O R D E R

SALAHUDDIN PANHWAR, J. Through instant applications defendant has prayed as under :-

CMA No.9510/2014

“………to direct the Nazir to restore the possession of the premises viz. Shop No.2, Plot No.1112, Block 3, Memon Colony, Hussainabad, Karachi, to the defendant which has been illegally handed over by the Nazir to the plaintiff.”

CMA No.9511/2014

“……….to direct the plaintiff and Nazir of this Court to depute one representative each from the parties i.e. one from the plaintiff and one from the defendant at the demise premises to receive the installments from the customers in respect of the goods and articles sold by the Firm namely “Rab Traders” and deposit such installments with the Nazir of this Hon’ble Court on weekly basis or with such time as this Hon’ble Court may deem fit and proper such amount be invested by the Nazir in some government securities.”

2. Succinctly, relevant facts are that plaintiff is proprietor of M/s Rab Traders established in a rented premises i.e Shop NO.2, Block 3, Main Road Side, Memon Colony, Federal B, Area, Karachi; doing business of supply of household electronic appliances. He invited his friends to invest with him and defendant invested Rs.47,00,000/- with him. Plaintiff used to call the defendant to provide help for recovery and to look after the business. General terms of investment were that plaintiff would pay the profit on fix rate monthly basis as per total value of investment, same would be adjustable at yearly audit hence defendants and other investors were duly paid profit amount. Meanwhile brother of defendant was appointed by plaintiff as his staff to look after the business, however in year 2014 plaintiff realized some misappropriations by brother of defendant which entailed audit and it was revealed that brother of defendant in collaboration of defendant has misappropriated Rs.6,77,555/- and plaintiff sustained losses at the hands of defendant. The defendant did not agree with settlement of accounts, as prepared by plaintiff, and claimed that business has collapsed. Meanwhile he made telephone calls and some armed persons reached at the business premises who forcibly turned plaintiff out and put locks at the premises and same is still locked, the plaintiff came to know that defendant is receiving payments and putting them into his own pockets. On such back ground the plaintiff filed the suit and prayed as under:-

“(b) To direct the defendant not to interfere with the affairs of the plaintiff at the business premises, furthermore to direct the defendant to open the locks of the business premises.

(c) That in case if the defendant does not open the lock of the premises and does not allow the plaintiff to continue his business the Nazir of this Court may kindly be directed to break open the locks of the business premises and get the plaintiff to get into his business premises with the help of law enforcing agency if so required.

(d) …………..

(e) ………….. ”

3. It is further revealed that after institution of the suit by order dated 14.07.2014 this Court issued direction as under:-

“In view of above the Nazir of this Court is appointed as commissioner to take accounts in order to ascertain the amount of money due to or from any party and submit the report alongwith the accounts so taken and shares of each partners so determined. The liabilities of the shares, if any, shall also be determined by the Nazir after taking such accounts. Office is directed to draw preliminary decree in terms of this CMA No.8685 of 2014 stands disposed off.”

4. It is further manifests that on 16.07.2014 again Nazir was directed, being relevant last paragraph is reproduced as under:-

“In view of submission made by the learned counsel for the plaintiff and the bailiff’s report dated 12.07.2014 the Nazir in the capacity of commissioner is directed to break open the locks put on the business premises of the plaintiff illegally and prepare inventory of the books of accounts ledgers and all the articles found in the shop at the time of breaking open the locks of the premises. The learned counsel for the plaintiff further indicates the Nazir’s fee was not determined in the order dated 14^th July 2014, therefore, the same should also be fixed, therefore, the Nazir’s fee is tentatively fixed Rs.50,000/- (Rupees Fifty Thousand only) to be borne by the plaintiff.”

5. At this juncture it would be conducive to refer that in pursuance to directions issued by this Court vide order dated 17.07.2014, Nazir submitted as under:-

“2. In compliance of above Court’s order, undersigned deputed staff officials M/s. Ziauddin and Mohsin Anwar, both the officials accompanied with plaintiff Mr. Nisar Ahmed alongwith counsel for plaintiff Mr. Manzoor Hussain proceeded at P.S. Azizabad and took police aid. Thereafter, above namely persons reached at the subject property i.e. shop No.2, Plot No.1112, Block 3, Memon Colony, Hussainabad, Karachi on the pointation of plaintiff.

3. As per mandate the locks were broken of the subject shop and prepared inventory in the presence of above persons. (List of inventory is annexed herewith as marked P/1 to P/3).

4. Accordingly, the possession of shop i.e. shop No.2, Plot No.1112, Block 3, Memon Colony, Hussainabad, Karachi was handed over to the plaintiff namely Nisar Ahmed in a peaceful manner.”

6. Learned counsel for defendant while reiterating the contents of the application, has contended that instant suit is for settlement of accounts and realization of assets, mandatory and permanent injunction; plaintiff has not prayed for possession as manifests from the prayer clause of plaint; without hearing the defendant this Court issued direction for preliminary decree thus defendants have challenged the same in Appeal; Nazir has handed over the possession beyond the mandate given by this Court. He further contends that when this fact was pointed out; this Court issued explanation that how Nazir has handed over the possession to plaintiff; in pursuance to that, Nazir has submitted he assumed that this Court has issued such directions, thus handing over the possession on the basis of assumption by Nazir is completely against the law. At this juncture learned counsel for defendant further contended that this Court may direct Nazir for deputing two representatives of plaintiff and defendant for looking after and maintaining the business on demised premises, profit may be deposited with the Nazir until settlement of accounts by this Court.

7. Conversely, learned counsel for plaintiff contends that listed applications are not maintainable under the law as defendant is investor only therefore possession delivered to the plaintiff is in accordance with law; there are other investors, therefore prayer regarding appointment of Nazir and depositing the profit before the Nazir will disturb the valuable right of other investors. In support of his contention he has relied upon NLR 1981 UC 90, PLD 1962 (WP) Karachi 209, 1989 MLD 4819, 1979 SCMR 481 and AIR 1956 Allahabad 709.

8. The perusal of record reflects that it is not a disputed position / fact that at the time of filing of the suit the present plaintiff was not holding the possession which is further evident from prayer clause “C” of plaint which is:

Thus, such relief was / is purely within the meaning and object of mandatory injunction’. It is also a matter of record that matter was never heard for a relief of such nature nor even such order for putting the plaintiff was ever passed by this Court. The plaintiff, however, stood placed in possession of the shop in result of some misunderstanding or wrong assumption on part of the Nazir, who, otherwise, was solely authorized for taking accounts by breaking open the lock of the shop in question. Here it is worth to make clear that the Court (s) are not supposed to be a silent spectator (s) or to be believed to be deprived of any power, jurisdiction and authority in the event of any wrong, happened or resulted in name of wrong interpretation or assumption of its (Court) order rather the Court is vested with every power, jurisdiction and authority not only to enforce its legal order (s) but also to bring things back within legal frame if any excess is noticed/ found, else the very object of the administration of justice shall fail. It is now a well settled proposition of law that no one should suffer or prejudice for act or omission of the Court. Reference, if any, can well be made to the case of Faisal through LRs vs. Mrs. Khalida Bano and others (2012 CLC 667) wherein it was held:

« It is settled proposition of law that no one shall suffer on account of error of Court »………..…… »The error being apparent is liable to be corrected. »

In another case of Mian Muhammad Talha Adil vs. Mian Muhammad Lutfi, reported as 2005 SCMR 720 it was held that :

“…….. It is well-settled that no person shall suffer for the act or omission of the Court and the act of Court shall not prejudice any one.”

9. Since it is a universally recognized principle of law that an agent is legally authorized to do what the principal permits him/her to do so. It is not the authority of the ‘agent / authorized person’ to dress himself/herself with an authority which the principal never vested him/her. It is not the assumption or wrong interpretation which vests a right but the document and its plain meaning which shall always be taken as the only ‘four corners’ to see legality of an act of agent / authorized person. It was held in the case of Ghulam Rasool and another vs. Said Ahmed and others, reported as 2012 CLC 1655 that:

“It is now settled principle of law that any act without lawful authority does not create any interest or legal rights in favour of the beneficiaries.”

10. It is significat to mention that it is not a disputed position that there had not been any order with regard to putting the plaintiff into possession but it was wrong assumption of the Nazir (per his statement), therefore, the plea of the plaintiff of bonafide is of no legal value to claim continuity of such possession. It would suffice to say that one cannot claim any protection or legalization even on plea of the bonafide because an illegality continues to be illegality. Reference, if any, can well be made to the case of Dr. Muhammad Bashir vs. Addittional District Judge, Vehari and others reported as 2012 CLC 347. Worth endorse here that ‘an action taken by a person not having the authority to take the same would be null and void under the law’. (2013 CLC 792). Besides, order of the preliminary decree has been challenged therefore without prejudice to that I find it in all fairness, equity and good conscious to order for bringing things back to position as it were within meaning of the earlier order of this Court, so passed by my learned predessor. Consequently, the Nazir of the Court is hereby directed to take the possession of the shop under an inventary showing what he had delivered and what he receives and he shall continue performing duties within meaning of the earlier order (s) of this Court.

11. Further, it would be well within the spirit of safe administration of justice, equity and fair-play that the accounts of the business shall be maintained by Nazir within presence of representative of each party so as to avoid any question on such accounts. Not only this, but presence of the representative (s) from either side will also be helpful for smooth continuity of the business and their existence in market till they either part amicably or so under a decree of the Court, thus Nazir is also directed to depute two representative of either party and allow them to continue their business in demised premises. As regard objection of the plaintiff on depositing the profit with Nazir without hesitation to say that same is also without substance because the plaintiff and defendant are at dispute and recovery is to be made by collecting/receiving installments, as insisted by either sides, then there would be no other way to safeguard the interests of either parties but to keep the amount with Nazir. Moreover, the Nazir is directed that he shall maintain the accounts and shall supply the copy of such account / record to either parties on weekly basis. The parties are at liberty to submit objection, if any, on such statement of account within two days from receipt of the copy thereof else it shall be presumed that account of statement was accepted as correct. As regard to the claim of plaintiff that other investors have nexus in the said business, suffice to say that Nazir would be competent to examine the previous record, in case such fact is supported by documentary evidence, they would also be entitled to receive their share accordingly after settlement of accounts.

Accordingly, both the applications are hereby disposed of in above terms.

J U D G E

O R D E R

Imran/PA