1. 1 and 2. This order will dispose of the applications for injunction as well as for appointment of receiver in respect of the Suit Property Shops Nos.4 and 5 situated on Plot No.91-C, Jami Commercial Street-II, Phase-VII (Extension), Defence Housing Authority, Karachi, which was purchased by the plaintiff and the defendant jointly. It is the case of the plaintiff that the defendant has dispossessed the servants of the plaintiffs, who are residing at Quetta and occupied both shops. It is the also case of the plaintiffs that Shop No.4 is in occupation of the defendant, whereas, Shop No.5 has been let out, two persons, Hotel Wala and Tandoorwala, on rental at Rs.12,000 per month and collecting the same, whereas, the case of the defendant is that the plaintiff by agreement has agreed to sell his share in the shop and also received some consideration, on account of refusal on the part of the plaintiff, Suit No.1339 of 1998 is pending in this Court. Injunctive order sought, for has been was refused by this Court.
2. The plaintiff seeks appointment of Nazir to collect the rent and also accounts from the defendant as rent. In application for injunction, it has been prayed that the defendant be restrained from creating third party interest. So far as the injunction application is concerned, the counsel for the parties have agreed that both parties be restrained not to create third party interest and to maintain status quo. The application (C.M.A. No.7481 of 1999) is disposed in the aforesaid terms that no third party interest be created by either party and both parties should maintain the present position.
3. So far as the appointment of receiver is concerned, the defendant is 50 per cent. owner of the property, and in possession, it would be the harshest step to dispossess him at this stage but in my view, in the circumstances of the case, when he is also enjoying the fruit of rental shop by receiving rent and second in his occupation, wherein he during the possession, it would be appropriate if the defendant is directed to deposit the rent received by him which would be the share of the defendant to the extent of Rs.12,000 to deposit the rent with Nazir of this Court monthly w.e.f. 1-1- 2000 within a month, and will continue to deposit monthly rent with Nazir by 15th of each month.
4. Nazir, on deposit, will invest the amount in Government profitable earning scheme. The plaintiff will not withdraw the amount. The ultimate successor in suit filed by the parties would get the amount.
5. The plaintiff will not receive or collect any rent from the tenant in occupation of the shops directly.
3. C.M.A. 2715 of 2000 has been filed by the defendant under section 34 of the Arbitration Act for stay of the proceedings and direction to the parties for reference to the Arbitration. This application has been moved and is listed for notice after filing of the written statement by defendants on 6-12- 1999.
6. Since the defendant has already filed written statement, the application itself is not maintainable and the same is dismissed.
7. Mr. Muhammad Hanif Kashmiri states that by consent of the parties the matter may be referred to the Sole Arbitrator nominated by consent of the parties for amicable settlement of the dispute.
8. Mr. Shamdas B. Changani, Advocate has stated that his.client is not ready and willing for arbitration through the Court.
9. The Court can refer. the matter for resolution of the dispute, to Arbitrator provided the parties are agreeable. In this case, the plaintiff is not ready and willing for the same and the defendant has missed the opportunity to invoke the provision of section 34 of the Act for stay of the suit and direction to the parties for reference to the Arbitration.