2005 PLP 3265 (YLR)

ZIA PERWAZ, J.

Plaintiff has moved these applications seeking appointment of receiver for the property in suit, appointment of Nazir to take possession of shop in the said property and for directions to defendants Nos.1 and 2 to deposit the sum of Rs. 1,64,770-50 being share of the plaintiff in Court, respectively. Brief facts of the case are that the plaintiff claims 50% share in the property situated on commercial Plot No.253 measuring 35.87 Sq. Yards with construction thereon situated in Model Colony, Orangi Nullah, Manghopir Road, Karachi (hereinafter referred to as the said property). The plaintiff for her claims that she has been deprived of her share of the income from the said property. The present suit is instituted for accounts and for possession of shop to effect recovery of the share of the plaintiff in the said property through appointment of Receiver and sale of the said property. The defendant No.1 is the co-owner in possession of the said property along with her husband. Claim of the plaintiff as to the share in the said property is disputed by defendants Nos.1 and 2 in their written statement. Reliance is placed by defendants Nos.1 and 2 on a family settlement arrived at between the parties. Ms. Lubna Awan, Advocate for the plaintiff in support of her contentions has argued that defendants Nos.2 and 3 are real brothers and married to the two sisters, plaintiff and defendant No.1. Relying on the contents of the plaint, she argued that the said property has not been alienated or transferred in pursuance of the settlement alleged by the defendants and as such the title of the plaintiff has not been affected by any manner, plaintiff continues to own her 50% share. She has also disputed any family settlement amongst the parties. In support of her contention, learned counsel has relied on Aftab Ahmed Mufti v. Mst. Seema alias Zareena 1988 CLC 1567, Abdul Hai v. Mst. Haseena Khatoon 1987 CLC 1765, Basant Ram v. Dasondhi Mal AIR 1929 Lah. 497 and Moinuddin Paracha v. Sirajuddin Paracha 1993 CLC 1606 and Ram Kishore Das v. Balram Shah AIR 1978 Patna

210. Mr. Ghulam Abbas Pishori, Advocate for the defendants Nos.1 and 2, has refuted the contentions of learned counsel for the plaintiff. His contention is that the parties have already settled the matter and a family settlement has been arranged at and also acted upon by the parties. His contention is that the non-completion of formalities regarding the change of ownership in the relevant records of the department do not affect the terms already settled between the parties. The said property is owned and enjoyed by defendants Nos.1 and 2 in their own right and the plaintiff has no right/share in the said property. A workshop has been established in the shop by the defendants from which the income accrued to defendants Nos.1 and 2 is more than the rent of shop as the machinery of the workshop has also been set out. A statement showing the investment made and the income accruing from the said shop together with the installation of machinery has also been filed by the learned counsel. While opposing the applications, learned counsel has placed reliance on M. Ataur Rehman Alvi v. Inamur Rahman 1974 SCMR 54, Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur PLD 1976 Karachi 181, Mir Muhammad v. Muhammad Hashim 1988 CLC 2195, Miss Qamar Ali v. Syed Nadir Ali 1993 CLC 605, Iqrar Muhammad Siddiqui v. Mst. Sbahid Zareen PLD 1997 Karachi 409 and Sahib Khan v. Muhammad Ramzan 2000 MLD

729. The question of family settlement is a matter to be decided on the basis of evidence to be adduced by the respective parties and for purposes of interim relief the documents of title and the existing position of ownership is to be, seen. The plaintiff has a prima facie, case however, the question of appointment of Receiver to disturb the owner in possession claiming to have a 50% interest requires consideration. In the case of Aftab Ahmed Mufti (supra) Receiver was appointed when the occupant had no prima facie documents of title in her favour and is distinguishable from the facts of the present case. In case of Abdul Hai (supra) the sole surviving heir of the deceased made allegations of waste of the property which is distinguishable from the present case. In case of Basant Ram (supra) plaintiff claimed 1/5th share from the joint family property and Receiver was appointed as it was contended that partition could not be effected. Dispute in case of Moinuddin Paracha (supra) pertains to the management of commercial property wherein counter-claims were made by both the parties and a Receiver was appointed to manage the same as 51 receipts were issued to various tenants jointly by the plaintiff No.2 and defendant No.2 while defendant No.2 had resorted to disturb the possession by signing six rent receipts subsequently. In Ram Kishore Das's case (supra) while discussing the conditions of appointment of Receiver it was held:-- Order 40, Rule I of the Code of Civil Procedure itself vests power in the Court, whenever it considers it just and convenient to:

(a) Appoint a receiver of any property; (b) remove any person from the possession or custody of the property; (c) Commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers for management and protection of the property in suit R.I of 0. 40 simply says that whenever it is just and convenient, a receiver can be appointed by the Court for the management of the properties in suit. The words just and convenient have been interpreted by different Courts, and in that connection certain guidelines have been laid down which have to be borne in mind at the time of appointing a receiver. Ramaswami, J. of the Madras High Court in the case of T. Krishnaswamy Chetty v. C. Thangavelu Chetty AIR 1955 Mad. 430, after referring to different B cases on the point, has observed: (i) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. (ii) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. (iii) Not only must the plaintiff show a case of adverse and conflicting claims to property, but he must show some emergency or danger or loss demanding immediate action and of his own right, he must be reasonably clear and free from doubt. The element of danger is an important consideration. (iv) An order appointing a receiver will not be made, where it has the effect of depriving a defendant of' a `de facto' possession, since that might cause irreparable wrong. It would be different, where the property is shown to be `in medio', that is to say, in the enjoyment of no one; and (v) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party, who makes the application and will usually his conduct has been free from blame." After being satisfied from the facts and circumstances of the case the question of appointment of Receiver of the property was held to rest on the consideration that if it is shown that the interest of the persons seeking the appointment of a receiver is exposed to manifest peril, a Receiver has to be appointed. In the present case at present issues as to, the dispute regarding the alleged family settlement is yet. to be decided on the basis of evidence. The statement of the expenses made for installation of workshop as well as the C income from the property has been filed in Court. The plaintiff has not shown any apprehension that the said property is being sold or alienated. The question of appointment of Receiver to take over the property and conduct the auction is in my humble opinion would arise only after a finding is arrived at on these points. At present the said property is yielding income as is revealed by the defendants Nos.1 and 2 and evidence is yet to be adduced in support of the respective claims of the parties. The question of sale of property through auction or otherwise would arise only after these points are decided. In view of the above discussion C.M.As. Nos.9657 and 7069 of 2000 are dismissed. C.M.A. No.7070 of 2000 is allowed to the extent that defendant Nos.1 and 2 are directed to deposit the amount of 50`7 of the income from the property after deduction of the initial investment made in setting up of the machinery in the said shop and continue to file a quarterly statement of income incurred together with the deposit of 50% of the income accruing during each such period within 30 days of expiry of each quarter. Defendants Nos. 1 and 2 are also restrained from parting with the possession, inducting any new tenant, creating any third party interest in the said property or from taking any action detrimental to the interests of the plaintiff with respect to the said property. S.A.K./M-276/K Application partly accepted.