P L D 2011 Karachi 112 (PLP)

IRFAN SAADAT KHAN, J.

This Civil Revision has been filed against the order dated 8-8-2009, passed by the Additional District Judge, T.M. Khan, (A.D.J.) by which the order dated 6-11-2008 passed by the Senior Civil Judge, T. M. Khan, allowing application under Order XL, Rule 1, C.P.C. filed by the respondent for appointment of receiver, was set aside.

2. Briefly stated the applicant entered into an agreement of sale in respect of 108 acres of agricultural land, situated in Deh Jamarki Tapa Saeedupur, Taluka Bulri Shah Karim, with the respondent for a sale consideration of Rs.95,00,

000. Thereafter, the respondent paid certain amounts to the applicant and physical possession of the suit land was delivered to the respondent on the date of signing the said agreement. Thereafter, the respondent filed a suit for specific performance and permanent injunction, as according to the respondent, the applicant has failed to execute the final sale-deed, which case is pending adjudication before the lower Court. In the meantime, the respondent filed an application under Order XL Rule 1, C.P.C. for appointment of receiver, which application was allowed by appointing the Mukhtiarkar (Revenue), Taluka Bulri Shah Karim as receiver of the entire suit land with the direction that I the said receiver shall maintain all accounts of the money in respect of the suit property under proper intimation to the Court as well as he will have the authority to manage the affairs of the property for protection, preservation and improvement of the suit property and collection of the rents and profits thereof.

3. Mr. Aftab Ahmed Shaikh, learned counsel appearing on behalf of the applicant has submitted that the learned A.D.J. was not justified in setting aside the appointment of the receiver in respect of the suit property. He submitted that only a sale agreement was executed between the applicant and the respondent which did not confer any proprietary right over the disputed land to the respondent. He further submitted that the order passed by the learned A.D.J. is violative of section 55 of the Transfer of Property Act. He submitted that the powers under Order XL Rule 1, C.P.C. were exercised by the Senior Civil Judge after coming to the conclusion that it was "just and convenient", in view of the facts of the case. However, the A.D.J. has neither discussed nor mentioned that what were the reasons and justifications for setting aside the order of Senior Civil Judge who, according to the learned counsel, appointed the receiver after detailed deliberation and after considering the facts of the case. In support of his arguments, the learned counsel has relied upon 2004 MLD 1624, 1993 CLC 1606, 1988 CLC 1567 and PLD 2004 (Karachi) 269.

4. No one has appeared on behalf of the respondents though notices were issued to him through all modes, even publication was also made, but the respondents had chosen not to appear before this Court.

5. I have heard the learned counsel appearing on behalf of the applicant and have perused the record as well as case-laws relied upon by him and my findings are as under.

6. Receivers are generally appointed to preserve the subject matter of litigation, which is pending adjudication till the rights of the parties are finally determined. The main object behind appointing a receiver is to safeguard the interest of the contesting parties as well as the property. However, a party giving such application has to first make out a prima facie case. The appointment of receiver does not mean final determination of the rights of the parties. It is the discretion of the Court to appoint or not to appoint a receiver, however, such discretion has to be exercised judiciously r by following the norms of the law to protect the rights of the citizens. It is also a well settled proposition of law that appointment of receiver is the harshest remedy provided under the law of C.P.C., which would tantamount to dispossessing a person, who is already in possession of the said property.

7. In the present case the applicant has failed to establish that the property, which was given by him to the respondent after the sale agreement was in any way, danger of being dissipated, wasted or there is strong apprehension of manifest peril to the said property except by levelling allegation that some trees are being cut or the respondent is constructing a children playground on the said property, of which neither any evidence nor any material was produced either before the trial Court or before this Court. 7A. It is an admitted position that the applicant and the respondent are near relations, however, they are dagger-drawn with each other and it is being prayed on behalf of the applicant that as the property is in possession of the respondent, there is a danger of the property being damaged, wasted and dissipated and it would be equitable for the preservation of the property that a receiver be appointed. A suit for specific performance between the parties is pending adjudication hence no finding with that regard is being given, which would prejudice the said pending suit.

8. It is also an admitted position that an application under Order XXXIX, Rules 1 and 2, C.P.C. was filed by the present respondent before the Senior Civil Judge T.M. Khan, which was allowed vide order dated 6-11-2008 and the present applicant was restrained from selling, mortgaging, renting out etc. of the said property. The words "just and convenient" used in the Order XL, Rule 1, C.P.C. have to be interpreted depending upon the facts of each case. These word denote convenience of the party and not that of the Court. In the instant case the property in dispute was in use of the respondent since 2006, hence, in my view, it would not be just and convenient to dispossess him from the property on the ground of some unfounded, unproven facts and mainly on the basis of some vague allegations. In the instant case as mentioned above no material was brought on record for proving the allegations levelled by the applicant to substantiate his averments.

9. The case-law relied upon by the learned counsel for the applicant are quite distinguishable, as in those decisions the courts have held that receiver is mostly appointed to protect the property from destructions, however, in the instant case the applicant has failed to adduce any evidence or material in support of his contention that the respondent in any way is causing damage to the said property. It is interesting to note that admittedly it is the applicant himself who after signing of the sale agreement handed over the possession of the property to the respondent and the application for appointment of receiver, in my view, appears to be an afterthought on his part.

10. As stated above, the purpose of appointing the receiver is to safeguard/preserve the property but the person filing the said application has to first make out a prima facie case for such appointment through cogent material and evidence, whereas in the present case no such material has been placed either before the trial Court or before this Court to substantiate his claim. It is a trite proposition of the law that appointment of the receiver is a quite harsh step and this power available to the Court is to be exercised only when a person would establish a special equity in his favour and make out a case of exceptional circumstances which, in the present case, appears to be lacking. Where a person fails to establish that specific instances of alleged wastage, mismanagement, misappropriation and manifest peril the Courts usually refuses to appoint the receiver until and unless a case is made out by the person for interference depending upon the facts of each case. The discretion to appoint or not to appoint a receiver is to be exercised judiciously keeping in view the attending circumstances of each case and where those circumstances are wanting receiver could not be appointed, as it would not be "just and convenient" in view of the facts of the case. Hence, in my view, the necessity of appointing a receiver in the present case was rightly set aside by the A.D.J.

11. For the foregoing reasons, the order passed by the A.D.J., T.M. Khan, in my view, does not suffer with any legal infirmity and the same is hereby upheld. Resultantly, this revision application is dismissed. It is however, clarified that as a suit for specific performance and injunction between the parties is pending adjudication hence while deciding the same the learned trial Court would not be influenced by the present order and would pass an independent order keeping in view the facts and circumstances of the said case on merits. M. U. Y. /A-133/K Order accordingly.