SUIT NO. 278 of 2008
Hashim Raza & others -------------------------------------------- Plaintiffs
Versus
Syed Muhammad Ali & others ---------------------------------Defendants
1) For hearing of CMA No. 3030/2008.
2) For hearing of CMA No. 10548/2006.
3) For hearing of CMA No. 6223/2009.
4) For hearing of CMA No. 3518/2013.
Date of hearing: 21.04.2014
Date of Order: 21.04.2014
Plaintiffs Through Mr. Fazlur Rehman Advocate.
Defendant
No. 12 & 13 Through Mr. Mirza Sarfaraz Ahmed Advocate
Defendant KMC Through Mr. Irfanul Hassan Advocate.
O R D E R
Muhammad Junaid Ghaffar J: Through application listed at serial No. 1 (CMA No. 3030 of 2008) filed under Order XL Rule 1 read with Section 94 CPC, the plaintiffs have prayed for appointment of Receiver in respect of Suit property bearing Plot No. B-64, Block L, North Nazimabad, Karachi.
2. Learned Counsel for the plaintiffs contended that in the instant matter on 27.2.2008 interim orders were passed and defendants No. 1 to 3 were restrained from demolishing the shops available on the subject plot and from creating any third party interest in the same. However, such orders passed by this Court were not complied with, whereafter, the plaintiffs had filed the aforesaid application and vide order dated 14.4.2008 Nazir of this Court was appointed as Receiver on the said property and for taking necessary action in accordance with law. Per learned Counsel the order dated 14.4.2008 had practically disposed of the aforesaid application and perhaps office has been wrongly listing this application for further hearing. Learned Counsel further submitted that the only remedy available against the said order was by way of filing an appeal in terms of Order 43 Rule 1(s) CPC, and no further orders could be passed in respect of the said application. Learned Counsel further contended that the plaintiffs were tenant in respect of the said premises and the rent proceedings in the instant matter had finally culminated in favour of the plaintiffs up to the level of Hon’ble Supreme Court, whereby, through order dated 22.11.2000, the appeal preferred on behalf of the defendant’s No. 1 to 3 was dismissed. In view of such position, learned Counsel prayed that since Receiver has already been appointed by this Court vide order dated 14.4.2008, the matter may be fixed for settlement of issues and further proceedings.
3. Conversely, learned Counsel for the defendants No. 12 & 13 has vehemently controverted such contention and contended that instant Suit was filed on 16.2.2008, whereas, the present defendants No. 12 & 13 were not arrayed as parties in the instant Suit. Learned Counsel further submitted that on 21.4.2008 the defendants No. 12 & 13 filed an application under Order 1 Rule 10 CPC, which was allowed vide order dated 23.9.2008, whereas, the order dated 14.4.2008 for appointment of receiver was passed in the absence of the answering defendants, who were deliberately not arrayed as party in the instant Suit. Per learned Counsel such Ex-parte order of appointment of receiver has seriously prejudiced the interest of defendants No. 12 & 13 and may be recalled. Per learned Counsel the aforesaid application was not finally disposed of vide order dated 14.4.2008 as the Court in the first instance had ordered notice on the said application, and thereafter the order for appointment of Receiver was passed. Per learned Counsel if the Court had the intention of disposing of the said application on that date, then no notice would have been ordered on the said application. Learned Counsel also referred to paras 11 & 14 of the plaint and submitted that according to the plaintiffs own averments, they were dispossessed from the subject property on 9.3.2007, whereas, instant Suit has been filed on 16.2.2008 and the present defendants No. 12 & 13 had purchased the said property prior to filing of instant Suit on 9.2.2008. Therefore, the answering defendants have no relationship of a landlord and tenant with the plaintiffs. Learned Counsel further submitted that plaintiff No. 1 had earlier filed another Suit bearing No. 251 of 2007 before the Court of XIIth Civil Judge / Judicial Magistrate at Karachi Central, which was dismissed vide order dated 23.10.2007, against which an appeal was preferred before the District & Sessions Judge, Karachi Central, bearing Civil Appeal No. 57 of 2007 which was thereafter withdrawn on 19.3.2008 on the ground that the plaintiffs have already approached this Court for redressal of their grievance. Per Learned Counsel such material facts were not disclosed by the Plaintiffs in the instant Suit and the interim orders as well as order for appointment of Receiver, have been obtained by misrepresentation. Learned Counsel further submitted that in view of Order XL Rule 2 CPC, no order for appointment of receiver could be passed in respect of the property which is owned by the defendants No. 12 & 13, whereas, the plaintiffs have no lien on the said property nor do they have any claim against the answering defendants.
4. I have heard both the learned Counsel and perused the record. It appears that instant Suit has been filed on behalf of the plaintiffs for Declaration, Possession, Recovery as Damages / Compensation and Permanent Injunction. The plaintiffs have themselves stated in the plaint at Para 11 onwards that they had been dispossessed by the defendant’s No. 1 to 3 on 9.3.2007 and such dispossession has been challenged by them through instant Suit. The claim of the plaintiffs is to the effect that since they had been successful in the rent proceedings, whereby, the defendants No. 1 to 3 failed to have the plaintiffs ejected from the Suit premises, the conduct of the defendants No. 1 to 3, whereby the Plaintiffs have been forcibly dispossessed, is unlawful and in addition they have also prayed for being put into possession again. They have also claimed damages to the tune of Rs. 6 million. From perusal of the record and the contents of the plaint, it is an admitted position that when instant Suit was filed on 16.2.2008, the plaintiffs had already been dispossessed by the defendants No.1 to 3, whereas it has also not been disputed by the learned Counsel for the plaintiffs that earlier a Suit bearing No. 251 of 2007 was filed by plaintiff No. 1 in respect of the same cause of action which was thereafter dismissed by the learned Trial Court. From perusal of the record, it reflects that insofar as the claim of the plaintiffs is concerned, it is primarily against the defendants No. 1 to 3 who had already sold the subject property to the defendants No. 12 & 13 vide Sale Deed dated 9.2.2008 and despite such fact, the answering defendants were not arrayed as party in the instant Suit. The plaintiffs by themselves have stated that they were not in possession, when instant Suit was filed, therefore, on such admitted position the claim of the plaintiffs with regard to attachment of the property in question which was not owned by defendants No. 1 to 3 anymore, and against whom the entire claim of the plaintiffs lies, cannot be justified. The order dated 14.4.2008 appears to have been obtained on misrepresentation of facts, whereby, the Court had been misled to believe, that the property in question was still owned by the defendants No. 1 to 3 and was in their possession. Further the Plaintiffs have also concealed material facts from this Court by not disclosing the fact that earlier a Suit was filed by Plaintiff No.1 bearing Suit No 251 of 2007, before the Court of XIIth Civil Judge/ Judicial Magistrate, Karachi Central, which was dismissed on 23.10.2007 and an appeal was preferred against the said order of dismissal before the District & Sessions Judge, Karachi Central, which was later on withdrawn on 19.3.2008 after having obtained interim orders from this Court. Such conduct on the part of the Plaintiffs cannot be appreciated by this Court which alone disentitles them from claiming any discretionary relief from this Court as a party must come to the Court with clean hands for seeking justice and equity.
5. Insofar as the contention of the learned Counsel for the plaintiffs that aforesaid application stood disposed of on 14.4.2008, whereby, the Receiver was appointed by this Court and needs no further orders is concerned, the same appears to be misconceived as perusal of the order dated 14.4.2008 reflects that the Court had firstly ordered notice of the said application and thereafter in the interest of justice and for the reason that nobody had turned up on behalf of the defendants No. 1 to 3, an order for appointment of Receiver was passed by this Court. If the application had been finally disposed of by this Court then there was no need for ordering any notice on such application by the Court, therefore, the objection raised in this regard being misconceived is herby repelled as well.
6. In view of herein above facts and circumstances of the instant case, whereby the plaintiffs have concealed material facts by not disclosing the earlier round of litigation initiated by the plaintiff No. 1 and for the reason that the property in question on 14.4.2008, when the order for appointment of Receiver was made, was not owned by defendants No. 1 to 3 against whom the entire claim of the plaintiffs lies, I am of the view that the order for appointment of Receiver is not justified, which was even otherwise an Ex-parte order, whereas the actual owners of the property i.e. defendants No. 12 & 13 had not been arrayed as defendants in the instant matter and had been condemned unheard. Therefore, application listed at Serial No. 1 bearing CMA No 303 of 2008 does not merit any consideration and was accordingly dismissed by means of a short order dated 21.4.2015 with cost of Rs. 25,000.00 to be deposited in the Sindh High Court Clinic. The above are the reasons for the short order. Resultantly, the order dated 14.4.2008, whereby, the Nazir of this Court was appointed as receiver in the instant matter stands vacated / recalled.
J U D G E
ARSHAD/