifting stands. This apparently was followed by a revocation of the Agreement from the side of the appellant-defendant per letter dated 17-5-1993 (page 107). In this view of the matter where one of the parties to the transaction has rescinded the Agreement, rightly or wrongly no one knows at this stage, ex facie a Receiver to implement such an Agreement may not have been properly appointed.
4. ' We would, therefore, admit this appeal to regular hearing but no notices shall issue except to the respondent No,2 to whom notices would go in the ordinary course by registered post A/D and under certificate of posting. In so far as the respondent No,3 is concerned, who was the Receiver appointed by the learned Single Judge, there was no justification legal or otherwise to implead him as a respondent. We would, therefore, direct the appellant to forthwith delete the name of such respondent in red ink in presence of the Superintendent of the Branch.
3. Notice as above but ti'l the next date parties would maintain status quo except as regards their personal relations in the context of which a suit for dissolution of marriage is stated to be pending.
5. The Receiver appointed by the Court would abide by the order passed by us on 18-9-1995."
6. ' At this stage, we are informed that in Civil Petition No,587 of 1995, where the matter was taken by the respondent No,1, their Lordships of the Supreme Court observed that "the Receiver will not take any further step in the matter" with the result that since then the Receiver has stayed off his hands.
7. ' Taking up the controversy, while the learned Single Judge in the impugned order had recorded a contention of Mr. J.H. Rahimtoola for the respondent No,1-plaintiff "that since the parties have failed to abide by the terms and conditions of the settlement deed, the same is no more in existence", Mr.J.H. Rahimtoola has drawn our attention to a proceeding entitled "Submissions on behalf of the respondent No,1" submitted in this appeal on 25-9-1995, wherein it was maintained that "counsel did not say settlement was no more in existence as mistaken or misunderstood and mentioned in the order under appeal". What is more, it was recorded in the order dated 27-9-1995, reproduced above, that the respondent No,1-plaintiff fully subscribed to the substance of the entire agreement including that portion of it regarding which relief was sought in the suit. Indeed, it is inconceivable that a party would come to seek enforcement of a substantial term in an agreement and at the same time resile from it, saying that such had become inoperative. We are, therefore, constrained to conclude that there was some misunderstanding which led to the above observation of the learned Single Judge in the impugned order. Accordingly, we would act on the above-referred statement and undertaking recorded from the side of the respondent No, 1-plaintiff in this appeal.
8. As to the merits of the controversy, Choudhry Muhammad Jameel has contended that, in effect, the learned Single Judge, through the impugned order, has proceeded to decree the whole suit which itself was for an appointment of Receiver, in the final analysis, the Receiver to implement the agreement having been appointed at the interim level pursuant to the impugned order. In this view, nothing is left for trial. The learned counsel appears to be right and, on such basis, the relevant portion of the impugned order warrants recall and we recall it.
9. ' Yet another argument of the learned counsel for the appellant-defendant No,1 is that the other application before the learned Single Judge, namely that which was filed by the appellant- defendant No,1 seeking restraint against the respondent No,1-plaintiff (husband of appellant) from using the part of the house in his occupation, had remained undisposed of and may be adequately dealt with. It seems to us that in the context of the order of appointment of Receiver, the learned Single Judge, relative to such application, appears to have implicitly denied relief to the appellant-defendant. On our part, even though we have recalled the order of the learned Single Judge, as above, we also see 'no justification, even in the current state of facts, tc issue an order of restraint in the terms claimed because that, in effect, would amount to dispossessing somebody or at least curtailing the possessory rights of somebody who admittedly is in possession. Such kind of relief cannot be granted in this manner, moreso, when the controversy is alive and is being dealt with at the judicial level. This application, therefore, we expressly dismiss while disposing of this appeal.
10. ' The upshot of the above discussion is that the case would now go back to the learned Single Judge for decision according to law and such decision would be arrived at upon framing due issues on hearing the parties. That being done, as far as possible, the suit would be expeditiously disposed of because such is a controversy between a husband and a wife and apparently the peace of the entire family is at stake in the proceedings. Subject to the foregoing, the appeal is disposed of.