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High Court Appeal No.15 of 1987, decided on 22nd March, 1987.

---O.XL, R.1--Appointment of receiver--Mode of appointment--While appointing a receiver, Court, held, had to consider all facts and circumstances of case and if it was in interest of justice to appoint receiver, order in that respect could be made--Application for appointment of receiver filed by respondent whose title in respect of disputed property was perfect being genuine purchaser thereof, could not be challenged by appellant whose very title was under cloud.

Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 12 others P L D 1976 Kar.181; A I R 1936 All. 49 and 1976 S C M R 111; Anandi Prashad v. Govinda Bapu A I R 1934 Nag. 160 and A I R 1921 Lah. 24 ref.

--The Respondent No.1, filed a suit for Declaration, rendition of accounts and Cancellation of lease stating therein that Mst. Hasina Begum Respondent No.2, occupied land measuring about 300 square yards situated at Commercial Area Lalukhet (Liaquatabad) Karachi. The said plot was allotted to the Respondent No.2, vide Allotment Order dated 8-12-1984. The possession was regularised and the name of Defendant No.2, was also entered in Form No.VII. The Respondent No.2, had constructed 72 shops on the ground floor and four flats on the first floor. The defendant No. 2, had sold 20 shops to the plaintiff /Respondent No.1, vide agreement dated 14-7-1965 for consideration of Rs.40,000. The Respondent No.1, was regularly receiving the rent from the Respondent No.2, after the sale. The respondent No.2, had appointed Ramzan Khan, husband of appellant No.1, as her attorney to look after and manage the said market. In 1964 the Respondent No.3, had given notice to the Respondent No.2, alleging that the 'construction of the said market was unauthorised and that the same should be demolished. The Respondent No.2, filed a suit against the Respondent No.3, in the Civil Court for declaration and injunction. The said Ramzan Khan husband of appellant No.1, had appeared .on behalf, of Respondent No.2, as her attorney and was examined as such. The Respondent No.1, filed an application under Order, Rule 10, C.P.C. for being impleaded as defendant and the same was allowed. On 11-1-1972 the Respondent No.2, revoked the power of attorney executed in favour of Ramzan Khan. After the Respondent No.1, was joined as a party he moved an application for appointment of Receiver over the said property and the application was granted. Thereafter, Ramzan Khan filed a suit against the Respondent No.2, for declaration that he is the real owner of the property in suit and the Respondent No.2, was only benamidar. Ramzan Khan, filed an appeal against the order for appointment of Receiver which was dismissed on 21-11-1973, A Revision was filed against the said order by Ramzan Khan but subsequently the sage was withdrawn: Ramzan Khan was examined in Suit No.32/64 in which he admitted that the property in suit belonged to the Respondent No.1. Ramzan Khan subsequently withdrew Suit No.424/72. According to the Respondent No.1 he came to know in December, 1982, that the Respondent' No.3, has granted lease of about 625 square yards to appellant No.1, the widow of defendant No.1. The Respondent No.1 therefore, prayed that declaration, be made that he is the owner of 20 shops and the defendants Nos.1 to 4, should be directed to render accounts of the shops and a declaration was sought that the lease of the suit property granted to the appellant by respondent No.3, be declared illegal. The impugned order shows that an application under Order XL, Rule 1, C.P.C. was moved by Respondents 1 and 2 for the appointment of Receiver. Earlier applications were dismissed by the learned Single Judge but subsequently on the third application moved the Receiver was appointed of 20 shops. This order of the learned Single Judge has been challenged in this appeal.

2. Learned counsel for the appellants has stated that the appellants have been granted lease by Respondent No.3, and as the lease ho been cancelled by the Respondent No.3, therefore, he filed the suit for cancellation, declaration and injunction against the cancellation order. He has further ... could not be appointed. He has also referred to the case of Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 other ( P L D 1976 Karachi 181) in favour of his contention that person asking for appointment of Receiver must show property in hands of opposite party to be in danger of being wasted. He has also relied upon A I R 1936 Allahabad 49 and 1976 S C M R III.

The authorities cited by the learned counsel are not attracted to the facts of the present case because in each case where application for appointment of Receiver has been made the Court ha to consider all the facts and circumstances of the case and then if i is in the interest of justice to appoint a Receiver such an order could be made. In the instant case the very title of the appellant is under cloud. The entire claim of the appellant, is on the basis of alleged allotment in favour of Ramzan Khan and then the transfer in favour of appellant No.1, by way of gift. The allotment has not been considered as genuine allotment and if there was any that had been cancelled by the respondent No.3.

The learned counsel for the respondent No.1, has referred to the case of Anandi Prashad v. Govinda Bapu (AIR 1934 Nagpur 160) wherein it is observed that although the Court is given power to stay execution it is subject to certain strict limitations and Order XL, Rule 5 (3) states very definitely that no order for lay shall be made unless those conditions are fulfilled. Therefore, was an order is challenged it behaves the Court to scrutinise the petition for stay with care, and see that the provisions of the Code are not transgressed; and the burden is on the appellant to show that substantial loss may result unless execution is stayed. He has also relied upon AIR 1921 Lahore 24, AIR 1952 Maysore 78 and AIR 1954 Rajasthan 1.

3. In this case the learned Single Judge has considered the entire facts and then granted the applications moved by the plaintiff. The admitted position is that Ramzan Khan appeared as Attorney of a Pardanashin Lady. He was only an agent, therefore, he could not claim title adverse to the Respondent No.2. It was not stated in the suit filed by Mst. Hasina through her attorney Ramzan that Ramzan had gifted the property. These facts unless rebutted by strong evidence would disentitle the appellants to challenge the order impugned in this appeal. Here it may be pointed out that the Nazir has taken possession of the property in dispute. The Nazir had examined the tenants of the 20 shops. All the tenants examined by the Nazir had given the rate of rent much higher than the rate that the appellant and the legal heirs of deceased Ramzan have been alleging. The facts stated above would make it abundantly clear that the appointment of Receiver in the present case is fair and just. We, therefore, see no reason to suspend the operation of the impugned order dated 2-2-1987.

H.B.T./I-24/K Receiver's appointment upheld.

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