1. ' This appeal arises out of an order of the District Judge, Muzaffarabad, dated 22-2-1977 by which he appointed receiver of the suit property under Order XLI, rule 1, C. P. C. In order to appreciate the point involved in this appeal, it will be appropriate to mention the facts of the case. Mst. Bibi Khair- un-Nisa brought a suit for a declaration, perpetual injunction and possession pertaining to disputed property in the Court of Sub-Judge, Muzaffarabad. Plaintiff-respondent No, 1 asserted that the disputed property was left by Mehboob All Shah deceased, who died on 19-9-1965. Plaintiff- respondent No 1 is the real sister, Mst. Rehmat Begum, mother, Bunyad All Shah appellant, step- brother, Aulad All Shah and defendants 3 to 6 and 8, descendants of Muhammad Ashraf Shah, another step-brother of the deceased. Accroding to the plaintiff, the property devolved as one-half to the plaintiff-respondent No, 1, one-third to Bunyad All Shah appellant, one-third to Mst. Rehmat Begum, respondent No, 2 and one-third to appellants 2 to 7. The property in suit consists of lands, houses and shops situate in village Dhanni Syedan, Sund Gran and Domel, Tehsil Muzaffarabad. It is further alleged that there was a family settlement between the parties on the basis of which a private partition took place and the parties occupied the disputed property according to their shares. It may be mentioned here that both the parties have admitted, in their pleadings, the family settlement, on the basis of which the private partition took place. In the present suit, plaintiff- respondent No, 1 has asserted that defendant-appellant No, 1 has encroached upon Khasra No, 103 in ownership and possession of plaintiff-respondent No, 1 and occupied 8 marlas of land from this Khasra number. It is alleged that defendant-appellant No, 1 has occupied a house known as `Jumma Wala' situate in Khasra No, 115 belonging to plaintiff-respondent No,
1. The plaintiff- respondent has also alleged that defendant-appellant No, 1 has encroached in the passage passing alongwith Khasra Nos, 102, 103 and 114. Similarly, another passage passing alongwith Khasra No, 104 is alleged to have been encroached by defendant-appellant No,
1. Plaintiff- respondent No, 1 pleaded, that defendant-appellant No, 1 has no right to encroach and close the passage under use and occupation of plaintiff-respondent No,
1. The defendants-appellants have denied all the allegations in the suit of 'the plaintiffs-respondents.
2. ' In the present appeal the point involved is as to whether it is just and convenient to appoint a receiver for the entire estate left by Mehboob All Shah deceased or not? Plaintiff-respondent No, 1, after the institution of the suit, moved an application on 15-2-1975 for the appointment of 'a receiver of house known as lumma Wala' situate in Khasra No, 115 in village Dhanni Syedan, on the ground that defendant-appellant No, 1 has connived with the tenant in occupation of the house of plaintiff-respondent No, 1 and as such there was an apprehension of damage to the premises. The receiver was appointed by the Sub-Judge, Muzaffarabad on 16-2.1975. The plaintiff moved another application for the grant of temporary injunction to the effect that defendant-appellant No, 1 should be restrained from interfering in possession of the plaintiff-respondent No, 1 pertaining to the suit land and houses mentioned in para. 3, clause (a) of the plaint. It was further prayed that defendant-appellant No, 1 should not encroach and close the passage under use and occupation of the plaintiff-respondents. The interim injunction was issued by the Sub-Judge, on 16-2-1975.
3. After issuance of orders mentioned above, a number of applications were made by plaintiff- respondent No, 1 pertaining to the violation of interim injunction as well as appointment of receiver of disputed property, as a result of which the learned Sub-Judge,. On 8-6-1976, appointed receiver of a part of the disputed property. Against this order of the Sub-Judge both the parties went in appeal before the District. Judge, Muzaffarabad who, on 22-2-1977, modified the orders of the Sub- Judge, accepted the appeal of plaintiff-respondent No, 1, and rejected the appeal of defendant- appellant No, 1 and consequently appointed Collector of Muzaffarabad as a receiver of the entire estate left by Mahboob Ali Shah deceased.
4. ' The learned counsel for the respondents raised a preliminary objection that the present appeal is invalid and liable to be dismissed, on the ground that it was presented in the Court only by one of the appellants i,e, Syed Bunyad All Shah, appellant No,
1. His argument is that as the other appellants were not present before the Court at the time of presentation of this appeal, therefore, this appeal becomes incompetent as it shall be deemed as if appellants Nos, 2 to 7 are not a party before the Court. He further pointed out that at this stage, the appellant, even if impleads the appellants Nos, 2 to 7 as respondents, the appeal shall be time-barred to their extent and as such the present appeal, under no circumstances, would be maintainable.
5. ' Order XLI, rule 1, C. P. C. Deals with the presentation of appeals and it is reproduced below :- "Order XLI, rule, 1.-(1) Every appeal shall be preferred in the form of memorandum signed by the appellant or his pleader and presented to the Court or to such Officer as it appoints in this behalf.
6. The memorandum shall be accompanied by a copy of the decree, appealed from and (unless the appellate Court dispensed therewith) of the judgment on which it is founded."
7. ' This provision applied to the presentation of memorandum of appeal and the principle of law is that the appeal should either be presented by the appellant or a recognized agent or by his pleader. In the present case, the proposition is that when there are more than one appellants, whether the presentation of appeal by one of them would be sufficient and proper presentation on behalf of all, in the eye of law, or not? This proposition differs to the proposition wherein presentation of appeal or plaint, under Order III, rule 1, C. P. C. Is made by an agent or pleader under a defective, invalid or improper authority. The provision of presentation of appeal is synonymous to the provision of presentation of plaint in the Court. Order IV, rule 1, C. P. C. Is reproduced below :- "Order IV, rule 1.-(1) Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable."
8. ' Therefore, this proposition would be ascertained in view of the provision contained in Order IV, rule 1, and Order XLI, rule 1, C. P. C. In the present case, the memorandum of appeal is signed by the counsel of the appellants Nos, 2 to 7 whose Vakalatnama' is also attached with the memorandum.
9. The only, point to be considered is that what is effect of absence of the counsel of the appellants 2 to 7 at the time of presentation of the memorandum. Appellants 2 to 7 had the knowledge of the appeal and they had authorised their counsel to sign and present the memorandum in the Court.
10. ' In my view, when there are more than one appellants and the memorandum is signed by all of them, presentation of memorandum by only one of them personally or through an authorised agent or counsel would be a proper presentation. This is neither a formal defect nor irregularity.
11. The learned counsel for the appellants 2 to 7 has been regularly pursuing the matter in this Court.
12. This is a definite act which supports that A the memorandum was presented with the knowledge of appellants under their authority. Therefore, mere absence of the appellants or their counsel at the time of presentation of memorandum would not oust the jurisdiction of the Court and on this point, the appeal does not become incompetent. In Mohini Mohin Das v. Bungsi Buddan Saha Das (1), it was held :- "There three suits had been filed by one of three creditors, the others being named as co-plaintiffs with him in the plaints, which he alone had signed and verified. The record did not show that the other plaintiffs, who had omitted to sign the plaints or to verify them, had repudiated the suits. It does not appear from the judgment that they had given any express approval of the suits to the Court before the period of limitation had expired. The question was whether the other two plaintiffs must be considered to have been plaintiffs to the suits from the very beginning or from the date when certain orders intended to cure the defect were passed. Their Lordships of the Privy Council held that the other plaintiffs became parties to the suits from the time when the plaints were filed and that the suits were not barred by lapse of time. This, in our opinion, is a clear authority for the proposition that the absence of signatures or verification or, for the matter of that, the absence of presentation on the part of some of the plaintiffs out of several, does not affect the jurisdiction of the Court, and the suit must be deemed to have been duly instituted on their behalf if it was filed with their knowledge and authority."
13. ' This authority was followed by their Lordships of the Allahabad High Court in a case, Wall Muhammad Khan v. Ishaq All Khan (2). In this Full Bench judgment, Justice Suleman, Acting Chief Justice, observed that :- "Absence of signatures or verification or for the matter of that, the absence of presentation on the part of the some of plaintiffs out of several, does not affect the jurisdiction of the Court and the suit must be deemed to have been duly instituted on their behalf, if it was filed with their knowledge and authority."
14. ' In bibi Asghari v. Muhammad Qasim (1), Justice Narayan, J. Observed that,: "The absence of presentation of plaint on the part of some of the plaintiffs does not affect the jurisdiction of the Court and the suit must be deemed to have been instituted on their behalf as well, if it was filed with their knowledge and authority."
15. ' In a case, Mg. Karamnishan v. Mehrban All Shah (2), Justice B. Z. Kaikaus, J. Observed :- "The Civil Procedure Code does require that presentation should be by a party or a person authorised in accordance with Order III, rule 1, C. P. C. But it does not mean that in all cases, where the requirements of this rule are not strictly complied with, presentation of the plaint or appeal must become invalid so that the Court has no jurisdiction to hear the proceeding. Non-compliance with the provisions relating to presentation amounts only to an irregularity as does non- compliance with some other provisions relating to pleadings. . . . But the mere fact that an appeal has not been presented by a person who, at the time when he presented it, was not armed with written authority from the party, does not necessarily lead to a dismissal of the appeal."
16. ' In the case under discussion before the Privy Council, in all the three suits, the plaints were signed only by one of the plaintiffs and the names of the other plaintiffs were entered in the plaints and they had not signed and verified the pleadings as required under law. In spite of this defect which was cured much later, under the direction of the Court, it was held that the suits were maintainable on behalf of all the plaintiffs -and were considered to have been instituted from the date, originally presented in the Court. In Allahabad case, the proposition was that the suit was brought in the name of the plaintiff by his mother acting as guardian while in fact, he was a major and the suit was authorised and prosecuted by him in person. On an objection of the defendant that the plaintiff was a major in age and the plaint not being signed and verified by him, the suit was incompetent. It was held :- "The' defect in its form should be cured if it is due to a bona fide mistake. It was also held that the omission to comply with the provisions regarding the presentation of plaint is a mere irregularity and not the absence of jurisdiction, and if a person presenting is not properly authorised, the presentation would be irregular and the Court would then have the discretion to allow the irregularity to be cured or not."
17. ' Similarly, in Patna case, the proposition was that two of the plaintiffs had not signed the pleadings on account of their age factor. It was held: "That this defect was a mere irregularity curable under the permission of the Court."
18. ' In the case of Karamnishan, the appeal was filed in the Court of a Senior Civil Judge by mistake and on discovery of defect, the appeal was ordered to be returned to the appellant and a counsel who had no power of attorney from the appellant, received the memorandum and presented it in the
(1) A J R 1951 Pat. 323 (2) PLD 1959 Lah, 946 Court of District Judge. An objection was raised on behalf of the respondent that the appeal had not been properly presented. Justice B. Z. Kaikaus, J., after thoroughly examining the case-law, observed: "The defect was not fatal and does not entail the dismissal of the appeal."
19. ' The present case is not suffering from any one of defects which were found in the above- mentioned cases, rather it is on a much better footing. Therefore, this objection of the learned counsel for plaintiff-respondent No, 1 is rejected and it is held that the appeal was properly presented in the Court and it shall not fail for mere absence of the other appellants on whose behalf the memorandum was signed and verified by their pleader. As the objection is overruled, it is unwarranted to go into the points of limitation or invalidity of the appeal for non-impleading the necessary parties.
20. ' The learned counsel for the appellants challenged the order of the District Judge on the ground that the learned District Judge exceeded his jurisdiction by appointing a receiver for the entire estate left by Mahboob All Shah deceased. He stressed that there is nothing on the record to show that the defendants-appellants have caused any damage or waste to the property under dispute.
21. It is also argued that a receiver cannot be appointed in a suit for a declaration and perpetual injunction. It cannot be denied that the present suit is a suit for a declaration, perpetual injunction and possession and in order to ascertain whether in view of the circumstances and nature of the present case, a receiver can be appointed or not, Order XL, rule 1, C. P. C. Is reproduced below: "Order XL, rule 1.-(1) 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 the receiver; and (d)confer upon the 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 profits 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 fit.
(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove."
22. ' This rule authorises a Court to appoint a receiver whenever it appears to it to be just and convenient to do so. The primary consideration for a Court is to test the nature and circumstances of each case on the proposition :-
(1) Whether it would be just; and
(ii) convenient, to appoint a receiver for suit properties or not?
23. ' The rule does not specify a particular class of cases in which the Court may appoint a receiver.
24. Similarly, there is no classification as to on whose request, a receiver can be appointed. It is left only to the consideration, appreciation and judgment of the Court to appoint a receiver for a particular property under particular conditions and the only consideration before the Court should be that the action of the Court should be just. In order to ascertain whether it would be convenient to appoint a receiver, the Court has to consider the convenience of the parties as well as of the Court itself. The convenience of the parties would be ascertained in the manner to see that the realization or recovery of possession of the property under dispute would not cause hardship to the party from whom it is recovered as well as eventually its effect on the result of the case. It is also to be seen that the rightful owner is not deprived of the benefits of the properties. Similarly, the Court would consider the aspect of the multiplicity in litigation between the same parties.
25. In the present case, plaintiff-respondent No, 1 has sought a declaration to the effect- (i)that she being a true sister of Mahboob Ali Shah, is entitled to the suit land; and
(ii) on the death of Mahboob All Shah, there was a family settlement between the parties on the basis of which private partition took place and the suit land fell to the share of plaintiff-respondent No,
1. The defendants-appellants admitted in their written statements-
(a) that plaintiff-respondent No, 1 is a true sister of Mahboob Ali Shah deceased;
(b) there was a family settlement on the basis of which private partition took place between the parties and they took the possession of the respective properties which fell to their shares; and
(c) plaintiff-respondent No, 1 is in exclusive possession of the property except Khasra No, 114, the house known as `Jumma Wala' situate in Khasra No, 115 in village Dhanni Syedan and Khasras Nos, 1 and 2 in village Sund-Gran as well as the right of use of Ghels' (passages) as alleged in the plaint.
26. ' In the plaint, the plaintiff-respondent No, 1 has categorically admitted that the defendants- appellants have made improvements on the lands which fell to their shares and also that the appellants have constructed new hour in the suit land. This admission of the plaintiffs-respondents undoubtedly, helps to reach the conclusion that the suit property shown to be in possession of the defendants-appellants on the basis of the family settlement, is well protected and there is no apprehension of any waste or damage to theft same. Therefore, the provisions of Order XL, rule 1, C.
27. P. C. Are not attracted in case of the properties which are admittedly, within the nigh of the defendants-appellants, in their possession. Therefore, the learned District Judge was wrong to appoint a receiver pertaining to the propertie in possession of the defendants-appellants, admittedly belonging to them on the basis of family settlement. The learned counsel for the respondents argued that the family settlement and private partition on its basis has been denied by the defendants-appellants and according to him, a new partition has to take place and as such, subject to new partition, plaintiffs. Respondents and defendant-respondent No, 2 are entitled to every inch of the property left by Mahboob All Shah deceased. There is no dispute with the proposition that if the partition is not accepted by the parties, the the possession of every co- sharer shall be treated as possession of all and consequently, all the co-sharers would be entitled to their shares in the entire estate. But at present, this is not the case of the parties before the Court.
28. Therefore, without going into the details on the proposition of partition and jurisdiction of a civil Court in this respect, I leave this proposition here. As it is observed that the present case is not that of partition, it is not considered just and convenient to appoint a receiver of the property which is not in dispute.
29. ' In Lala Roshan Lal v. Ch. Muhammad Afzal (1), Justice Cornelius, J. Observed "For the purposes of deciding whether or not a receiver should be appointed, under 0. XL, rule 1, Civil Procedure Code, it is necessary to arrive at a conclusion whether such appointment will be just or convenient, and in the present case, the point relates more to the justice of the case than to the mere convenience of the Court and, therefore, it is necessary to reach a finding upon what might be described as the chances of the plaintiff's success."
30. ' As the Court is seized with the matters which are prayed in the relied of the plaint, it would be unjust and inconvenient to appoint a receiver for of law coupled with the proposition discussed above, would support my view that in view of the circumstances of the present case, it would be unwise and unjust to go beyond the disputed properties to appoint a receiver for the same. I do not agree with the argument of the learned counsel for the appellants that in a suit for a declaration the Court has no discretion to appoint a receiver. As observed earlier, there is no limitation on the powers of the Court except that it should be just and convenient to do so.
31. ' In M. Parial v. Bashir Ahmed (2), Justice Waheeduddin, J. Observed :- "As the terms of Order XL, rule 1 are very wide, in a fit case, even in a suit for a declaration and permanent injunction, a civil Court is competent to appoint a Receiver."
32. ' In Sharif Sultana v. Sher Muhammad Jan (3), Justice Ortcheson, J. Observed :- "It is settled law that the discretion vesting in a Court of appointing a receiver of property is to be sparing exercised, and one recognised principle is that before the possession of a party is disturbed, there must be an allegation of waste."
33. ' In Vanibai v. Republic of Pakistan (4), Justice Qadeeruddin, J. Observed :- "Appointment of receiver-Consideration-Whether it is . Just and convenient to appoint Receiver- Suit not for mesne profits nor for damages nor for compensation for use and occupation but merely for a declaration that plaintiffs were owners of land-Appointment of Receiver, held, rightly refused."
34. ' In the application of plaintiff-respondent No, 1 for appointment of a Receiver, the main allegation is that defendant-appellant No, 1 who happens
(1) PLD 1949 Lab. 60 (2) PLD'1957 Kar. 625
(3) PLD 1958 Lah. 288 (4) PLD 1970 Kar. 70 to be an influential person, connived with one Abdul Rashid, tenant-at-will of the plaintiffs- respondents living in the suit house known as lumma Wala' and ultimately took the possession of the said house. In addition to this, she also alleged that defendant-appellant No, 1 made encroachments in Khasra No, 103, in possession of plaintiff-respondent No, 1 and illegally occupied 8 marlas of land out of this Khasra number. She further alleged that one of the suit-Gehis (passages) was closed by the defendant-appellant and in another encroachment was made by constructing `Utt' in the 'Gehl'. These allegations of plaintiff-respondent No, 1 are supported by affidavits of her attorney, Syed Zain-ul-Abedin as well as spot inspection notes made by the Sub- Judge on 1-3-1975. In other applications, for appointment of Receiver, the plaintiffs-respondents alleged that defendant-appellant No, 1 has mala fidely forced the tenants of the plaintiffs- respondents to leave the houses and land belonging to the plaintiffs-respondents and as such the property of the plaintiffs-respondents may be wasted or damaged by the conduct of the defendants-appellants. Although, the defendant-appellant has denied the allegations of the plaintiff-respondent, nevertheless, the fact remains that the plaintiff-respondent apprehends the loss, waste and damage of her property. Moreover, by appointing a Receiver of the property of the plaintiffs-respondents as well as the suit property, no hardship or inconvenience is likely to be caused to the defendants-appellants. Therefore, I feel it just and convenient for the appointment of a Receiver.
35. ' The orders of the Courts below are modified in view of the above discussion, and it is held that the District Collector. Muzaffarabad shall be appointed as a Receiver of the lands and houses including Khasra Nos, 103, 104, 114 and a house in Khasra No, 115, 2 `Gehls' mentioned in the plaint situate in village Dhanni Syedan as well as the land comprising Khasra Nos, 1 and 2 in village Sund-Gran. The Receiver shall manage, protect and control the properties. He shall keep accounts, meet expenses and render all necessary services in this respect till further orders.