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Suit No. 177 of 1986, decided on 28th May, 1986.

---O.XXXIX, Rr. 1 & 2--Mandatory injunction--Property in dispute standing in name of defendant whom plaintiff claimed to be a Benami- Such fact was yet to be investigated during evidence when parties would be required to establish their claim--Defendant not in possession of property and plaintiff at time of filing suit in exclusive possession of property without any let or hindrance from anybody including defendant--Prayer for grant of mandatory injunction refused--Since dispute between parties was over title of property, parties ordered to maintain status quo till final disposal of suit or such time when order was varied or amended.

--O. XL, R.1--Appointment of receiver--If facts stated in application for appointment of receiver made out a case, mention of words "that it was just and convenient to appoint a receiver" in application is not necessary--Facts in application showing that serious dispute existed between parties and that it was in interest of both parties that Official Assignee was appointed as Commissioner to inspect the disputed appointment and make the inventory of the goods lying therein--High Court ordered accordingly.

Mr. Sharif for Plaintiff.

Mrs. Rashida Patel for Defendant.

This is an application under Order 39 Rule 2(3), C.P.C. for action against the plaintiff for violating the order of status quo passed by this Court. Mr. Sharif Advocate states that notice of contempt application may be issued to the plaintiff directly and he is stated to be at Jordan. In these circumstances notice be issued to the plaintiff on his address given .in the plaint. If at the time of service he is not available, a copy of the notice should be pasted at his outer door and it shall be treated as a proper service.

--Both the applications will be disposed of by this order. The first application has been filed by the plaintiff under Order 39 Rules 1 & 2 for restraining the defendant from disposing of or transferring in any manner the apartment No. GF-3 No. 61 Seaview Township, Defence Housing Authority Karachi and from interfering with the possession of the plaintiff. The other application has been filed by the defendant under Orders 39 and 40 C.P. C. for appointment of receiver and injunction against the plaintiff. The plaintiff is the husband of the defendant and is employed in the Jordanian Air Lines. It is alleged that on 14-2-1986 during telephonic conversation with the defendant she asked him to divorce her without any reasonable cause. He came back on 20-2-1986 and enquired from her about this drastic step. The plaintiff also demanded the custody of the cash, valuables and other expensive items alleged to have been in the custody of the defendant. The plaintiff has alleged that the defendant left the house with her mother and took away all her belongings. The particulars of the assets are given as cash of Rs. 3,28,000.00 jewellery worth Rs. 76,000.00, Coloured TV of Rs. 8,000.00, Dowery articles valued at Rs. 1,65,000.00. It is alleged that in the year 1976 the plaintiff had purchased apartment bearing No. GF-3 and sum of Rs. 50,000.00 was paid by him. The seller had executed a power of attorney in favour of the plaintiff who got the said apartment transferred in the name of defendant as his nominee. Since then the defendant is holding the title of the apartment, according to the plaintiff, in trust for plaintiff as a Benami. According to the plaintiff he has made the entire payment as defendant had no source of income of any kind at all. It is further alleged that the plaintiff is presently living and enjoying exclusive possession of the subject apartment quietly and peacefully without any let or hindrance from any body including the defendant. It is alleged that the plaintiff had started a provision store from his own resources in the garage of the subject apartment after leaving service from PIA, in the year 1984, and it was left under the supervision of defendant when he joined the Royal Jordanian Airlines and no account has been rendered by the defendant. The plaintiff apprehending that the defendant may misuse the funds and valuables and also transfer the apartment filed this suit for declaration that he is the real owner of the property and for restraining the defendant from transferring the property. An application under Order 39 was filed and by order dated 13-3-1986 the parties were ordered to maintain status quo. In the application filed by the defendant she is seeking a mandatory injunction and appointment of receiver.

From the facts stated in the plaint and affidavits of the parties it is clear that the property in dispute stands in the name of the defendant. The plaintiff claims that the defendant is a Benami. This fact has to be investigated during the evidence when parties be required to establish their claim. The second admitted position is that the defendant is not in possession of the disputed flat and as stated in para 9 of the plaint at the time of filing the suit the plaintiff was in exclusive possession without any let or from any body including the defendant. In these circumstances the question of grant of mandatory injunction as prayed does not arise. By granting mandatory injunction the position obtaining at the time of filing the suit will be reversed which is not contemplated by law.

So far the prayer of the plaintiff is concerned as there is a dispute between the parties to the title of the disputed apartment it will be in best interest of the parties that both of them should maintain status quo as on 13-3-1986. The plaintiff and defendant shall not transfer, create any encumbrance or charge or induct any third party in possession of the property till the final disposal of the suit or such time that the order is varied or amended.

Mrs. Rashida Patel the learned counsel for the defendant has also applied for appointment of receiver. According to Mr. Sharif the defendant in her affidavit has not stated that it is just and convenient to appoint a receiver. It is not necessary to use these words in specific terms in the affidavit or the application under Order 40, C.P.C. provided the facts stated make out a case for appointment of receiver. The defendant has stated that she did not leave the house but she was beaten and turned out by the plaintiff and in this regard she has lodged a report with the police. There seems to be serious dispute between the parties even on the showing of the plaintiff himself because according to the averments in the plaint the defendant wanted divorce from him. Therefore in order to protect the interest of both the parties till the final decision it would be just and proper to appoint the Official Assignee as Commissioner to inspect the disputed apartment and make an inventory of the goods lying in the flat and the garage. He should also submit the report who is presently occupying the disputed premises. The defendant should deposit Rs.1,000 towards tentative fee of the Commissioner.

M.Y.H./M-133/K Application allowed.

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