2007 PLP 2204 (YLR)

C.M.A. No.4674 of 2005 MRS. QAISER IQBAL, J.--Through application under Order XL, rule 1, C.P.C. followed in suit for declaration specific performance, permanent injunction, possession and cancellation filed by the plaintiff against the defendants, the plaintiff has prayed for appointment of receiver in respect of Suit Properties bearing No.73-E, admeasuring 2 acres and 73-A, admeasuring acres situated at. K-28 Trans Lyari. Phase-II, Hawks Bay Road, District West, Karachi sought removal of the defendant No.3 from possession for the purpose of preservation as the same are likely to be wasted, mismanaged by the defendants Nos.2 and

3. Mr. Abid S, Zuberi has contended that the plaintiff had entered into a written sale agreement dated 8-7-1997 with the defendant No.2, paid substantial amount by 'way of full and final payment on the assurance that suit properties were free from all encumbrances and liens. Controversy arose when the plaintiff has resorted for mutation of the suit properties, defendant No.2 assured the plaintiff that mutation shall take place as the authority had imposed complete ban on any transfer. It is urged on account of promulgation of Sindh Urban State Land (Cancellation of Allotment, Conversion and Exchange) Ordinance 2000, suit properties were cancelled, the differential amount was required to be paid by the defendant No.2. It is urged that after the determination of the market value by the committee appointed under section 4(1) of the Ordinance acceptance of the offer was signed by the defendant No.2 in presence of the plaintiff. On 27-5-2005, defendant No.3 in collusion with defendant No.2 trespassed suit properties evicted the plaintiff's Chowkidar illegally and malafidely. For appointment of receiver it is inter alia contended that on account of existence of sale agreement and payment of entire sale consideration plaintiff has prima facie made out a case for preservation of the subject properties pending adjudication of the dispute. In case of Motherwell -Bridge Contracting and Trading Co. Ltd v. Riaz Ali Khan and others (PLD 1978 Karachi 1093) for appointment of receiver is enunciated as under: "Provisions of Order XL, rule 1 are very clear. It authorizes civil Court to appoint a receiver whenever it appears to be just and convenient to do so. The matter is therefore left to the discretion of the Court but that a Court cannot act outside this rule in the appointment of a receiver under Order XL, rule 1, C.P.C. Appointment of a receiver is the harshest remedy provided under Code of Civil Procedure. However, there is no generally stated it is for the preservation of the subject-matter of the litigation pending judicial determination of the rights of a receiver arrived at any final decision on the merits of the case. Its aim being merely to preserve the appointment of a receiver the petitioner must make out a prima facie case." It is evident that prima facie a dispute exists between the plaintiff and defendant No.2 in respect of the sale agreements execution, therefore, is denied by the counsel appearing for the defendants Nos.2 and 3, whereas the counsel appearing for the defendant No.2 has fairly conceded for the appointment of a receiver. It is well settled that receiver can be appointed suo motu by a Court or on the application. Prima facie a case is made out by the plaintiff for preservation of the disputed properties from being wasted as the counsel appearing for the defendant No.4 has contended that K-28, Trans Lyari, Phase-II, Hawks Bay Road, falls under the government scheme for establishment of Lyari Express Way. The application was not contested by defendant No.3, therefore, with the consent of the learned counsel appearing for the defendant No.2, Nazir is appointed commissioner to take over possession and management of the disputed properties with all powers to protect and preserve the same likely to be mismanaged. Commissioner's fee tentatively shall be Rs.10,000 which shall be borne by the plaintiff. This -arrangement will continue till determination of the issues involved in the case. C.M.A. No.4674 of 2005 stands disposed of accordingly. Interim order earlier passed shall continue till next date of hearing. Parties are directed to file proposed draft issued within two weeks. M.B.A.-/E-1/K Order accordingly.