2007 PLP 1121 (MLD)

MAULVI ANWARUL HAQ, J.

On 24-1-1996 a suit was filed. According to the plaint, it was filed by Muhammad Yousaf son of Muhammad Siddique through his son and next friend Muhammad Shahbaz (respondent No.1 herein). It was filed against the appellant and respondents Nos.5 to

8. In the plaint, it was stated that Muhammad Yousaf is an insane person and the suit is being filed through his son as a next friend. Muhammad Yousaf had two wives. Mst. Anwar Begum bore him two sons, namely, Muhammad Shahbaz and Muhammad Ijaz respondents Nos. 1 and 2 while Mst. Sarwar Begum bore him a son, namely, Muhammad Usman appellant and two daughters, namely, Misbah and Uzma Yousaf. The said Mst. Sarwar Begum is dead while the remaining family is alive. Muhammad Yousaf had divorced Mst. Anwar Begum and her two sons were brought up by her. It was then stated that the said Muhammad Yousaf is in the custody of the appellant who started administrating some drugs causing injury to the brain of Muhammad Yousaf who was running a business in the suit shop in New Anarkarli, Lahore and an amount of Rs. 2 million stood invested and the daily income of the said business is from Rs.8,000 to Rs.10,

000. Then, there is a reference to a Suzuki FX Car and the amount of the Committee of Rs.4,80,

000. Gold and household furniture valued at Rs.2,00,000 is also in the custody of the appellant. The appellant in connivance with respondents Nos.5 to 8 forged a sale-deed, dated 29-6-1995 by playing fraud as Muhammad Yousaf was insane. The sale-deed was got registered. The appellant filed a suit for declaration against Muhammad Yousaf and obtained judgment and decree on 19-10-1995 with consent. An application under section 12(2), C.P.C. is pending. A declaration was accordingly sought that the registered sale-deed, dated 29-6-1995 is forged and fraudulent and the said plaintiff is the owner as also a decree for possession and restoration of business was sought. This suit was entrusted to a learned Civil Judge, Lahore. On 24-1-1996 he issued notices to the defendants in the case for 14-2-1996 and directed them to maintain status quo. On this date, it was noted that defendants Nos.1, 3, 4 and 8 were present and they filed their written statements and written reply. Notices were issued to defendant No.2 in the case. On 12-3-1996 it was noted that an application has been filed by Muhammad Yousaf plaintiff under Order VII Rule, 11 C.P.C. A copy was delivered and the case was adjourned to 1-4-1996. Two more adjournments were given for reply and on 15-5-1996 it was noted that the reply has been filed. Thereafter, the case was continuously adjourned for arguments on the said application till 25-6-1999 when it was reported that the said Muhammad Yousaf has died and an application was filed for bringing on record his LRs. Later, an amended plaint was filed wherein Muhammad Shahbaz and Muhammad Ijaz respondents Nos.1 and 2 were entered as plaintiffs while Muhammad Usman appellant, Misbah Yousaf and Uzma Yousaf son and daughters of Muhammad Yousaf were entered as defendants along with other defendants i.e. respondents Nos.5 to 8 already on record. On 8-4-2006 an application was filed by the respondents Nos. 1 and 2 for appointment of a Receiver. The application was contested by the appellant by filing a written reply on 22-5-2006. Vide order, dated 31-7-2006 this application was allowed and a Receiver was appointed.

2. Learned counsel for the appellant contends that the impugned order has been illegally passed without adverting to the settled principles as to appointment of a Receiver. According to him, there was no prima facie evidence that the deceased was an insane person at the relevant time. Learned counsel for the respondents No.1 and 2, on the other hand, supports the impugned order. Learned counsel for the appellant re-joins to press C.M. No.l-C/06 filed for condonation of delay in filing of the FAO. The other represented respondents also support the appellant while respondents Nos. 7 and 8 have been proceeded against ex parte vide order, dated 20-12-2006.

3. I will be attending to the matter of limitation first. The impugned order was passed by the learned trial Court on 31-7-2006. The copy was applied on 1-8-2006. It was prepared and delivered on 2-8-2006. The first appeal was presented in the Court of learned District Judge, Lahore, on 21-8-2006. It was entrusted, to a learned ADJ who took up it on the same day after the office report. The appeal was registered and after noting the contentions of the learned counsel it was admitted to regular hearing and notice was issued for 4-9-2006. The said order was suspended. The record was received and the respondents Nos. 1 and 2 put in appearance on 25-9-2006 when the case was adjourned to 11-10-2006. On this date, the note is that the learned Presiding Officer has been transferred. The case was ultimately taken up on 23-11-2006 when the records were examined and it was found that the value of the suit is Rs.11 million and the appeal was accordingly returned. It was presented in this Court on 24-11-2006. It is but obvious that the office of the learned ADJ as also the learned ADJ himself failed to take note of the said fact while the defect was also not pointed out by the contesting respondents after putting in appearance. It was noted by the learned ADJ himself on 23-11-2006 that appeal has been wrongly filed. To my mind, the case is fully covered by Sherin and 4 others v. Fazal Muhammad and 4 others (1995 SCMR 584). The delay is accordingly condoned.

4. I have gone through the trial Court records, with the assistance of the learned counsel, for the parties. I have already narrated above some details of the proceedings that took place before the learned trial Court. It is indeed shocking that the learned trial Court proceeded in the first instance to issue notice to the respondents without examining the plaint which was filed on behalf of a person through a next friend stating that he is insane. Needless to state that in terms of Order XXXII Rule 10, C.P.C. a person has to be adjudged as a person of unsound mind before further proceedings are to be taken in a suit filed on his behalf through a next friend. Not only this, the learned trial Court failed to perform the duties enjoined upon it by law even upon presentation of an application by the said Muhammad Yousaf deceased in person on 12-3-1996 stating that he is alright and the suit has been un-authorizedly filed. As noted by me above, the record gives the impression that this application filed on 12-3-1996 remained un-attended till such time that Muhammad Yousaf died on 4-4-1999 i.e. after more than three years of the filing of the said application.

5. In the said background, I have examined the impugned order, dated 31-7-2006 passed by the learned trial Court. The only reason stated is that a Magistrate conducted an inquiry under the orders of the District Judge, Lahore and reported that Muhammad Yousaf is a completely disabled person suffering from Paralysis and unable to listen anybody even to move. According to the learned trial Court in view of the said report, the execution of the document challenged in the suit becomes doubtful. Then there is a reference to a report of Forensic Expert that the signatures are not similar to the admitted signatures, registration of a criminal case and an offer made by the appellant to pay a sum of Rs. One million to the respondent No.1. After recording these reasons, he has proceeded to appoint a Receiver directing him to take over the affairs of the suit property and to start collecting rent and to deposit in Court to even the scale of justice.

6. A bare perusal of the impugned order' would show that the learned trial Court was not even aware of the primary conditions for appointment of a Receiver in a civil suit in terms of Order XL Rule 1, C.P.C. These conditions have been settled over a period of time consistently in judgments delivered by the Superior Courts of the Subcontinent and of Pakistan. It has been consistently held that the remedy provided in terms of Order XL Rule 1, C.P.C. by its very nature is the harshest .provided in C.P.C. The Superior Courts have always advised that the powers under the said provision of law are to be exercised sparingly and with utmost caution. The conditions referred to by me above are: (i) A Court is not to appoint a receiver except upon "proof" by the plaintiff that he has a prima facie chance of success in the suit; (ii) The plaintiff himself show a case of adverse and conflicting claims to the property; (iii) The plaintiff himself show some emergency or danger or loss demanding immediate action; (iv) A receiver shall not be appointed where it has the effect of depriving a defendant of a de facto possession as it will definitely cause irreparable loss; and (v) The conduct of the applicant is very much relevant. It has to be free from blame.

7. The learned trial Court has not at all adverted to any of the said conditions. This is a case where Muhammad Yousaf remained alive for about four years after institution of the suit on 23-1-2006. It was on 12-3-2006 that he filed an application making hue and cry that nothing is wrong with him and he is doing his business and has not authorized anyone to file the suit. This application either was not attended to or the Court was not allowed to attend to the same for more than three years when ultimately Muhammad Yousaf died. I have already noted above that it was the duty of the Court to examine the plaint and to conduct proceedings to adjudge Muhammad Yousaf to be a person of unsound mind as claimed by his son respondent No.1 who, in fact, had filed the suit himself claiming to be his next friend. No such proceedings were taken. The Court failed to do anything even when Yousaf tiled an application that he has not authorized anyone to file the suit and he is not of unsound mind.

8. It is a matter of record as stated in the said application, dated 8-4-2006 by the respondents Nos. and 2 themselves that earlier also they had filed an application on 13-5-2000. This application, in fact, was filed on 12-7-2000 and is available at page 261 of the trial Court file. Following are its contents:-- This application itself reflects on the conduct of the respondent No.1 and apart from the fact that it does not disclose any ground whatsoever for appointment of the Receiver.

9. Coming to the application filed on 8-4-2006 whereupon the impugned order was passed. In this application, it has been written that Muhammad Usman step-brother of the respondents Nos. 1 and 2 has murdered Muhammad Yousaf by administering poison; that a criminal case stands registered against Muhammad Usman on 30-11-2005 in connection with the said sale-deed; that the Forensic Science Laboratory has reported that signatures on the sale-deed are forged. It was then stated that Muhammad Usman has usurped goods in business worth Rs. 2 million. He has let out the shop at the rate of Rs. one lac per month and himself is also running business in the said shop earning Rs.50,000 per month. The prayer was as follows: To my mind, this application also does not disclose any grounds recognized by law for appointment of a Receiver. There is no allegation of waste. The learned trial Court also lost sight of the fact that it has proceeded to appoint a Receiver of a property which is not the subject-Matter of the suit before him. An examination of the record reveals that the said sale-deed challenged in the suit pertains to half share of the said shop. The remaining half share was stated to be transferred in favour of the appellant by his father through a Court decree which is stated to have been challenged separately under section 12(2), C.P.C. The learned trial Court, however, appears to be oblivious of the said fact apparent on the face of record.

10. I have also examined the amended plaint filed after the death of said Muhammad Yousaf wherein respondents Nos. 1 and 2 are plaintiffs and the remaining children of the said Yousaf are defendants. However, the same prayer has been repeated that was made in the original plaint particularly qua the possession. Even if the plaintiffs succeed in the suit ultimately, the validity of the very institution whereof is prima facie doubtful, the property would be treated to be that of Muhammad Yousaf who has died and the possession of the appellant will be that of a co-owner. Needless to state that a co-owner in possession cannot be dispossessed otherwise than by filing a suit for partition. The impugned order of the learned trial Court, therefore, is not only illegal but without lawful authority. The FAO accordingly is allowed and the impugned order, dated 31-7-2006 passed by the learned trial Court is set aside. However, the appellant shall furnish a security in the sum of Rs. 2 million to the satisfaction of the learned trial Court to secure the share of the plaintiffs in the case in the income/profits accruing from the suit property, if so, directed by the Court in appropriately constituted proceedings. This will be done within a period of 45 days from today. No orders as to costs.

11. The trial Court shall also take all steps to decide the suit within one year from the date of receipt of this order to be remitted to the learned trial Court along with the records. M.H./M-168/L Appeal allowed.