P L D 1977 Karachi 217 (PLP)

By an order dated 9‑7‑1914, my Lord the Chief Justice had appointed the Nazir of this Court as a Receiver in regard to properties which are subject‑matter of the suit. The facts and back ground in the suit is stated in the first two paragraphs of the order of my Lord the Chief Justice and the same need not be repeated. The present position however, is that when the Nazir went to take possession of Hassani Ice & Cold Storage Co., Abigal Road, Karachi, he found one Abdul Hussain claiming possession of the said property. Resistance was offered to the Receiver from taking possession on the basis that Abdul Hussain had obtained lease in respect of the Ice & Cold Storage Co. from defendant No. 1 who had acted as an attorney of the remaining defendants as. well as of the plaintiff. Under such circums tances the Nazir has made this reference seeking directions of this Court.

2. Most of the facts are lucidly expressed in the order of my Lord the Chief Justice but I will only add that as early as in 1969, a miscellaneous appli cation bearing No. 1 of 1969 had been filed in the Court of 5th Civil Judge, First Class, Karachi. These proceedings arose out of disputes between the present parties. It seems that affidavits and counter‑affidavits were filed in these proceedings and some porticns of such pleadings have been reproduced in the affidavit of plaintiff Asghar Ali in support of the Nazir's reference. There has been no denial of such assertion as is contained in the affidavit of Asghar Ali and the significance of such assertion in the Affidavit of that in the proceedings before the Court of 5th Civil Judge in 1969, Abdul Hussain, defendant No. 1 bad stated that there was no power of attorney from the present plaintiff in his favour in regard to partnership business. In fact it was stated that all the partners have acted jointly and had carried on the business of the firm jointly.

3. Mr. Mubarak Hussain the learned Advocate for the intervenor Abdul Hussain, has raised the following contentions before me :‑ It is firstly contended before me that his client is a lessee in regard to the Ice Factory by virtue of a registered lease deed executed in his client's favour on 31‑5‑1974. Additionally it is contended that defendant Abdul Hussain has executed this lease deed as an attorney of the remaining three defendants as well as the plaintiff. The last contention of the learned Advocate is that should the plaintiff desire to dispute the genuineness or authenticity of the power of attorney executed by the plaintiff in favour of defendant No. 1, he has no other course but to file a suit for revocation of the instrument under section 39 of the Specific Relief Act.

4. Mr. Nomani the learned Advocate for the defendants has vehemently supported the claim of the intervenor and stated before me that the rights of the intervenor are so sacrosanct and protected that this Court has no option but to virtually recall the order of my Lord the Chief Justice in appointment of Receiver.

5. It cannot be overlooked in this case that intervenor Abdul Hussain has taken a deep interest in the litigation that has been pending between the parties since last 5‑6 years. I may in such context refer to an order of my learned brother Dorab Patel. J. in Suit No. 262 of 1973 wherein the present intervenor/lessee had sought to become a party. My learned brother expressed himself strongly against the conduct of the intervenor/lessee. The previous suit, namely. Suit No. 262 of 1963 was withdrawn by the plaintiff in that case, namely, Yousuf Ali ,(defendant No. 4 in the present suit) on 27‑5‑1974 After four days, defendant Abdul Hussain executed a registered lease deed in favour of the intervenor/lessee Abdul Hussain. It would seem that that suit was withdrawn only for the purpose of execution of this lease deed in order to circumvent the doctrine of lis pendens. It is inconceivable that within four days the parties should have arrived at an arrangement in regard to lease of the property in question, drawn up a document, presented the same for registration and executed the same. Regard being had to common course of events, much longer time would be necessary. What is more that intervenor/lessee Abdul Hussain had full knowledge In regard to the litigation that had been pending between the parties since a number of years. He himself took an active part in the litigation and is very closely related to the parties. What is more that when the application for appointment of receiver was heard by my Lord the Chief Justice on 4‑7‑1974, Mr. Nomani as well as Mr. Agha Imdad Ali who were appearing for the defendants in the suit thought it fit to withhold information in regard to this lease so that my Lord the Chief Justice at the time of passing the order of appoint ment of receiver was not even apprised of the fact that some rights or supposed rights of intervenor/lessee Abdul Hussain had come into existence. The omission according to me was meaningful.

6. Mr. Nomani has strenuously argued before me that the lease entered into between defendant Abdul Hussain and the intervenor/lessee Abdul Hussain is a perfectly valid lease because plaintiff Asghar Ali had executed ,# general power of attorney in favour of defendant Abdul Hussain on 15‑5‑1965 and such power of attorney enures. Para. 8 of the power of attorney reads as follows : "And generally to do, perform, transact and execute these and all other further necessary acts, things, deeds and matters concerning us whether specifically mentioned herein or herein the same manner and as effectually as we would ourselves do if personally present or attended, till partners unanimously revoke the power by public notice." A photostat copy of the power of attorney has been placed before me and I find that in the original document a full‑stop appears after the word "attended". Thereafter, the words "till partners unanimously revoke the rower by public notice" appear to have been added by typing these words in the document. The addition of such words is indeed very clear on a bare look of the document itself because the last word "notice" had been added in pars. 8 by putting a stroke mark after the word "public" when paras. 9 and 10 were yet to follow in the same document and had indeed been typed. This power of attorney, even if it is assumed that it was executed by the plaintiff, was revoked on May 6, 1969, by a notice given by plaintiff Asghar Ali through Mr. Z. U. Ahmad, Advocate. The relevant para. in the notice reads as follows :‑ "Our client, hereby revoke. rescind and withdraw all and every power given under any instrument of General Power of Attorney to Mr. Abdul Hussain Noorbhoy or any other partner and any act done or purported to have been done or intended to be done in future will be at the risk of all or any one of the above‑mentioned partners and our client shall under no circumstances be bound by such acts." Regard being had to all the circumstances, it is almost impossible to conceive that in spite of litigation pending between the parties since last several years, plaintiff Asghar Ali should still have chosen to retain Abdul Hussain as his attorney for management of the partnership property.

7. Without entering into the merits of this case it appears that although much more can be said. I am clearly of the view that defendant Abdul Hussain had no right or authority from plaintiff to lease Hussaini Ice & Cold Storage Company in favour of intervenor/lessee Abdul Hussain.

8. It has been contended before me that the receiver cannot resort to a summary method of obtaining possession of the property and the proper course for him was to file a suit. I am afraid I cannot agree with such a contention. Order XL, rule 1(b) gives the Court a power to remove any person from the possession or custody of the property. The words "any person" are indeed significant and would include a person who may have a right or pleads a right. The position seems to be anamolous by reference) to the provisions of Order XXI. rule 58 onwards which provide for summary determination of all objections of another person (including the owner) in relation to a property which is sought to be attached in execution of a decree. The effect in the present case is hightened because if a Court decides the question of an intervenor in a summary manner even though such intervenor claims the property as an owner, I see no reason why the question in regard to validity of a lease cannot be determined in a summary manner: Moreover, if the Mazir is to resort to filing a suit for possession in every case perhaps the main suit in which an order of appointment of receiver is made may be disposed of far earlier than the subsequent suit. I am therefore, of the view that this Court has the power of determining the question in regard to the claim of the intervenor/lessee in the summary manner.

9. In regard to the last contention that the plaintiff` has no remedy except filing of the suit as contemplated by section 39 of the Specific Relief Act, I am of the view that the contention is misfounded because that too will prolong litigation. In any case a Court has the power of looking prima facie at documents to arrive at its tentative conclusion even at an interlocutory stage.

10. Before I conclude the order I would like to refer to a further circumstance. The lease amount fixed between the patties to this lease deed is Rs. 1,200 per month. Mr. Wajihuddin, the learned Advocate for the plaintiff has placed before me copies of profit and loss statement of Hussaini Ice & Cold Storage Company which shows that for the assessment year 19‑11‑72 the net profit from this concern as disclosed to the Income‑tax Authorities by the defendants was Rs. 39.379.28. It would thus appear that this lease deed has been devised only to perpetuate waste of the property. 10‑A. In the result I direct the Nazir !o take possession of Hussaini Ice & Cold Storage Company forthwith and report compliance. S. A. H. Order according.