1. By this application under Order 40, rule 1, C.P.C. Plaintiff seeks appointment of a receiver with respect to shop No,G-3-G-K-7/88 (half portion) measuring 77.33 Sq.Yds at Molji Street Kharadar, Karachi (hereinafter referred to as the said shop). According to the plaintiff he was dispossessed from the said shop at about 7-00 p.m. On 5-6-1996 by use of force by defendant No,2 with the help of his armed accomplices by breaking open the lock of the said shop that was in possession of the plaintiff as a tenant for the past 25 years. During the period of tenancy rent was received by Mst. Sakina Begum since 1984 to June, 1985 after expiry of her husband late Mirza Riazuddin, the original landlord. On receipt of legal notice by the remaining heirs of the deceased landlord, plaintiff with a view to avoid default deposited the rent in Miscellaneous Rent Case No,106 of 1986 in the Court of III (South) rent Controller at Karachi. On failure to arrive at settlement through negotiation plaintiff instituted the present suit, Additional prayers with respect to an alleged sale of the said shop and handing over physical possession through a possession note came on record after an application under Order 1, rule 10, C.P.C. Was moved by defendant No,6 (C.M.A. No,4306 of 1997). Plaintiff denied the execution of any documents or handing over the possession of the said shop to any of the defendants and an amended plaint to seek further relief for cancellation of the sale-deed and possession note on grounds of fraud.
2. Plaintiff has placed on record photo copies of the following documents relevant to prove his possession and the subsequent sale of the said shop fraudulently:-- (1)Telephone Bills marked. -- 'P'
(2) Electric Bills marked. -- 'Q'
(3) Payment receipt of Mst. Sakina Begum marked. -- AL-A3
(4) Legal notice dated 21-11-1985 marked. -- 'B'
(5) Reply of legal notice dated 2-12-1985 marked. -- .'C'
(6) Copies of the rent/bank receipts, challans marked.-- 'D1-D13'
(7) Complaint to S.D.M. marked. -- 'D-14'
(8) Forged sale-deed marked. -- 'F'
(9) Illegal Rectification deed marked. -- 'F' In the counter affidavit filed by defendant No,6 it is stated that his father was the owner of the shop at the rare of the said shop and bearing No,G-4-G-K/7/88 that was let out on rent were tenants. On 1-7-1996 when he went to collect the rent of this shop he found the shop was joint with the said shop and occupied by three or four persons.Claiming to be the owners after purchase of the shop from defendant No,2 with vacant possession and as a single unit of property. Defendant No,6 claims to have entered into further negotiations on the strength of documents in possession of one Muhammad Anwar to the effect that plaintiff had surrendered his tenancy rights in favour of defendant No,1 on 17-7-1995. After publication of a notice Muhammad Anwar had purchased the said property from defendant No,2 through a Regd. Sale-deed dated 6-8-1986. Heard the learned counsel, Mr. Khawaja Shamsul Islam in support of his contention has referred to the Telephone and Electricity Bills with respect to the said shop in support of the plaintiffs claim for possession. He has also pointed out that in view of the fact that the shop was lying locked, there was no consumption and use of these utilities but the bills were being received and paid by the plaintiff who was in physical possession and occupying the said shop. Use of force and the execution of fraudulent documents to cover the illegal act, mala fides on the part of the defendants are spelled out and the property is likely to be wasted and materially altered if the rights of the plaintiff are not safeguarded by appointment of Receiver. In support of his contention he has placed reliance on the following cases:--
(1) Muhammad Rafique v. Muhammad 1989 CLC 1318.
(2) Mst. Hamida Mullick v. Syed Mushfiq Ali Zaidi 1990 MLD 325.
(3) Siraj Din and another v. Additional District Judge, Faisalabad and others 1991 MLD 1046.
(4) Maqbool Hussain v. Haji Muhammad Ashraf 1991 MLD 1134.
(5) Nawab Haji Muhammad Dawood Khan and others v. Muhammad Usman Ghani and others 1985 CLC 2309.
(6) Messrs A.R. Muhammad Siddique v. The Saifee High, School Board, 1983 CLC 507.
(7) Riaz and others v. Razi Muhammad 1982 SCMR 741.
(8) Sikandar and 2 others v. Muhammad Ayub and 5 others PLD 1991 SC 1041.
(9) Fazal Muhammad v. Muhammad Usman PLD 1970 Lah.560.
(10) Ghulam Rasool v. Muhammad Waris Bismil 1994 MLD 527.
(11) Riaz and another v. Razi Muhammad PLD 1979 Kar.227.
(12) Muhammad Yaqoob and others v. Ghulam Muhammad and others 1981 CLC 654.
(13) Aijaz Mehmood v. Shaikh Muhammad Jamil and others 1996 CLC 1027.
(14) Farooq Ali Chughtai v. Fazlur Rehman and 3 others 1998 MLD 90.
(15) Government of Pakistan through Ministry of Finance v. M.I. Cheema, Deputy Registrar, Federal Shariat Court and others 1992 SCMR 1852.
3. Mr. Siddiq Mirza, learned counsel for the defendant N'o.6 has vehemently opposed this application after referring to the electricity and telephone bills showing no consumption or use, learned counsel has argued that the shop was lying closed and as such plaintiff was not in possession of the said shop. His next contention is that after the amendment of the plaint, additional reliefs are added and as such the suit seized to be one under section 9 of the specific relief Act. He contended that the suit filed by the plaintiff as tenant objecting to the transfer of property by sale is not maintainable is held in M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54, Azhar Wali and others v. Bell Hellicopter, and others 1987 MLD 1337. To the extent of the protection of the interest of the plaintiff who claims to be the tenant of the said shop. Reliance is placed on Iqrar Muhammad Siddiqi v. Mst. Shahid Zareen PLD 1997 Kar. 409 and Muslim Commercial Bank Limited v. Panama Trading Co. (PVT) Ltd. 1998 MLD 1844 and this application is liable rejected.
4. On perusal of the documents and the record, the first objection that the suit filed by tenant challenging the validity of the sale and transfer of the property is not maintainable. There is no cavil with the argument that the plaintiff is not entitled to object to the same. Nevertheless the cause of grievance in the present suit is the execution of alleged document of handing over vacant possession of the said shop by the plaintiff to the landlord and has been challenged as a fraudulent document. I am of the humble view that the alleged document pertains to the valuable right of possession of a tenant and the suit challenging such document on ground of fraud instituted by the plaintiff is maintainable. There is prima facie evidence showing possession of the shop by the plaintiff in the form of electricity and telephone bills. The position is not effected if the said shop was lying locked over a certain period. The rent is said to be deposited in Court regularly. The plaintiff is entitled to appropriate interim relief. The case-law cited by the learned counsel for the defendant is distinguishable and would not apply to the facts of the present case instituted by the plaintiff challenging his dispossession without due process of law and further challenging the execution of the alleged document for handing over of physical possession on ground of fraud. In view of the conduct of the parties appropriate measures to safeguard the interest and to prevent the property from being wasted or creation of a third party interest are required. The two shops are distinct properties and situated on different plots having different numbers and there is no difficulty in identifying the same. Accordingly the application is allowed and the Official Assignee is appointed as Receiver of the said shop to take all necessary steps to secure and to seal the same. Tentatively the fees of the Official Assignee is fixed at Rs,10,000. The matter may now be fixed for settlement of additional issues, proposed issues may be filed in the meantime.