P L D 1965 (W (PLP)

J. H. Rehmatullah and M. Arfin for Defendants. Date of hearing: 1st March 1965. This is a suit for accounts of partnership between the brothers and their paternal uncles. Plaintiff and defen dant No. 3 are real brothers and are nephews of defendants Nos. 1 and

2. Plaintiff has alleged himself to be "practi cally blind since his birth." His case is that his grand father Muhammad Ismail was doing business at Calcutta a few years before Independence in 1947. A deed of partnership was executed on 12‑11‑1947 between him and his three sons, namely, defendants Nos. 1 and 2 and Muhammad Ishaque father of the plaintiff and defendant No. 3 and they were carrying on business under the name and style of two firms viz: "Muhammad Ismail & Co." and "Muhammad Ismail Muhammad Sadik". This partner ship, according to him, started another business of export and import at Karachi in December, 1947 under the same firm's name viz. Muhammad Ismail & Co. His father Muhammad Ishaque died on 31‑8‑1949 at Karachi but the partnership continued by the surviving partners along with the plaintiff and defendant No.

3. The latter attained majority in March, 1950 and he was introduced as a partner. Another deed of partnership, according to the plaintiff, 'was executed on 22‑4‑1950 and it purchased a Rice Mill at Kambar Distt. Larkana. His grandfather Muhammad Ismail died on 10‑8‑1952 but the partnership continued as before. This partnership started a Textile Mill at Khairpur. in 1955 and "all the capital invested in it was provided by the partnership Muhammad Ismail & Co. But defendants 1 and 2 have failed to give plaintiff and defendant No. 3 their shares in profits and have fraudulently formed and incorporated a private limited company under the name and style of Ismail Textile Mills Ltd. but the plaintiff and his brother defendant No: 3 have not been shown as share‑holders in this company. Proceeding further he has alleged that this partnership started a plant of Khandsari sugar at Chiniot District Jhang in 1960 under the name, and style of "Allied Sugar and General Industries Ltd." and its entire capital was, provided by the same partnership. He has then referred to a house in Chiniot and a residential plot in Nazimabad, Karachi, which also belonged to this partnership. In paragraph 17 of his plaint he has given the inventory of the entire property, assets etc. belonging to this partnership. In his application (Misc. No. 88/65) he had prayed for three reliefs: (a) appointment of receiver, (b) grant of tempo rary injunction restraining the defendants Nos. 1 and 2 from withdrawing any amount from the bank accounts in the name of (1) Muhammad Ismail & Co., (2) Ismail Textile Mills, and (3) Allied Sugar and General Industries, and lastly, (c) to order the Nazir of the Court to go to the office of these three firms and residence of defendants 1 and 2, seize all the books of accounts and other documents connected therewith and prepare an inventory thereof. Ad interim injunction was issued in respect of relief (b) while notices were ordered in respect of prayers (a) and (c). Thereafter Ismail Textile Mills Ltd. and Allied Sugar and General Industries Ltd. filed Appli cations Nos. 105/6 and 106/65 under Order XXXLX, rule 4 read with Order XXXVIII, rule 8 and section 151, C. P. C. Notices were ordered. Further applications (Nos. 112/65 and 113/65) were filed by them under section 151, C. P. C. All these. matters have now come up before me after notice. Main contention of the contesting defendants Nos. 1 and 2 is that the Textile Mills and the Sugar Factory do not belong to the original partnership. Their case is that both plaintiff and defendant No. 3 were employed by them and they have mis appropriated a sum of Rs. 76,000 and for the recovery of which they have filed a suit in this Court (No. 34/65). Lastly that no injunction could be issued against Ismail Textile Mills and Allied Sugar and General Industries Ltd. as they are not parties to this suit. They had requested for urgent orders permitting them to withdraw certain amounts from the banks in order to make payment to their labours and also in connection with purchase. This request was disposed of by me by an order dated 16‑2‑1965. They have furnished security in the sum of Rs. 50,000 but there after no request was made by them for the withdrawal of any amount for any specific purpose as directed in my order dated 16‑2‑1965. It is clear from the facts of the case, as shown in the plaint, that the capital invested in these two concerns belonged to the original partnership. This is denied by the two contesting defendants Nos. 1 and

2. There appears great substance in their arguments that the capital running into several lacs of rupees could not have been earned from this partner ship concern within such a short period. I find from the arguments advanced on behalf of the plaintiff that his case is based more on sentimental grounds rather than on merits. It was argued before me that plaintiff is practically blind by birth, that he and his brother defendant No. 3 are orphans, that they are not getting any share in the profit, that they have no source of income while defendants 1 and 2 were masters of all. These factors, if true, will not be taken into consideration for the purpose of granting reliefs stated above. It is under dispute that these two concerns viz. Textile Mill and Sugar Industries belong to the original partnership. On the other hand it was argued on behalf of defendants 1 and 2 that it was not conceivable nor it was possible that a capital of rupees 25 lacs (Textile Mills) could have been earned by this partnership concern within a short period of 5 months. Regard ing the Sugar Industries it was urged on their behalf that a company after incorporation is a separate, distinct and legal entity. Both these concerns are not party to the present pro ceedings. Suffice to say at this stage that plaintiff has failed to make out a prima facie case. Balance of inconvenience is in favour of defendants 1 and

2. All these concerns including the A two under dispute, viz. Textile Mills and Sugar Industries Ltd. are maintaining their account books and it is evident from the business sheet produced in Court. No irreparable injury would accrue in case this relief is refused to the plaintiff. Order XL, rule 1 applies if it is proved to the satisfac tion of the Court that it would be just and convenient. This phrase is not defined under the Code but it has been judici ally interpreted at different times by various High Courts. Appointment of a receiver has been recognised as one of the har shest remedy allowable under the Civil Procedure Code. A case reported in T. Krishnaswamy Chelty v. C. Thanga Vellu Chetty (A I R 1955 Mad. 430) has discussed the entire legal position as well as the Text Books on the subject‑matter. Sitaram Kundanlal and others v. Panalal Kundanlal and others (A I R 1957 Nag. 1) refers to circumstances and reasons for an appointment of an interim receiver. In a suit for partition. Next case referred to me by the plaintiff is reported in G. Ram chandrayya v. Nethi Iswarayya (A I R 1952 Hyd. 139). It refers to general principles for appointment of a receiver under Order XL; rule 1, C. P. C. Last case relied upon by the plaintiff is reported in Basant Ram v. Dasonathi Mal and others (A I R 1929 Lah. 497). It was held that in all cases where a property is in the hands of one co-sharer and the share of profits is withheld from the other there is, sufficient reason for appointing a receiver. In this particular case it is under dispute that the two concerns, i.e., Textile Mill and Sugar Industries belong to the partnership concern or not. In this connection defendants had relied upon decision reported in Mahmud Niaz Faruki v. Anaco (Pak.) Ltd. (P L D 1962 Kar. 71), E. B. M. Company, Ltd. v. Dominion Bank (A I R 1937 P C 279), and A. G. Khan v. Shujauddin Qureshi and others (P L D 1961 S C 6). I was also referred to two cases reported in L. D. Meston School Society v. Kishi Nath Misra (A I R 1951 All. 558) and Fakira Mahadaji Marathe v. Mst. Rumsukhbai (A I R 1946 Nag. 423). These cases are in respect of matters under Order XXXIX, rule

1. Injunction is a judicial order by which a party is required to do certain act or is prohibited and restrained from doing some other act. Its object is to maintain status quo. In the present case it would suffice to say at this stage that no prima facie case is made out either for issue of an injunction or for an appointment of a receiver. Accordingly prayers made by plaintiff in this respect are refused. Nazir is directed to prepare inventory of the account books in respect of partnership firms i.e., Muhammad Ismail & Co. and Ismail and Muhammad Sadik and submit the same within a fortnight. Ad interim injunction granted by an order dated 25‑1‑1965 is hereby vacated. All these applications are accordingly disposed of. S.A.H. Order accordingly.