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Civil Petition for Leave to Appeal No.243‑K of 1985, decided on 30th May, 1985.

(On appeal from the judgment of the High Court of Sind, Karachi, dated 7th May, 1985, in R. No. 88 of 1985. )

‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 96(3), O.XXIII, R. 3‑‑Consent order‑‑Suit for declaration and rendition of accounts‑ Appointment of receiver with consent of counsel for both parties‑ Unsuccessfully challenged in revision‑‑Plea that no such consent was given by petitioners' counsel, not entertained because affidavit to that effect was not filed by counsel in High Court nor this aspect of matter was dealt with there‑‑Petition for leave to appeal dismissed with observation that if receiver does not perform his functions satisfactorily, it was always open to Court to remove him and pass suitable order for proper management and custody of property in dispute

Akhlaq Ahmad Siddiqui, Advocate Supreme Court for Petitioners.

Nemo for the Respondent.

Date of hearing: 30th May, 1986.

By this petition, petitioners Naseem Ahmad Khan and others seek to call in question order dated 7th May, 1985, passed by a learned Single Judge of the High Court of Sind, at Karachi, whereby their revision application was dismissed.

2. According to the learned counsel for the petitioners, respondent Mst. Sabira Begum has filed a suit for declaration and rendition of accounts against the petitioners, on the plea that she is owner to the extent of 3/7 share in the business concern known as Nafees Bakery along with residential accommodation on the first floor of the building housing the business concern. It is stated that in the written statement filed by the petitioners they have admitted the claim of the said respondent and agreed to render accounts of the profits coming to the share of the respondent. Notwithstanding the aforesaid, before further proceedings in the suit on the motion of the respondent the trial Court appointed petitioner No. 1 as a receiver of the property in dispute by order, dated 21st April, 1984. Subsequently, however, on certain allegations, the respondent moved the trial Court for removal of petitioner No. l as receiver and appointment of husband in his place. But the learned trial Court removed petitioner No. l from receiver and appointed Mr. Badrul Alam, Advocate, as receiver.

3. The petitioners being aggrieved by the aforesaid order preferred an appeal and during the hearing to this appeal, learned Additional District Judge V, Karachi, passed the following orders on 13th April, 1985:

"Advocates for the parties present during the course of arguments, both the Advocates agreed that in place of Mr. Badrul Alam, Advocate, Mr. Waseem Ahmad Khan son of late Muhammad Umer Khan, husband of respondent Mst. Sabira Begum who has been running the Bakery in dispute previously should be appointed as Receiver of the Bakery and its business because he has adequate experience of this business. Mr. Waseem is present and he is willing to act as Receiver. Accordingly Mr. Waseem is appointed as Receiver of the Bakery and its business in dispute in place of Mr. Badrul Alam Advocate. The Receiver is directed to take over the possession of the Bakery and its business with immediate effect and he will run the bakery and will maintain proper account and will submit the same in Court according to rules. He will continue to be Receiver till he is discharged by the Court. The Receiver will have full powers of the Bakery and its business except that he cannot sell the property or encumber it in any manner except with the permission of the Court. The appeal is disposed of in terms of the above order and the order appeal against is modified to the above extent."

4. The petitioners then challenged the said order in revision before the Sind High Court which was dismissed by the impugned order on the ground that the order for the appointment of Mr. Waseem Ahmad Khan, husband of the respondent, as Receiver was consent of parties and, therefore, it was not liable to be upset at the instance of the petitioners. The petitioners now seek leave to appeal from the said order of the High Court.

5. After hearing learned counsel at some length we find no substance in this petition. His main grievance seems to be that the learned Additional District Judge wrongly proceeded to pass the order for the appointment of respondent's husband as Receiver on the ground that the counsel for both parties are agreed to his appointment as such, whereas according to the learned counsel the Advocate for the petitioner did not give any such consent. We are unable to entertain this submission as no affidavit to such effect was filed by the Advocate for the petitioners in the High Court, nor has the High Court dealt with this aspect of the matter. Learned counsel then made a grievance that the respondent's husband is resident of Hyderabad, whereas the property in dispute consisting of running business is situated at Karachi and as such it will be difficult for him to properly manage the business. In the face of the consent order, these contentions cannot be looked into at this stage. Suffice it to say that if the Receiver does not perform his functions satisfactorily it is always open to the Court to remove him and pass suitable order for proper management and custody of the property in dispute.

6. The other grievance of the learned counsel for the petitioners was that the respondent was unnecessarily protracting the proceedings as the Court could dispose of the suit on admissions made by the petitioners in their written statement, so that the suit could be disposed of without further proceedings. This grievance does not lie in this Court and it would be best for the petitioners to take necessary steps in the trial Court for disposal of the suit in accordance with law. With these observations this petition is dismissed.

M.I. Petition dismissed.

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