2009 PLP 42 (CLC)

NADEEM AZHAR SIDDIQI, J.

Office has reported that the defendant No.11 has not filed written statement since 25-1-2008. This suit is for specific performance of contract. From perusal of the contents of plaint it appears that the said defendant is a pro forma defendant and has nothing to do with the dispute in hand. It also appears that the defendants Nos.9, 11 and 12, who are all official defendant, have also nothing to do with the controversy and they were merely impleaded as party to the proceedings for the purpose of implementation of the judgment and decree which may be passed in this matter. For the Purpose of implementing the judgment and decree the presence of official defendants are not necessary as they are bound to implement the judgment and decree which may be passed in this matter. In view of the above, the defendants Nos.9, 11 and 12 appears to be neither necessary nor proper party to the proceedings and no purpose will be served by declaring defendant No.11 as ex parte, hence the names of defendants Nos.9, 11 and 12 are struck off from the array of defendants. This exercise will be done by red ink.

2. By this application the plaintiff has prayed that interim injunction order granted on 3-1-2008 may be allowed to be extended. By consent of the learned counsel for parties and in view of the judgment reported in 1999 SCMR 2215 this application is allowed as prayed.

3. By filing this application the plaintiff has prayed for appointment of the Nazir as Receiver to take over the possession of the suit property, The claim of the plaintiff is that he has entered into an agreement dated 4-5-2005 with the defendants Nos.1 to 5 for purchase of the suit property against sale consideration of Rs.3 crore, out of which Rs.2,40,00,000 have been paid by the plaintiff to the defendants Nos.1 to

5. Learned counsel for the defendants Nos.1 to 5 states that the defendants Nos.1 to 5 have denied any execution of the sale agreement in respect of the suit property with the plaintiff and receipt of any sale consideration from him. She has, however, accepted that the defendants Nos.1 to 5 have entered into an agreement to sell in respect of the suit property with the defendants Nos.6 and 7 and have received sale consideration and the possession was delivered to the defendants Nos.6 and

7. Learned counsel for the defendants Nos.6 and 7 submits that the question of appointment of receiver does not arise as the property is in possession of the lawful bona fide owner of the property and they cannot be dispossessed unless the plaintiff establishes his right over the suit property. In rebuttal Mr. Abid Feroz states that the defendants Nos.6 and 7 are not the bona fide purchasers as they have not paid the full sale consideration as evident from the plaint in Suit No.1307 of 2006. This rule authorizes the Court to appoint a receiver wherever it appears to be just and convenient to do so. From the perusal of the provision it appears that the appointment of receiver has been left to the discretion of the Court. The principles laid down in various pronouncements are that it should be used sparingly, it should be exercised to safeguard the interest of all the parties as well as property which is subject-matter of the litigation and possession of person bona fide in occupation of property should not be disturbed. Before passing order under this rule the plaintiff has to 6 make out a prima facie case that he owned the property in question or had a substantial interest in the same which required protection and preservation pending final determination of the rights of the parties in the suit. The receiver cannot, be appointed because of expected waste unless there is some proof of waste and mismanagement of the property or apprehension of irreparable loss and injury. Mere allegation in this respect in the application is not sufficient to pass such harsh order to deprive the bona fide occupant from the possession of the property. The defendants Nos.6 and 7 are in possession as the defendants Nos.1 to 5 confirm their possession as purchasers. The plaintiff has filed suit for specific performance and has yet to establish his right in the property. Apparently the plaintiff has no right to ask dispossession of defendants Nos.6 and 7 who claim to be bona fide purchasers. Furthermore, in the application and in the affidavit, no allegation of waste or mismanagement of the property has been alleged. The interest of the plaintiff is fully safeguarded by two ad interim orders dated 21-11-2007 and 3-1-2008. By first order the defendants Nos.1 to 7 were restrained from creating any third party interest in the suit property and by second order the defendants Nos.6 and 7 were restrained from carrying out any renovation/construction work in the suit property. In view of the above, no case for appointment of receiver is made out. Apparently this is a frivolous. application and has been moved just to waste the precious time of the Court, hence the application is dismissed with cost of Rs.10,000 to be deposited by the plaintiff with the Nazir of this Court within 15 days. On deposit of the same, it will be appropriated towards the account of High Court, Employees Benevolent Fund. Adjourned to 15-10-2008. Interim order already passed to continue till then. H.B.T./S-78/K Application dismissed.