1986 PLP 1998 (MLD)

(b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.XL, R.1‑‑Appointment of Receiver‑‑Two receivers appointed to manage estate of Temple‑Statement of account not submitted for fourteen years‑‑One Receiver having shifted to another place replaced while remaining Receiver was directed to work under supervision of new Receiver and work under his directions‑‑Statement of account was ordered in he filed by Receivers within specified time. The defendant No.6 has filed this application praying that he or his nominee may be appointed as a Receiver of Swami Narain Temple Estate till the final disposal of the case. The present suit relates to management of Swami Narayan Temple Estate. The defendant No.6 has been impleaded in the suit, although the plaintiffs objected to his entitled to be a beneficiary of the estate under the Trust. The first order of appointment of Receiver was a consent order, dated 28‑7‑1972 in which two plaintiffs and one T.D. Raja were appointed as Receivers. Thereafter plaintiff No.1 resigned and ultimately vide order, dated 13‑12‑1982 in which the history of the case relating to the appointment of the Receivers of property has been set out. Jethanand son of Karamchand was appointed as 'co‑receiver with the plaintiff No.2 Teerathdas in respect of the Trust properties and the interim order, dated 12‑4‑1980 appointing Nazir as co‑receiver was recalled. The relevant and operative part of the order, dated 13‑12‑1982 reads as follows. "The two receivers namely, Teerathdas and Jethanand will now be co‑receiver to manage the Estate jointly; Henceforth, the bank accounts will be operated under the joint signatures of these two receivers. All moneys received by the Estate will be deposited in the bank accounts of the Estate and all expenses will be incurred on behalf of the. Estate by the two receivers acting jointly. The receivers will not transfer any tenancy in respect of any property of the Estate without prior permission of this Court. No construction shall be raised by the receivers without permission of this Court. The 'Dakhshana' box, which is lying sealed will be opened by the two receivers in the presence of the Nazir and the amount lying id the box will be deposited in the account of the Estate The box will again be sealed by the Nazir, and then placed in the Temple and after every three months, the box will be brought by the receivers to the Nazir of this Court and opened in his presence and the amount deposited in the account of the Trust and the box sealed again by the Nazir. The Receiver will, submit accounts of the Estate after every three months to the Nazir‑of this Court. Before submission of these quarterly accounts to the Nazir, the same will be verified and certified by a Chartered Accountant. If the Nazir finds any irregularity or discrepancy in the accounts, he can make a reference to the Court for orders." Before passing this order, dated 13‑12‑1982, by interim order, dated 12‑9‑1982 the Nazir was appointed co‑receiver and the plaintiff No.2 was directed to submit an up‑to‑date account to the Nazir. Accordingly to the plaintiff No.2 the account was submitted to the Nazir, but it was returned, as it was not in accordance with the order (Sassed by the Court After 13‑12‑1982 no account has been submitted. The plaintiff No.2 who was present in Court on querry made by me stated that he has not submitted the accounts in terms of the orders passed by the court on 13‑12‑1982, "Dekhshana Box" has not been opened since then, but according to the plaintiff it has remained sealed. The learned counsel for the defendant No.6 has cited several instances of change of tenancy and irregularity but they are repetition, of old allegations which have been considered several times and not accepted. The learned counsel for the defendant No.6 has stated that co‑receiver appointed on 13‑12‑1982 has also one away from Karachi and is not taking any interest in the management of the Trust. This fact has not been denied by any one Mr. Abbas, Zia the learned counsel has invited my attention to the order, dated 1‑6‑1983 passed after examining the Nazir whereby Commissioners were appointed to submit report on (1) amounts spent on the repairs of the property of the Trust by the Receiver, (2) change of tenancy rights between 28‑7‑1972 to September, 1982 and from 1st October, 1982 till 31st May, 1983, (3) Donation received from various sources, (4) the terms on which tenants were allowed to occupy any piece of land in the compound after appointment of Receiver in 1972 and (5) Encroachment made by any one. The Commissioners were to supervise the maintenance of the account by the Receiver till further orders. The Commissioners have submitted their reports which relate to the aforestated points and nothing has been stated about the statement of accounts. Mr. Syed Inayat Ali and Mr. Niaz Ahmad, Advocates were the Commissioners and they were paid Rs.2,000 p.m. each as Commissioner's fee. The object of referring to these developments in the suit by the learned counsel for the plaintiff was to show that the accounts could not be submitted as the Commissioner had been appointed. ‑The terms of appointment of Commissioners have been reproduced above. They were only to supervise the maintenance of accounts, but they were not required to maintain it which was the duty of plaintiff No.2 and he was also required to comply with the order, dated 13‑12‑1982 which had not been amended by subsequent order. The net result of the above discussion is that admittedly the plaintiff No.2 has not complied with the order, dated 13‑12‑1982 inasmuch as that till the hearing of this application he has not submitted the statement of accounts duly audited by a Chartered Accountant. No proper explanation for such breach of order and lapse committed by the receivers has been given by the plaintiff No.2 except that he had sent the accounts to the Chartered Accountant whose name he was not able to tell in Court. These are serious lapses in the discharge of duty as Receivers that not only they have failed to comply with the order in filing statement of account, passed prior to 13‑12‑1982, but even the order, dated 13‑12‑1982 has not been complied with. Receiver is duty, bound submit the statement of account as directed by the Court and also in discharge of his functions as Receiver. The plaintiff No.2 is at the helm of affair as a Receiver from 1972 onwards. Fourteen years have passed since he has been managing the Estate of the Temple but the fact that he has not submitted statement of account is a serious irregularity. The Co‑receiver appointed on 13‑12‑1982 does not take any interest in the management and discharge of his duties and according to the statement made at the bar he has shifted from Karachi' and is living at Mirpur Khas. In these circumstances, he cannot continue as a Receiver for name‑sake only. He is, therefore, removed from the receivership. The past history of the entire proceedings and the management of the Estate of the Temple is gloomy and tardy. It require to be cleaned up in a systematic manner and to start with, the statement of account in terms of order, dated 13‑12‑1982 should be filed by the plaintiff No.2 within a period of one month. In order to keep a check on the irregularities in the discharge of the duties as a Receiver, it is necessary to appoint some other independent person as a Co‑receiver so that the activities of plaintiff No.2 as a Receiver do not remain unchecked. In these circumstances, I appoint Mr. M. Zahiruddin Khan Bar‑at‑Law as a Co‑receiver. The plaintiff No.2 shall work under the supervision of this Co‑receiver. All the bank accounts shall be operated by both the Receivers jointly, but the accounts shall be maintained b the plaintiff No.2 under the supervision of Mr. M. Zahiruddin Khan. The management of the entire Estate of the Trust/Temple shall vest in these Receivers who will subject to this order be governed and comply with the order, dated 13‑12‑1982. A sum of Rs.2,000 p.m. will be paid to Mr. M. Zahiruddin Khan as Receiver's fee out of the funds of the Temple/Trust. The prayer of defendant No.6 to be appointed as Receiver rejected. He will, however, be entitled to assist the Receivers as a party to the suit. The question of removal of plaintiff No.2 shall be considered while deciding Civil Miscellaneous Appeal No.31 of 1983 which is still pending. The suit is now fixed on 22‑4‑1986 for hearing of all pending applications which may be ripe for hearing till that date, objection t the Commissioner's report and evidence of the parties. A.A. Order accordingly.