2021 C L C 592
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech
,
JJ
ATTAULLAH and 9 others ----Petitioners
Versus
ZAINULLAH and 20 others ----Respondents
Constitutional Petition No.32 of 2020, decided on 16th March, 2020.
Civil Procedure Code (V of 1908) ---
----O.XL, R.1 ---Receiver, appointment of ---Scope and requirements ---Words "just and
convenient" ---Connotation---Plaintiffs during pendency of suit filed application for
appointment of receiver, which was dismissed--- Validity ---Court had jurisdiction to appoint
receiver of the suit property in order to protect and preserve the same ---Such discretion
should be exercised judiciously by following the norms of law to protect the right of the
citizens ---Party seeking relief of appoin tment of receiver should make out a prima facie case
and establish his title to the suit property--- Such party should also show that suit property
would be wasted and misappropriated if receiver was not appointed---Apprehension of mismanagement or misappropriation alone was not sufficient for appointment of receiver ---
Appointment of receiver was the harshest remedy provided under Civil Procedure Code, 1908--- Power under O.XL, R.1 of C.P.C. should only be exercised when Court had come to
the conclusion that it was just and convenient to appoint receiver to preserve and protect the property during pendency of litigation---Words "just and convenient" used in O.XL, R.1 of C.P.C. was to be interpreted depending upon the facts of each case ---Said words denote
convenience of the party and not that of the Court ---Suit property in the present case was in
possession of defendants and revenue entries were also in their names ---Appointment of
receiver in circumstances, was not just and convenient as it would deprive the defendants from usufruct of the properties ---Plaintiffs had yet to prove their contention at the trial and
they had failed to show any emergency and loss demanding immediate action for appointment of receiver ---No illegality or irregularity had been pointe d out in the impugned
orders passed by the Courts below ---Constitutional petition was dismissed in limine.
Sahibzada Muhammad Naseem for Petitioner.
Date of hearing: 10th March, 2020.
ORDER
ROZI KHAN BARRECH, J. ----The instant constitutional petition f iled under
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to
as "the Constitution") carries the following prayer:
"It is therefore, most respectfully prayed that this Hon'ble Court may be pleased to set aside b oth the impugned orders dated 21- 11-2019 and 31- 12-2019 passed by the
learned trial court and revisional court and to accept the application under Order XL, Rule 1 read with section 151, C.P.C and application under Order I, Rule 10 read with section 151, C .P.C. both filed by the petitioners and other relief in the interest of
justice and equity."
2. Succinctly, facts of the case are that the petitioners/plaintiffs filed a civil suit against
the respondents/defendants before learned Judicial Magistrate -IV/Ci vil Judge, Pishin
(hereinafter referred to as "the trial court") for declaration, possession through partition, cancellation of mutation No. 253, mesni profit, consequential relief and permanent injunction with the following prayer:
a. To declare that the plaintiffs and defendants Nos. 1 to 16 are the legal heirs of Ubaidullah (late) son of Muhammad Ameen (late) and they are legally entitled to get
their due shari shares of the properties details whereof mentioned in paras Nos.3, 4
and 5.
b. To declare that the plaintiffs and private defendants are lawful owners/co -sharers in
ancestral properties/subject matter and the plaintiffs are entitled for their due shares as prescribed under the law of inheritance/Muhammadan law.
c. To declare that the su bject matter including the shops/quarters are the joint ownership
of the plaintiffs and defendants Nos.1 to 16.
d. To declare that the plaintiff are entitled for mesni profit from the year 2014 to April 2019 till disposal of the suit and onwards as per the ir shari shares according to
Shariat/law of inheritance/Muhammadan law.
e. To direct the defendants Nos.1 to 7, 13 to pay the amount recovered on account of rent of shops / houses / tower and agricultural income as mesni profit as per their shari shares according to Muhammadan law to the plaintiffs.
f. By means of mandatory injunction, the official defendants be directed to partition the ancestral properties / subject matter including shops, houses etc by meets and bounds and further plaintiffs and private defendants be put in possession of their respective shari shares, in case of failure of private defendants the official defendants be directed to partition the ancestral properties / land and handover the vacant possession to the plaintiffs as per shari sh ares of plaintiffs, while also directed the official defendants to
also partition the shops, houses etc, among all the legal heirs i.e. plaintiffs and private defendants as per their shari shares.
g. By means of permanent injunction, the private defendants be restrained not to
transfer, alienate, sell, exchange, change the nature, mortgage, involve the interest of third party in the suit properties till final disposal of the suit.
h. To direct the official defendants to cancel the fake, void, illegal and fo rged mutation
No. 253 and declare the said mutation, as illegal, fake and void and cancel the
agreements if any have been executed by the defendants Nos. 1 to 7, 13 on their behalf with other persons.
i. To declare that the plaintiffs are entitled for their shares in the left over ancestral properties of deceased Ubaidullah (late) son of Muhammad Ameen (late) under the Shariat Laws / Muhammadan Law of inheritance.
j. To direct the official defendants to correct the revenue record by mentioning the names of plaintiffs and defendants Nos. 8 to 12, 14 to 16 as legal heirs of Ubaidullah
(late) son of Muhammad Ameen (late).
k. Any other relief which this Hon'ble Court may deem fit and appropriate in the circumstances, cost of the suit may also be awarded in favour of plaintiffs against the defendants in the interest of justice.
l. Relief".
3. The suit was contested by the private respondents/defendants by means of filing
written statement on legal as well as factual grounds and denied the claim of the petitioners/ plaintiffs.
4. During pendency of the suit the petitioners/plaintiffs filed two separate applications
under Order XL, Rules 1 and 2, C.P.C. for appointment of receiver and application under Order I, Rule 10, C.P.C. for impleading the Technical Head/Manager Telenor Company
Telecommunication as defendant to the proceedings. Both the applications were contested by the private respondents/defendants by means of filing rejoinder.
5. After hearing the learned counsel for the parties, the trial court dismissed bot h the
applications vide order dated 21st November, 2019.
6. Being aggrieved from the order dated 21st November, 2019, passed by the trial court,
the petitioners/plaintiffs preferred revision petition under section 115, C.P.C. before learned District Judge, Pishin (hereinafter referred to as "the revisional court"), but the same was also
dismissed vide order dated 31st December, 2019 (both the orders are hereinafter referred to as "the impugned orders"). Hence, this petition.
7. We have heard the learned cou nsel for the petitioners and have gone through the
available record.
8. The law is well -settled on the question of appointment of receiver, that a Civil Court
has got jurisdiction to appoint receiver of the suit property, in order to protect and preserve the same, pending judicial determination, however, such discretion has to be exercised
judiciously by following the norms of the law to protect the rights of the citizens. The party seeking relief of the appointment of receiver is under a legal obligation t o make out a prima
facie case and establish his prima facie title to the suit property. Such party has also to show that the suit property would be wasted, misappropriated and destroyed if the receiver is not appointed. Even apprehension of mismanagement or misappropriation alone would not be
sufficient to call for appointment of a receiver. 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 dispossessi ng a person, who is already in possession of the said
property, therefore, it is to be used sparingly.
9. The power of the Court under Order XL, Rule 1, C.P.C. could only be exercised when
Court comes to the conclusion, on the basis of the material placed before it, that it is just and convenient to appoint the receiver to preserve and protect the property during the pendency of litigation between the parties. 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 words denote convenience of the party and not that of the Court. In the instant case the property in dispute is, admittedly, in possession of the respondents and the revenue entries are also in their names. The defend ants have pleaded private partition.
In view of the facts and circumstances of the case, it would not be just and convenient
to appoint a receiver depriving the defendants from the usufruct of the properties. The petitioners have yet to prove their conten tion at the trial.
10. The petitioners have failed to show any emergency and loss demanding immediate
action for appointment of receiver.
11. As far as the application filed by the petitioners/plaintiffs under Order I, Rule 10,
C.P.C. is concerned, which was filed to implead the Technical Head/Manager Telenor Company Telecommunication as defendant to the proceedings. As per pleading of the parti es, the piece of land (subject matter) was rented out by the respondent/defendant Nos. 1
to 7 and 13 through respondent/defendant No. 1 to Telenor Company Telecommunication for installation of Telenor tower and the Telenor Company Telecommunication install ed its
tower in the month of April 2016, who also paid the rent of Rs.40,000/ - per month to
respondent/defendants Nos. 1 to 7 and 13 through respondent/defendant No. 1. In this regard an agreement was executed between the Telenor Company Telecommunication and respondent/defendants Nos. 1 to 7 and 13, which is in possession of the respondent/defendant No. 1. The Telenor Company Telecommunication is not necessary party or proper party in the instant case as only a piece of land has been rented out to Telenor Company Telecommunication and it is not a shareholder of the subject matter.
12. The findings of both the Courts below are not suffering from any illegality or
irregularity.
The petition being devoid of merits is dismissed in limine with no order as to co st.
ZC/125/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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