1983 PLP 489 (CLC)

Kamal Azfar for Defendant No.

1. Mehar Hussain Mesawa for the Intervenor. Date of hearing : 14th February, 1982. This is an application under Order XL, rule 1 read with section 151, C. P. C. seeking permission to file suit against the receiver. Briefly the facts are that one Dr. M. Ishaq died on 8‑9‑1957 leaving movable and immovable properties in respect of which the above administration suit was filed. On 18‑11‑1963 the Official Assignee was appointed receiver who filed Suit No. 107/68 against the . Intervenors for possession of land bearing ,l No. G. R. W. 302, Garden E, West Lawrance Doad, Karachi. The suit was decreed on 9‑5‑1977. The Intervenors Nos. 5 and 6 filed appeal which was dismissed. It seems that in the year 1978 the Intervenors filed a suit in the Court of Senior Civil Judge, Karachi bearing No. 1143/78 for declaration that the power of Attorney dated 11‑12‑1947 is false and fabricated and that the sale‑deed registered on 23‑11‑1950 is null and void, permanent injunction was also sought restraining the Official Assignee and the owners to execute the decree raised in Suit No. 107/68. The Intervenors have alleged many facts to establish that the attorney who had executed the sale deed was acting upon a false and forged power 'of attorney as according to the intervenor the executor of power of attorney had died even before its execution. In paragraph 16 of the plaint copy of which has been filed by the learned counsel for the Intervenors it has been alleged that "cause of action arose at Karachi within local limits of P. S. Preedy and within the jurisdiction of this Hon'ble Court on 22‑6‑1974 when the plaintiff came to know that the said executant of Special Power of Attorney was not alive on 11‑12‑1947 when the said Special Power of Attorney was executed in favour of C. C. Pinto on the basis of which the sale‑deed was executed in favour of Dr. M. Ishaq." The learned Civil Judge has passed an order that as a receiver has been appointed by this Court suit No. 1143/78 cannot be filed without obtaining leave of this Court. In this background the Intervenors have filed this application. From the allegations made in the plaint it is quite obvious that during the pendency of Suit No. 107/68 the Intervenors had the knowledge that the power of attorney bad been obtained by fraud. This plea could have been raised in Suit No. 107/68 when the C. A. had filed it for possession of the said land. Although the suit was decreed on 9‑5‑1977 the Intervenors did not take any step to plead this fact to challenge the validity of the decree but waited till such time that all the remedies were exhausted. Suit, No. 114'3/78 was filed as a last resort obviously to delay the execution and frustrate the decree that had been passed. In the face of the averments made in the plaint which has been reproduced above the Intervenors have waited for about 4 years to pass before taking such an action. It is well‑settled that where a receiver has been appointed by the Court in respect of any property no suit against the receiver affecting that property can be filed without leave of the Court. Such leave can however be granted even after institution of the suit. It is, therefore, necessary that a person desiring to bring a suit against a receiver in his official capacity should obtain leave of the court by which he was appointed. There is no statutory provision requiring the leave of the court for filing such action but in Braja Bhusan v. Srischandra (AIR1918Pat.100=47 IC 719). Mullick, J., held as follows :‑ There is no statutory provision which requires a party to take the leave of the Court to sue a receiver. The rule has come down to us as a part of the rule of equity, binding upon all English Courts of Justice in the country. It is a rule based upon public policy which requires that when the Court has assumed possession of a property in the interest of the litigants before it, the authority of that Court is not to be obstructed by suits designed to disturb the possession of the Court. The institution of such suits is in the eye of the law a contempt of the authority of the Court and therefore the party contemplating such suit, is required to take the leave of the "Court so as to absolve himself from that charge. The grant of such leave is made not in exercise of any power conferred by statute but in exercise of the inherent power, which every Court possesses to prevent acts which constitute or are akin to an abuse of its authority." The Court will usually grant leave to sue a receiver in cases where bona fide claims are established but it does not mean that the Court should scrutinise the claim and give a judgment on it. Leave will be granted unless it appears clear from the application of the claimant that his demand has no legal foundation. Before obtaining leave the applicant should show a probable cause of action against a receiver. When on the basis of the petition and the facts that may be brought on record it becomes clear that the applicant has hardly any basis for his case, leave cannot be granted. Applying these principles to the present case it is clear that the Intervenors in spite of the knowledge did not raise the plea now agitated in Suit No. 107/68 which was filed by the O. A, and was decreed. Furthermore the intervenors have waited for about 4 years to see the final result of litigation and then to start fresh round of battle. Once the rights of the n parties have been adjudicated the courts will be very reluctant to reopen the dispute particularly when the intervenors themselves are guilty of negligence and latches. If the Intervenors had raised this plea in the suit or filed suit within a reasonable time perhaps the consideration might have been different. The application is therefore dismissed. K. M. A. Application dismissed.