P L D 1957 (W (PLP)

WAHIDUDDIN, J.

This is a revision application against the order of the District Judge, Khairpur Mirs dated 30th November 1956, appointing a Receiver of the property in dispute and setting aside the order of the trial Court for refusing to do so. The subject matter in dispute is a kuthha agricultural land leased out of Eksali grant. The applicant was in possession of the land in dispute and a suit was filed by him for a declaration that he was in rightful possession and for a permanent injunction to restrain the opponents/defend ants from interfering with his possession. The suit was filed in the Court of the First Class Sub-Judge, Khairpur Mirs. The learned Sub-Judge issued a temporary injunction restraining the opponents /defendants from interfering with the possession of the applicant/plaintiff in respect of the land in dispute. On 15th March 1956, the opponents/defendants filed an application under Order XL, rule 1, Civil P. C. for the appointment of Receiver on the ground that the applicant/ plaintiff has no right to the property and that the land in dispute has been leased out by the Government authorities to them and the applicant/plaintiff is not entitled to deprive them of the produce of the said land. This application was dismissed by the learned Sub-Judge and he made the following observations: "From the evidence on the record I am satisfied that it will not be just and proper to distrub plaintiff's possession at this stage. In order to maintain status quo I allow the plaintiff to be in possession. I decline to appoint a Receiver at this stage for the reason that plaintiff has remained in possession and it will not be just and convenient to disturb his possession." The opponents/ defendants thereupon filed an appeal in the Court of the District Judge Khairpur Mirs against the said order, and the learned District judge on 30th of November 1956 held that it was just and convenient that Receiver should be appointed of the property in dispute and set aside the order of the Sub-Judge. The applicant/ plaintiff has challenged the order of the learned District judge appointing a Receiver in respect of the property in dispute inter alia on the grounds that it was not competent for the learned District judge to appoint a Receiver in a suit when the only relief claimed is of decla ration and permanent injunction, that in any case no Receiver can be appointed on the application of the opponents/defendants in such suits and lastly, on the ground that the opponents/ defendants have not made out a strong prima facie case. Mr. Azizullah Shaikh, the counsel for the applicant, has taken me through the record and theie is no doubt that the learned District judge has not exercised the discretion vested in him under Order XL, rule

1. Civil P. C. in a proper manner. The first contention raised by the learned counsel for the applicant that under Order XL, rule 1 the Civil Courts are not entitled to appoint Receivers in a suit for declaration and permanent injunction is the subject-matter of decisions of a large number of authorities and there appears to be a conflict of opinion on this question. The consistent view taken by the Lahore High Court on this question is that there is no limitation under the provisions of Order XL, rule 1 on the powers of the Court to appoint a Receiver in a suit for declaration and permanent injunction. According to these authorities, in a fit and proper case a Receiver can be appointed in such suits. The leading authority on this question is a decision of the Division Bench of the Lahore High Court consisting of two eminent judges Shadi Lal, C. J. and Abdul Qadir. J. reported in the case of Amarnath v. Mst. Tehal Kaur (A I R 1922 Lah. 444). In that case a suit was filed by one of the reversioners against the widows of the late Pandit Bansi Lal who had left considerable property. This was a suit for a daclaration that, the property was in trust and that compromise effected should not adversely affect his right of succession after the death of the widows. During the pendency of the suit Abdul Raoof, J. appointed a Receiver of the property in dispute. An appeal was filed and the learned judges while considering this matter in this connection observed :- "It is contended on behalf of the appellant that 3s the suit brought by him was one for a mere declaration this Court should not appoint a Receiver of the property the possession of which cannot be awarded to one party or the other by the Court disposing of the main appeal. Our attention has not been invited to any authority which would limit the jurisdiction of the Court in the manner indicated above and considering that the object of the appointment of the Receiver is to protect the property and to maintain the status quo ante pending the disposal of the question whether the remaining half of the estate is or is not trust property, we are of opinion that this is a fit case in which the property should remain in custodia legis". This authority was followed in the case of Dhumi and others v. Nawab Muhammad Sajjad Ali Khan and others (A I R 1923 Lah. 623), by Moti Sagar, J. The learned judge, while considering a similar question, observed :- "Three contentions have been raised by Bakhshi Tek Chand in this appeal. Firstly, it is contended that as the suit brought by his clients was one for a mere declaration, the Court should not have appointed a receiver of the property, the possession of which could not be awarded to one party or the other by the Court in which the suit was pending. It should, however, be remembered that by appointing a receiver the Court did not intend to determine any legal rights in the property but merely intended to preserve the rents of the property in custodia legis until the legal title thereto could be established by one party or the other. No authority has been cited in support of the proposition that the powers of a Court to appoint a receiver are limited to suits of a possessory nature only, and having regard to the fact that the object of the appointment of a receiver is to protect the property and to maintain its status quo ante. I do not think that there is any force in the objection that the at potritmera is invalid merely because the suit in which the appointment was made was one for a mere declaration In the case of Dan Prasad v. Gopi Kishen ((1914) 36 All.19 : 22 I C 59 : 11 A L J 973) it was laid down that a Court had aright to appoint a receiver where it appeared to it to be just and convenient to do so, and that the Court could make such an order suo moto. The same rule was laid down in a recent case decided by a Bench of this Court, Amar Nath v. Tehal Kaur where it was held that a Court was not debarred from appointing a receiver of property, forming the subject-matter of a declaratory suit, in which possession of the property was not to be awarded to one party or the other, and that the object of the appointment of a receiver was to preserve the property in its actual condition pending the disposal of the dispute between the parties. I do not see any force in this contention, and I consequently overrule it". To similar effect the view is taken by Dalip Singh, J. in the case of Makhan Shah and another v. Mst. Halima and others (A I R 1927 Lah. 65). In the case of Al. St. An. Chidambaram Chettiar v. Ali. Vr. P. Pethaperumal Chettiar and others (A I R 1937 Mad. 163) a similar contention was raised before Cornish, J. and he also took the view "that if there is property in dispute between the parties, and the Court thinks it egpendient that the property should be protected for the benefit of the party ultimately entitled to it pending the suit, the Court can properly appoint a receiver of it, even in a suit which prays for no other relief than a declaration of some particular right or title". The learned Judge relied on two Madras decisions Veeravaghava Thathachariar v. Krishnaswamy Thatachariar (20 M L J 638) and Vythilinga v. Board of Control (A I R 1932 Mad. 193) and also on Amar Nath v. Mst. Tehal Kaur. In the case of Mst. Pounchbai widow of Valabdas v. Lekhraj Dayaram (3 S L R 118) a Division Bench of the Sind Judicial Commissioner's Court, however, took a different view. Crouch, A. J. C. held that in spite of the general terms of Order XL Civil P. C., the Court had no jurisdiction to appoint w Receiver of property which was not the subject-matter Lit litigation, the plaintiff's suit being one for a declaration and an injunction, and not for recovery of the property. This was a suit filed by tire adopted son of Valabdas deceased against the widow for a declaration that all the property of the deceased belonged to him subject only to the widow's right of maintenance and residence. The first class Sub-Judge at Hyderabad appointed a Receiver to recover the debts outstanding due to the estate of Valabdas, deceasd. The learned judges were of the opinion that the only person legally entitled to recover outstandings due to Valabdas deceased was the one to whom probate, or letters of Administration or a certificate was granted. A Receiver appointed in the suit would not be able td give a valid discharge to the parties, and further, if the debts were recovered and deposited by the Receiver in custodia legis, the Court would hold them in trust for the estate of the deceased. It would have no power to deal with them in execution of any decree passed in this suit, nor could it properly hand them over to any but the person legally authorised to represent the deceased. They were also of the opinion that the outstandings to the deceased were not tile subject-twitter of litigation and therefore came to the aforesaid conclusion. The terms of Order XL, rule 1 are Very wide and there is no doubt in my mind that in a fit case, even to a suit for declaration and permanent injunction a Civil Court is competent to appoint a Receiver. The view of the Lahore Court appears to be more sound and I am in respectful agreement with the principle of law enunciated therein. The Sind case only points out the difficulties that can arise if a Receiver is appointed and is clearly distinguish able. The learned counsel for the applicant contended that if the view of the Lahore High Court is followed then the litigant Public will never file a suit for recovery of possession and will easily avoid the payment of heavy Court-fee. He also pressed that the observation in the Sind decision that the property recovered by the Reciever cannot be dealt with in execution ; should not be lightly ignored. No hard and fast rule can be laid down for the guidance of the Subordinate Courts in this respect, and they should exercise their discretion on the facts of such case. The Civil Courts are bound to exercise their discretion in a judicial manner. They will refuse to exercise it once they are satisfied that the party concerned has not come with clean hands and the object of the suit was to avoid payment of Court-fee. They can even refuse to entertain the suit if the circumstances of the case establish that a suit for possession should have been filed. Such problems can be easily faced. I also find no difficulty in dealing with the property realised by the Receiver on the conclusion of the case. The Courts have sufficient power to order the payment of money or delivery of movable property to the parties entitled to it. But this does not mean the handing over of the possession of immovable property. I will, however, observe that only in very exceptional circumstances a Receiver should be appointed in a suit for declaration and permanent injunction. They should not be appointed as a matter of course. The next contention of the learned counsel for the applicant that a Receiver cannot be appointed on the application of a defendant is also not well-founded. Order XL, rule 1 does not lay down that a Receiver can be appointed only on the application of the plaintiff. Usually it is the plaintiff who asks for the appointment of a Receiver but there can be cases where the defendants also may seek the protection of the Court for the preservation of the property in dispute pendente lite. In Dhumi and others v. Nawab Muhammad Sajjad Ali Khan and others (A I R 1923 Lah. 623) a Receiver was appointed on the application of the defendants. I therefore overrule this objection also. The order of the learned District judge cannot be sustained as the opponents/defendants have not been able to make out a strong prima facie case for the appointment of a Receiver. The learned District judge's order does not disclose whether the applicant/ plaintiff committed any waste or damage in respect of the property in dispute. There was no justification for the learned District Judge to observe that the order of the Revenue Minister of Khairpur State dated 15th November 1954 in favour of the opponent was con clusive on the question of the title of the parties and cancelled the sale deed executed by Ghulam Sarwar in favour of Muhammad Parial. This was not a correct approach. The learned District judge by the order in question has almost decided the points in dispute between the parties and has, there fore, materially prejudiced the applicants/ plaintiff's case in the Lower Court. On consideration of the facts of the present case, there is no doubt that there exists a bona fide dispute between the parties and that the plaintiff was in occupation of the property under a lawful title. The question whether this title was subsequently affected by any order of the Revenue Authority is a matter that can only be decided on a regular hearing of the suit ; it could not be decided in the manner in which the learned judge has chosen to do. Ordinarily the Revisional Courts hesitate to interfere with the exercise of the discretion of the lower Court in the matter of the appointment of a Receiver, but it is a well settled principle of law that if the Lower Court has exercised its discretion in an improper manner then in the interest of justice such order should be disturbed. Mr. Azizullah Shaikh showed me at the time of the hearing of the application that after the decision of the appeal the applicant/ plaintiff was again granted an "Ijazatnama" in respect of the property in dispute. For the reasons given above the order of the appointment of the Receiver is set aside and application is accepted with costs. Z. A. S. /A. H. Application accepted.