2001 PLP 349 (YLR)

O. XL, R. 1

Receiver appointment of-- Condition precedent

Necessary to show that the property in respect of which appointment of Receiver was sought was being wasted-- Application for appointment of receiver could not be accepted in the absence of such allegation. Abdul Muneem Khan for Plaintiff. Anwar Hussain far Defendants Nos. 1, 2 and

3. The main dispute between the parties is that the plaintiff was the tenant of Property No. 164-C alongwith 12 looms already affixed to the land. Later the plaintiff claims that he installed another 16 looms plus other ancillaries machinery. However, when threatened with dispossession because of the demand of the defendants for increase of rent he tiled a Suit No.738 of 1994 in the District Court seeking to prevent the defendants from dispossessing him. In injunction application, the learned Civil Judge came to the conclusion that the plaintiff did not have a prima facie case. However, he felt that the plaintiff was entitled to the possession of a portion of the area claimed by him alongwith 12 looms. The plaintiff contends that subsequently the defendants by the help of the police dispossessed him from the plot/shade that he occupied and also took away his looms 28 in number. He now through this suit seeks possession of his property as well as return of his looms and damages. On the other hand the case made out by the learned counsel for the defendants is that in fact, the plaintiff was tenant only in respect of one shade in Plot No. 164-C and 12 looms but subsequently he occupied illegally Plot No. 164-B as well as 16 looms that were affixed to it. Juxtaposing the two statements one would arrive at the conclusion that it is an admitted position that the plaintiff was a tenant of one shade in Plot No. 164-C alongwith 12 looms. The only point of dispute is with respect to 16 looms while the plaintiff claims these to be his and the defendants claim these to be theirs. It appears that subsequently, through the police under a Superdinama the defendants have obtained possession of these 16 looms. The dispute also extends to the area under tenancy to the extent that while the plaintiff contends that he was the tenant of the entire Plot No.' 64-C, the defendants maintain that he was a tenant of only in respect of one shade No. "B" In Plot No.164-C. The learned counsel for the defendants states that the shade in question is presently vacant and he has no objection if the plaintiff takes possession of it provided they continue to pay rent for the same.

2. This is an application under Order 40, rule 1 read with section 39, rules 1 and 2, C.P.C. whereby the plaintiff prays that the defendants be restrained from selling, alienating the 28 looms in working order and also that a Receiver be appointed. Insofar as the appointment of a Receiver is concerned the ingredients of Order 40, rule 1 are very stringent and what is necessary to be shown for appointment of a Receiver is that the property in question is being wasted. No such allegation has been made here. Consequently, I see no merit in this application to the extent that a Receiver be appointed and hence, I decline to appoint a Receiver. Insofar as the looms are concerned it is obviously clear that the Senior Civil Judge in District Court had held that the plaintiff were entitled to only 12 looms. The disputed looms are only

16. Consequently I directed that the defendants will not alienal or sell or create any third party interest in 16 looms till the disposal of this suit. In so far as earnings from these looms are concerned, the defendants would maintain the accounts in respect of the earning from the 16 looms which are to be filed in Court every month till the disposal of this Suit. With these observations the learned counsel are satisfied and accordingly all these applications are disposed of in terms thereof. H.B.T./A-191/K Order accordingly.