2004 PLP 1825 (MLD)

S. ALI ASLAM JAFRI, J.- Through this appeal, appellant Muhammad Akram has called in question the order dated 7-5-2002 passed by a learned Single Judge of this Court on original side directing the appellant/defendant to deposit the amount of rent with the Nazir of this Court at the rate of Rs.4,000 per month from the date of agreement dated 29-8-1996 so also the monthly rent at the same rate on or before 10th of every calendar month. This order has been passed while deciding an application under Order XL, rule 1, C.P.C. For appointment of Receiver over the property in suit situated on Plots Nos.22-A and 50-A, Block-A, Qasimabad, Liaquatabad, Karachi. 2. The facts in brief are that plaintiff/respondent who are legal. Heirs/sons and daughters of late Ferozuddin filed a suit for administration, partition, declaration and injunction against the appellant/defendant No.2 and also impleaded their mother Mst. Muneera Begum as defendant No.1. According to the plaintiffs, defendant No.1 Mst. Muneera Begum who is their mother was not the exclusive owner of the property in suit and as such she had no authority to enter into any agreement for sale with defendant No.2 or to have conveyed/sold the said property to him, and the plaintiffs/respondents Nos.2 to 11 are entitled for their respective shares in the property in suit. They also filed an application for appointment of Receiver pending the decision of the suit. 3. Appellant/defendant No.2 filed his written statement denying the case as set up in the plaint and stated that he was a tenant of the premises bearing Plots Nos.22-A and 50-A. Block-A, Qasimabad, Liaquatabad, Karachi having been inducted by said Ferozuddin who expired having committed suicide on 6-6-1988. The said deceased had taken a loan during his life-time from National Bank of Pakistan, Qasimabad Branch, Karachi and a decree passed by the Banking Court was being executed against his legal heirs. Since the legal heirs had no means to repay the said loan hence the appellant/defendant No.2 was approached by them through their mother the defendant No.1. Appellant got liquidated the said liability and also paid an additional amount to defendant No.1 who. Sold the property in suit to the appellant/defendant No.2. He denied the plea raised by the plaintiff that defendant No.1 is insane lady and taking advantage of her insanity the appellant/defendant No.2 got the agreement of sale executed in his favour in respect of the shops which were with him as a tenant. It was further pleaded that defendant No.1 was now in collusion with the plaintiffs. 4. Contention of Mr. Attaullah Khan learned counsel for the appellant is that the learned Single Judge has erred in law while directing the appellant to deposit the rent at the rate of Rs.4,000 per month and for the period beyond three years prior to filing of the suit hence the order passed by the learned Single Judge is unwarranted in law. He has further urged that no case has been made out for appointment of Receiver. 5. On the other hand, it has been argued on behalf of respondents Nos.2 to 11 that no sale could take place in respect of the share of the minor and at the most defendant No.1 Mst. Muneera Begum could have sold her share or that of her sons and daughters who were not minors that too under a valid authority. 6. We have gone through the pleadings of the parties and the documents filed in support of their respective contentions. We have also examined the impugned order dated 7-5-2002. We are of the view that the discretion exercised by the learned Single Judge appears to be within the four corners of the well-settled principles of law and equity for appointment of Receiver in such type of cases particularly where the interest of the minors appear to be involved. However, we agree with the learned counsel for the appellant that the order needs certain modifications. By a short order dated 10-9-2002 announced after hearing the learned counsel for the appellant and the respondents, we have ordered for modification of the impugned order to the extent that appellant should keep tendering rent for five shops at the rate of Rs.666 per month for each shop and the initial deposit of arrears be also calculated at the same rate of Rs.666 per month the each for five shops for a period commencing from 3 years prior to the filing of suit instead of 29-8-1996. A period of two months was allowed to the appellant to deposit the arrears at the said rate for the said period. The appeal was, therefore, dismissed with the above modifications. These are the reasons for the short order announced, by us on 10-9-2002. H.B.T./M-107/K Appeal dismissed.