P L D 1997 Karachi 409 (PLP)

These applications have been filed on behalf of the plaintiff for appointment of receiver and for interim injunction respectively. The plaintiff's case is that the defendant was his wife and from the wedlock they were blessed with four (4) children. In 1974, on account of economic constraints, the plaintiff took up employment as Assistant Pharmacist in Saudi Arabia with a monthly stipend of Saudi Riyal 5,

500. According to the plaintiff, he worked there up to 1987 and remitted substantial money in the 'interregnum. It is averred in the plaint that in 1987, after return to Karachi, the plaintiff started 8 looms Silk Factory on Plots Nos.6-B, 64/65 measuring 240 sq. yards in the Industrial Area of Orangi Township, Karachi, hereinafter referred to as 'the subject plots'. The plaintiff claims that such factory was purchased by him from Central Engineering Works Karachi. It is further averred in the plaint that the plaintiff had additionally purchased two plots measuring 120 sq. yards each., from one Marghoobul Haq in the name of the defendant. `The teamed counsel for the plaintiff makes a statement at Bar that the reference in para. 5 to the plot of land measuring 240 sq. yards and the two plots of 120 sq. yards each purchased from Marghoobul Haq is in respect of the same land on which the factory to dispute is established and such plots bear Industrial Plots Nos.64 and 65 and are situated in Sector 6, Orangi Township, Karachi. Reverting back to the case of the plaintiff, it is further averred in the plaint that the consideration amount of Rs.1,50,000 was paid to the above-referred Marghoobul Haq. It is admitted in the very paragraph of the plaint that the original receipts and the sale-deeds dated 24-5-1980 in respect of both the plots are with the defendant. The original receipt, evidencing purchase of the looms, is also admitted to be with the defendant. However, an undated and unswom affidavit of the said Marghbobul Haq is filed alogwith the plaint to support the above-referred claim of the plaintiff. It is claimed that the plaintiff invested a sum of Rs.3,00,000 more, in raising construction, purchasing factory etc. It is additionally averred that the plaintiff had built a double-storeyed building on the subject plots. The plaintiff claims to have invested all his money in the factory in consideration of his love for the children and his wife the defendant. It is claimed that on 7-3-1993, the plaintiff had recieved/collected Rs.2,35,000 from different sources and kept the same with the defendant for safe custody but on the same day when the money was demanded back, the defendant became hostile which gave rise to difference and disputes between the parties leading to divorce of the defendant. It is further averred that during the attempts for reconciliation, the defendant instead of returning back the money, claimed another house bearing No.B-295, a Suzuki pick-up and the subject factory as her properties. It is further averted that on 25-10-1993 the defendant transferred tile above-referred house No.B-295, Block 11/B, North Karachi by way of gift to the plaintiff. and such property is now under the management of the plaintiff. In such background, the plaintiff has sought following reliefs in the suit. "(a) A declaration that the 8 looms factory constructed on Plots Nos.6-B, 64/65 Orangi Township alongwith a double-storeyed building with machinery and construction and other accessories with the shops is the property of the plaintiff. The so-called written agreement is void is not of any effect. (b) Be further pleased to declare that the defendant is only a Benamidar of the plaintiff in respect of the factory and Suzuki pick-up No.CH-8082. (c) Be further pleased to direct the defendant to hand over the possession of the factory as well as the Suzuki pick-up to the plaintiff and in case of refusal a decree directing that the possession of the factory and the Suzuki pick-up be passed against her directing her to hand over possession of factory and Suzuki pick-up to the plaintiff. (d) Pending the disposal of the main suit the Nazir of this Honourable Court be appointed as the administrator of the factory for administration of the factory and to take possession of factory and Suzuki pick-up. (e) Any other relief or reliefs which this Hon'ble Court deems fit and proper in the 'interest of justice." On behalf of the defendant, it is stated that the plaintiff did not have any means of income and was brought up by the faintly of the defendant and the defendant had started working to earn livelihood for herself and the family after coming over to this part of Pakistan a little before creation of Bangladesh. It is averred in the written statement that the subject factory, the house and the pickup were all acquired by the defendant out of her own earnings. The knowledge about the gift in respect of House No.B-295, 11-B, North Karachi is denied and it is claimed that some documents were got signed by the plaintiff under coersion and by practising fraud. The defendant has further averred that she is an educated lady and has been working to earn livelihood for herself and all the four children who are living with her throughout. For the purpose of the two applications which are listed today, it is urged by the learned counsel for the plaintiff that the receipts and the affidavit signed by the previous owner of the subject plots show that the plaintiff is the real owner of the subject property. In the affidavit in support of the application for appointment of the receiver, it is stated that if the management and ,the administration of the factory is not taken over immediately through appointment of receiver, the same would be destroyed resulting in total loss to the plaintiff. In the injunction application, it is stated that in the event of transfer of the subject factory and Suzuki pick-up, which also stood in the name of the defendant, the plaintiff would not be able to recover such properties. The learned counsel submits that the object of appointment of receiver is to preserve the subject property and its income, for payment to the party succeeding ultimately. In support of his submission, reliance was placed on judgment in the case of Aftab Ahmed Mufti v. Mst. Seema alias Zarina reported in 1988 CLC 1567. In the reported case, however, the property in dispute stood in the name of the plaintiff and the defendant had taken over possession and management thereof. Besides, the Court found that it was just and convenient to appoint a receiver. On behalf of the defendant it is stated that all the properties claimed by the plaintiff belong to her and she was not the Benami owner thereof. It is further stated on behalf of the defendant that the Suzuki pick-up had been sold before the institution of the proceedings. I have heard both the learned counsel and have perused the record. As to the receipts, copies whereof have been filed as Annexures 'C-1' to 'C-4', although in the plaint it is stated that the origmais are with the defendant on my query the originals were produced by the plaintiff from his file and shown to mc. These receipts shall be sealed in an envelope and kept with the Nazir in safe custody for consideration at the tune of evidence. The contents of the receipts also are not in conformity with the claim in the plaint inasmuch as the four receipts show that a sum of Rs.1,75,000 is acknowledged to have been received by the previous owner namely Shaikh Marghoobul Haq whereas the total consideration, according to the learned counsel plaintiff for the plots, was settled at Rs.1,50,

000. Quite surprisingly, both the learned counsel upon instructions of their respective clients stated that the sale-deeds dated 24-5-1980 were not preceded by any sale agreement whereas in the sale-deeds reference is made to sale agreement dared 13-5-19tsit. fndeed, no reliance can be placed on the affidavit filed as Annexure - alongwith the plaint which is neither sworn nor verified. However learned counsel for the plaintiff drew my attention to another affidavit titled as affidavit-in-rejoinder, presented in Court on 6-11-1'994 sworn 'by the same previous owner namely Marghoobul Haq which affirms the contents of the affidavit filed as.Annexure 'A'. However, such affidavit leaves a lot to be guessed about its genuineness and correctness. On behalf of the irial-till, the statements of account, pertaining to Saving Bank Account No.222g maintained with [National stank of Pakistan New Karachi Branch and Saving Bank Account No.6072 maintained with Habib Bank Limited, New Karachi Branch-, have been filed to show that the plaintiff had maintained such accounts regularly showing both credit and debit entries regularly. According to the learned counsel, huge amounts were repatriated from Saudi Arabia and credited into such accounts out of which the subject plots were acquired and developed by hire during his visits to Pakistan. The entries in the statements of account, however, do not substantiate the above contentions of the plaintiff. The various figures and the regularity with which the accounts appear to have been operated tends to show that the same were operated during the course of business with small deposits and withdrawals regularly. Moreover, both the accounts appear to have been regularly operated during the periods when, according to the plaintiff, he was out of country and are joint accounts of the plaintiff and the defendant. Such documents, therefore, do not lend any support to the case of the plaintiff. Another factor which requires to be considered is that an applicant for appointment of receiver has to make out a strong prima facie case enabling the Court to reach tentative conclusion to the effect that it is just and convenient to appoint receiver. Such requirement has to be met for the reason that appointment of receiver in civil proceedings is considered quite a harsh remedy since it amounts to disturbing possession during the pendency of the case and before evidence comes on record. In the present case, the subject plots, admittedly, stand in the name of the defendant and are in her possession at least according to the plaint since 7-9-1993. According to the learned counsel for the defendant, the various licences and permission for running the factory are in the name and in possession of the defendant who is also in possession of all the title documents. Another factor which is reflected from the record, is that after possession of the subject plot alongwith tire sunning factory was taken over by tile Nazir on 1-11-1994, the defendant, according to the Nazir, vas permitted to run the factory for some titre and she has already given accounts up to January, 1995. According to such accounts, the factory earned a net profit of Rs.2,009 during November 1994, Rs.1,992 during the month of December, 1994 and Rs.2.060 during January, 1995. The Nazir was permitted to appoint an Accountant and Chowkidar. However, complaints were submitted by the plaintiff and had committed theft and removed some tools from the factory premises. The factory itself, it is admitted had not been operating at all since May 1995. The closure of the business has, thus, resulted in loss of the business and the looms installed at the factory, if remain unattended and non operational are exposed to depreciation' in value apart from the natural decay. With the passage of-time, it is quite likely that the brims would become useless junk. The above discussion leads rite to the conclusion that the plaintiff, at the present stage, cannot be said to have made out a case much less a strong prima facie case to support his contention of being the real owner of the subject plots and the factory. thereon.. Yet another aspect which has to be attended is that for appointment of Receiver, a party must show that the property which is sought to be taken in custodia legis is in the imminent danger of waste. In support of such view the learned counsel for the defendant has referred to me Mst. Muhammad Bibi v. 113 Additional Settlement Commissioner, Khairpur reported in PLD 1976 Kar. 181; Salahuddin v. Rahim Bux PLD 1992 Quetta

59. In the present case, neither any material has been placed to show that the subject plots are in the danger of waste and malversation nor even an allegation is made to such effect. The defendant, I am informed, does not have any other source of income and has been i maintaining the four children out of stitching charges, she earns through sewing. It is pertinent to note that the factory which was earning some profit during its operation, has now become a still unit. The expenditure required for protecting factory from any pilferage is being met out of the amount of rent received by the Nazir from the four tenants of shops in portion of the subject plots. Thus, the appointment of receiver, through the interim order, has rather exposed the subject plots to wastage and non-utilisation. Admittedly, the purpose of appointment of Receiver is not merely to dispossess someone who has been in possession. Such principle is explicit from the provision contained in Order XL, Rule 1, C.P.C. and has been re-asserted in a recent judgment of a Division Bench of this Court in Begum Bushra Hyder v. Raja Ghulam Hyder reported in PLD 1997 Kar. 152 in which case the order appointing receiver was reversed in High Court appeal. In the circumstances, I do not find this a fit case for appointment of Receiver to deprive one party from possession and management of running business and the effect whereof is to put the other party in a position of advantage. As to the apprehensions of the plaintiff that the subject plots and the factory running thereon may be disposed of or encumbered 6y the defendant in case she is allowed to enjoy possession thereof, suffice to observe that such interest can adequately be protected by requiring the defendant to maintain regular accounts of the business and the income from the subject plots. Such accounts can be inspected by the plaintiff and in case of any discrepancies C therein, the Court can always be approached for appropriate remedial orders. On behalf of the defendant, statement is made by her counsel that the subject plots and the factory running thereon shall not be alienated or encumbered in any manner whatsoever during the pendency of the suit and without obtaining prior orders of the Court. In my view, the appropriate and equitable orders in the present case shall be to put the defendant back in possession of the subject plots and the factory thereon subject to terms. In the circumstances, the ad interim order dated 12-10-1994 is recalled, the Nazir, who was appointed receiver, is directed to hand over possession of the subject plots and the factory thereon back to the defendant from whom the possession was, admittedly, taken over. The defendant shall maintain proper and regular accounts of the income of the property and the business being run thereon; such accounts shall be submitted on quarter-yearly basis to the Nazir alongwith a copy for the plaintiff. The defendant before getting possession of the property, as above, shall furnish solvent surety in the sum of Rs.1,50,000 and personal bond in the like amount to the satisfaction of Nazir of this Court. The amount of security has been determined by me with reference to the approximate monthly income' expected out of the subject property which, according to both the learned counsel, can be around Rs.10,000 per month. The balance amount of money lying with the Nazir, forms part of the income of the subject property and the same shall also be paid to the defendant who may need initial funds for making the factory re-operational. Besides the learned counsel for the defendant, makes statement at Bar that the subject plots and factory thereon shall not be alienated, transferred of encumbered during the pendency of the case, except with prior order of this Court. The statement is duly recorded and any violation thereof shall be treated as violation of order of injunction., Both the applications listed today are disposed of, as above. ' - (1) The Nazir acknowledges that the defendant had submitted the accounts subsequent to filing of the reference. No orders are, therefore, required to be passed on this reference which has become infructuous. (2) This Reference has also become infructuous in view of the order passed on the Reference listed at Serial No. 1, today. (3) In view of the orders passed by me on the applications which were listed for hearing today, the Nazir does not press this Reference which is accordingly disposed of. (4) Both the learned counsel submit that they do not object to acceptance of the Reference to the extent of accounts as are stated therein. As regards, restoration of electricity, however, no orders are required to be passed. The reference is accordingly disposed of. (5) The accounts submitted through this Reference are accepted with consent of both the sides. However, the Nazir has claimed Rs.2,547 as Rent Collector's Commission. Such expenditure is not warranted in law being violative of Rule 86 of the Sindh Chief Court Rules (OS). Such amount should be credited to the balance available with the Nazir. Subject to above, the Reference is disposed of. (6) After hearing the learned counsel and upon perusal of the pleadings, the following issues are settled: (1) Whether the plaintiff is owner of the plots bearing Nos.64 and 65, Sector No.6, Orangi Township, Karachi alongwith the structure and business thereon and the Suzuki pick-up CH-8082? If so, to what relief the plaintiff is entitled? (2) What should the decree be? List of witnesses within seven days. Documents and application for Commission, if any, within one month. Both the learned counsel state, upon instructions of their respective clients, that evidence in this case may be recorded through Commissioner. By consent, Mr. Abdul Aleem Dareshani, Advocate, a retired' District and Sessions Judge, is appointed as Commissioner to record evidence. The Commissioner's fee shall be Rs.5,000 per witness payable by the party who summons such witness. The Commission shall be returned within four months from its commencement. Let letter of intimation be sent to the abovenamed Commissioner, forthwith by the office and the record be forwarded to him after the documents are filed, as above, by the parties. A. A./I-10/K Order accordingly.