1988 PLP 1567 (CLC)

This suit has been filed by the two plaintiffs, Aftab Ahmad Mufti and Mrs. Kishwar Ashraf, against the defendant, Mst. Seema daughter of Shaikh Mohiuddin, for possession in respect of property in suit being Plot No. 633‑C, Commercial Area, P.E.C.H. Society, Karachi, measuring 107 sq. yds. with a building standing thereon and for mesne profit and damages. According to the plaintiffs, the two plaintiffs and Syed Mufti Majid Ali are the children of Mst. Asghari Begum, who had purchased the Plot No. 633‑C, through a conveyance deed, registered on 20‑12‑1967 and thereafter her name was mutated in all the relevant records as the owner. According to the plaintiffs, Mst. Asghari Begum then got a multi‑storey building constructed on the said plot and from October 1969 started leasing out portions of the suit property to different parties. Mst. Asghari Begum died at Karachi on 11‑2‑1975 at the age of 70 years, leaving behind the two plaintiffs and Mufti Majid Ali as her legal representatives, according to the plaintiffs, and they became the owners of the suit property with the two sons acquiring 2/5th share and plaintiff No.2 Mst. Kishwar Ashraf 1/5th share in the same and the names of the 3 legal representatives were mutated in the records of P. E. C . H . Society after sanction of the Government of Pakistan. According to the plaintiffs, prior to her death, Mst. Asghari Begum was residing on the entire top floor of the suit property, known as 'Gulberg House' and she was also in possession of one tenement on the first floor No.F‑2(a) in which her son Mufti Majid Ali was running an office for the benefit of Mst. Asghari Begum and the rest of the tenements on the ground, first floor, second floor and the 3rd floor had been rented out to various tenants on different rents and the entire rent was being recovered by Mst. Asghari Begum for her personal use and benefits. It has been averred by the plaintiffs that at the time of death of Mst. Asghari Begum on 11‑2‑1975, both her sons were outside Pakistan and her only married daughter Mst. Kishwar Ashraf was in Karachi looking after Mst. Asghari Begum but then she also left for London where she is permanently settled with her husband and children. According to the plaintiffs, before going to London, Mst. Kishwar Ashraf locked the entire top floor as well as the office on the first floor alungwith all the furniture fittings and things and handed over the keys to Rana Anis Ahmad of Rana Agency, Allama Iqbal Road, P.E.C.H. Society, Karachi, but about the end of 1975 the defendant alongwith her children broke open the locks and doors on the top floor as well as the office on the first floor and took over illegally possession of these two portions falsely posing herself to be the wife of Syed Mufti Majid Ali and started illegally collecting the rents/premium/fixed deposit from all the tenants in the building According to the plaintiffs, as the plaintiffs and Mufti Majid Ali were out of Pakistan, no proper legal action could be taken against the defendant but in 1976 two reports in writing were sent from London to the Police Station in Karachi and when Mufti Majid Ali came to Karachi in 1984 he addressed a registered letter to the police Station and also to the I.‑G. Police. Then on 4‑10‑1984 Mufti Majid Ali alongwith two plaintiffs filed Civil Suit No.631 of 1984 against the defendant in this Court for declaration. Permanent injunction, ejectment and mesne profits and the said suit was allowed to be withdrawn with permission to file a fresh suit on condition of payment of Rs.5,000 as special costs. This order was passed on 7‑9‑1987. Costs of Rs.5,000 have been paid to the defendant. While the earlier suit was pending, on an application for appointment of receiver, this Court directed the defendant by order, dated 21‑10‑1984, to give details of the names and tenement numbers and monthly rent of those tenants from whom the defendant was receiving rents as well as the total amount received on account of rent and deposit and advance rent. Pursuant to the said order dated 21‑10‑1984, a statement of account dated 31‑10‑1984 was filed on behalf of the defendant in which the defendant had submitted that she had recovered rent amounting to Rs.3,00,488 with deposit amounting to Rs.1,16,

000. By order dated 9‑12‑1984 passed in previous Suit No.631/84, Nazir of this Court was appointed as receiver to collect all the arrears and future rents from the tenants of the property, but out of the amount so deposited, it was directed that the defendant would be entitled to withdraw a sum of Rs.1,000 per month as directed by the Family Court towards maintenance of the defendant and leer children in proceedings filed by defendant against Mufti Majid Ali as her husband. As observed earlier, the previous suit was withdrawn with permission to file a fresh suit. Thereafter, according to the plaintiffs, on 6‑7‑1987 Mufti Majid Ali gifted his 2/5th share in the property in favour of the two plaintiffs and according to the two plaintiffs they have become the sole and exclusive owners of the suit property. It has been averred by the plaintiffs that till November, 1984 the defendant had collected in all over a sum of Rs.10 lacs as rent and .deposit. According to the plaintiffs, the defendant has no right or interest in the property and as such the present suit was instituted on 28‑9‑1987. In the suit, C.M.A. No. 6261/87 has been filed under Order 4C. C.P.C. for appointment of a receiver in respect of the suit property. The application has been vehemently opposed on behalf of the defendant Counter‑affidavit and rejoinder have been filed. Defendant's case is that she is real owner of the suit property and the plot was purchased and building constructed on the plot with the money belonging to the defendant. According to the defendant, from the sale of her jewellery the requisite cash was made available and neither Mst. Asghari Begum nor Mufti Majid Ali had any resources to acquire and build the property. According to the defendant, at the request of her husband Mufti Majid Ali, the property was acquired in the name of his mother Mst. Asghari Begum and all along she had been in possession of the property and also recovering rent from various tenants without any hindrance from the plaintiffs or Mufti Majid Ali. She claims that she have 5 children from her marriage with Mufti Majid Ali who falsely disowned her as his wife. I have heard at length the arguments of Mr. Akhtar Mahmud, learned counsel for the plaintiffs and Mr. S.A. Samad Khan, learned counsel for the defendant. The case of the plaintiffs is that the property belonged to their mother Mst. Asghari Begum and after her death they and their brother Mufti Majid Ali became the owners of the property by inheritance and the property still stands in the name of Mst. Asghari Begum. According to the plaintiffs, the defendant has no right, interest or claim in the property, but she has been unlawfully recovering rent and taking deposits from the tenants and till now over Rs.10 lacs have been illegally misappropriated by her. According to Mr. Akhtar Mahmud, learned counsel for the plaintiffs, before filing the present second suit, Mufti Majid Ali gifted his 2/5th share in the property to the plaintiffs and as such the two plaintiffs are the sole and exclusive owners of the suit property. Learned counsel had also referred to the pleadings in the earlier Suit No. 631/84 and the affidavit of defendant filed in the Family Suit and the order of the Family Court. According to the learned counsel, contradictory stands have been taken by the defendant. Reference was first made to the affidavit of the defendant in Family Suit No.210/76 filed by 5 minor children of the defendant against Mufti Majid Ali before the Family Court, Karachi in which she had claimed that Mufti Majid Ali was the husband of the defendant and the plaintiffs in that suit were the children of Mufti Majid Ali, defendant. In that affidavit, the defendant had referred to a property of Mufti Majid Ali, stating that he had been receiving Rs.3,000 per month as rent from the various tenants and that he had run away to England deserting her and the children. Reliance had also been placed on the order dated 31‑10‑1977 of the Family Court in which it was observed that Mufti Majid Ali had admitted that Gulberg House (suit property) was owned by him. Then reference was made to the earlier Suit No. 631/84 wherein her first affidavit dated 21‑10‑1984, apart from taking legal pleas and certain other pleas, no plea was raised that the property belonged to the defendant and then in her second counter‑affidavit dated 18‑11‑1984, it was averred that Mufti Majid Ali purchased the plot in the name of his mother and the defendant was persuaded by Mufti Majid Ali to hand over her personal ornaments valuing about Rs.1,50,000 who after selling the ornaments invested the proceeds in constructing the house on the plot and Mufti Majid Ali had no means to construct the property as he was only a clerk in Caltex Company. It was also averred in the affidavit dated 18‑11‑1984 in the earlier suit by the defendant that Mufti Majid Ali had purchased the said plot in the name of his mother as Benami and he had assured the defendant that in due course, after taking no objection from his relations, he would transfer the house in favour of the defendant. Then Mr. Akhtar Mahmud referred to the plea taken in the present suit that the suit property had been purchased and constructed by her husband Mufti Wiajid Ali with the sale proceeds of defendant's personal jewellery and that her husband had persuaded the defendant to agree to have the property in the name of his aged mother to please her. In a nutshell the case of the plaintiffs is that they are the owners of the property and the defendant has no right or title in the same and she is in illegal occupation of the property recovering the rent and taking deposits from the tenants, whereby she has collected more than Rs.10 lacs and that the defendant has been taking contradictory stands in the different legal proceedings. According to Mr. Akhtar Mahmud in the circumstances a case for appointment of receiver has been made out. Mr. S.A. Samad Khan has opposed the receivership application submitting that the property belongs to the defendant and the same has been acquired and built up with the sale proceeds of the jewellery of the defendant. It was further submitted that right from the very beginning the defendant has been recovering rent of the different tenements after renting out the tenements to different tenants and this had been going on till receiver was appointed under orders passed in the previous suit filed in 1984 by the plaintiffs and Mufti Majid Ali. According to the learned counsel if the defendant was not the owner and the property belonged beneficially to Mst. Asghari Begum and after her death it came to the plaintiffs and Mufti Majid Ali, it cannot be believed that the owners would sit quiet for such a long period of 9 years from 1975 to 1984 without taking any action for possession of the property. It was further argued that the plaintiffs and Mufti Majid Ali had taken up the false plea that the defendant was not the wife of Mufti Majid Ali and the 5 children from the defendant were not the children of Mufti Majid Ali. According to the learned counsel the defendant is an illiterate woman with no one to help and guide her and she has been fighting alone battle against the plaintiffs and her husband Mufti Majid Ali and in that battle if she has made some incorrect statements, her case does not stand demolished. According to the learned counsel the affidavit of the defendant in the family suit does not refer to 'Gulberg House' the suit property but reference is to some other property and the observation in the order of the Family Court dated 31‑10‑1977 that, according to the defendant, "Gulberg House" belongs to Mufti Majid Ali is not based on any statement made by the defendant. It was submitted that the relief of appointment of receiver is an equitable relief and in equity no case is made by the plaintiffs. In support of the application for appointment of receiver, Mr. Akhtar Mahmud relied upon the following judgments:‑ (i) Roshan Lal v. Muhammad Afzal PLD 1949 Lah. 60 (ii) Motherwell Bridge Contracting and Trading Co. Ltd. v. Riaz Ali Khan PLD 1978 Kar. 1093 (iii) Muhammad Sadiq Butt v. Khalida Parveen P L D 1967 Kar.

645. On the other hand Mr. S.A. Samad Khan, laying emphasis on equitable nature of the relief relating to appointment of receiver, referred to the following reported judgments:‑ (a) Coburn v. Colledge (1897) 1 Q.B. 702. (b) Letang v. Cooper (1964) 2 A.E.R. 929. (c) Central Electricity Board v. Halifax Corporation (1962) 3 A.E.R. 915. (d) Ram Kishore v. Bairam Shah A I R 1978 Patna 210. (e) Noor Muhammad v. Ghulam Masih Gil P L D 1965 B.J. 1. (f) Muhammad Amin v. Mian Muhammad P L D 1970 B.J.

5. In P L D 1949 Lah. 60, Cornelius, J. (as he then was) observed that for the purposes of deciding whether or not a receiver should be appointed under Order 40, Rule 1, C.P.C., it is necessary to arrive at a conclusion whether such an appointment will be just or convenient. It was further observed that where the defendant in possession was a trespasser the plaintiff having a better claim makes out a case for appointment of receiver where the litigation was going to take several years to finalise. In P L D 1978 Kar. 1093, it was observed that Order 40, Rule 1, C.P.C. authorises the civil Court to appoint a receiver whenever it appears to be just and convenient to do so and the matter is, therefore, left to the discretion of the Court but this discretion is to be exercised according to the judicial principles and a Court cannot act outside this rule in the appointment of a receiver under Order 40, Rule 1, C.P.C. It was further observed that the petitioner has to satisfy the Court before he succeeds that it would be just and convenient to appoint a receiver and although these two words have not been defined, there is no dispute about the object and the purpose of the appointment of receiver and generally stated it is for the preservation of the subject‑matter of the litigation pending judicial determination of the parties thereto. In P L D 1967 Kar. 645, A.S. Faruqui, J. had observed that there are no specific conditions laid down for the appointment of receiver under Order 40, Rule 1, C.P.C., but before an interlocutory order under that provision is passed the Court has to go into the question whether passing of the interim order pending the decision of the matter is in the interest of justice and if not passed there was danger to property of likelihood of waste. In A I R 1978 Patna 210, it was observed:‑

"Whenever an application for receiver is made, it is generally an admitted position that the other side is in possession of the properties over which a receiver is sought to be appointed. As such it cannot be laid down as a proposition of law that a receiver cannot be appointed when one of the parties to the suit is found to be in peaceful possession of the properties in question. True, a Court should appoint a receiver only after being satisfied that the plaintiff has prima facie an excellent chance of success in the suit; there is some emergency or danger to the property demanding immediate action. But it is incumbent upon the Court to take into consideration all these aspects of the matter. The application for appointment of receiver can be rejected only when the Court is satisfied that in the facts and the circumstances of the case, it is not proper to appoint receiver. The application cannot be rejected merely on the ground that the defendant is in the peaceful possession of the property. Though appointment of receiver is one of the harshest remedies which the law provides for the enforcement of right, if it is shown that the interest of person seeking the appointment of a receiver is exposed to manifest peril a receiver has to be appointed." In P L D 1965 Baghdad‑u‑Jadeed page 1, Anwarul Haq, J. (as he then was) had observed that the relief of declaration or injunction being within the discretion of the Court, a party coming to Court with unclean hands was not entitled to the discretionary relief under section 42 of the Specific Relief Act, observing that he who comes into equity must come with clean hands. In P L D 1970 B.J. page 5, Justice Mohammad Afzal Cheema, J. (as he then was) observed that sections 42 and 56 of the Specific Relief Act deal with suits for declaration and injunction and both are discretionary and equitable reliefs. It was observed that the principle laid down in section 56 (j) of the Specific Relief Act rests on the maxim that he who seeks equity must do equity and should come with clean hands and the relevant provision which embodies this provision apparently appears to have been made only in regard to a suit for injunction, in a chain of judicial pronouncements, the principles had been equally found to be applicable to declaratory suits. It, therefore, follows that under Order 40, Rule 1, C.P.C., a Court will appoint a receiver of the disputed property if the Court reaches the conclusion that it is just and convenient to order so and to persuade the Court to reach this conclusion the plaintiff has to make out a prima facie case that he owns the suit property or has a substantial .interest therein which requires protection or preservation pending final determination of the rights of the parties in the suit and because of expected waste or peril to such property, the right or interest of the plaintiff cannot be protected or preserved without appointment of receiver. And an application for appointment of receiver under Order 40, Rule 1, C.P.C. is not liable to be dismissed merely for the reason that the defendant is in possession of the suit property‑‑generally the defendant is in possession. Mr. Akhtar Mahmud, learned counsel for the plaintiffs, is no doubt correct in his submission that prima facie the defendant has taken different pleas as regards her rights in the suit property and that it is an admitted position that the suit property has all along remained in the name of Mst. Asghari Begum, mother of the two plaintiffs and Mufti Majid Ali. It had also been argued on behalf of the plaintiffs that the defendant has falsely claimed herself to be the wife of Mufti Majid Ali, but in my view there does not appear to be any substance in this contention as prima facie `the finding that the defendant is the wife of Mufti Majid Ali and that there are five children out of this wedlock has attained finality. In the family suit an order for maintenance had been passed on the basis that the defendant is the lawfully wedded wife of Mufti Majid Ali and maintenance at the rate of Rs.1,000 per month by the defendant to the children was granted which order has attained finality. Mufti Majid Ali and then plaintiff No.l (his brother Aftab Ahmad) had also made attempts to challenge the claim by the defendant that she is the lawfully wedded wife of Mufti Majid Ali but such proceedings initiated by Mufti Majid Ali and plaintiff Aftab Ahmad were dismissed. The two plaintiffs in the present suit have pleaded that Mufti Majid Ali has gifted 2/5th share in the suit property to the two plaintiffs, and, therefore, the two plaintiffs have become the sole and exclusive owners of the suit property. It appears that the stand taken by the two plaintiffs that they are now the sole owners of the suit property is not free from difficulties. The plaintiffs have relied upon the pleadings in the family suit where, according to the plaintiffs, the defendant had averred that the suit property belonged to Mufti Majid Ali. In the family suit, admittedly a written statement had been filed by Mufti Majid Ali, in which he had in very clear terms taken up the position that he was the owner of the suit property namely "Gulberg House". In these circumstances, if the case of the two plaintiffs is accepted, the two plaintiffs would then be the sole and exclusive owners of the suit property and in case defendant's stand in the present suit is accepted, then she is the owner of the suit property though the property stands Benami in the name of Mst. Asghari Begum, but in case the plea that had been taken at a very early stage in 1976 in the Family Suit by Mufti Majid Ali is accepted, then the two plaintiffs cannot be the sole and exclusive owners of the suit property and at the most they could then claim 2/5th share in the property alleged to have been gifted recently by Mufti Majid Ali in their favour and the remaining 3/5th share in the property would still belong to Mufti Majid Ali, who is not a plaintiff in the present suit. For reaching the findings as to who is the owner of the property, evidence will have to be led by the parties. At this stage, however, it can be observed that the suit property stands in the name of the plaintiffs and Majid Ali and though Mst. Asghari Begum died over 13 years ago, no action has been taken by the defendant for getting a declaration that the property belongs to her and the stand taken by the defendant in the various legal proceedings has been shifting and the defendant has also recovered a substantial amount as rent and advances from the occupants of the suit property. And the defendant has not yet filed any document in support of her case that she had provided the finances for the purchase of the plot and for construction of the building thereon. Then in the earlier Suit No.631/84, which had been withdrawn with permission to file a fresh suit, by order dated 9‑12‑1984 receiver had been appointed. In the circumstances it appears to be just and convenient t appoint a receiver so as to preserve the suit property and also its income for the benefit of whoever is or are found to be the owners of the property. As had been noticed in the earlier Suit No.631/84, there is an order for payment of maintenance of Rs.1,000 per month to the defendant for the 5 children and although the said order was against Mufit Majid Ali, his link with the property cannot be said to be terminated finally on account of gift to 2/5th share in the property to the present plaintiffs as the question of ownership of the suit property will be determined finally when the suit is decided. I am, therefore, also giving a direction for the payment of Rs.1,000 per month to the defendant out of the rent to be recovered from the property. Accordingly the Nazir of this Court is appointed as receiver to collect all the arrears and future rent from the tenants and occupants of the suit property but out of the rents so recovered by the Nazir, the defendant will be paid a sum of Rs.1,000 per month subject to adjustment at the time of final hearing. It is further ordered that no tenancy will be changed without permission from this Court during pendency of this suit. C.M.A No. 4261/87 stands disposed of accordingly. M.B.A./A‑353/K Receiver appointed.