DHANYANI Versus PROVINCE OF SIND

ORDER

1. The applicant filed a suit before the learned Sr. Civil Judge, claiming to be owner of a garden and alleging that the respondent No.2 had forcibly occupied the same and had cut about 45 mango trees standing there and was further bent upon cutting the rest of them. Alongwith that suit, an application under Order 40 Rule 1, C.P.C. was also filed by the applicant, requesting the Court to appoint a receiver pending final disposal of the suit. This application was rejected by the learned Civil Court vide order dated 10‑5‑1985. The appellant filed appeal before the learned District Judge, Thatta which was also dismissed vide order dated 12‑3‑1987.

2. The only contention of Mr. Jhamat Jethanand, learned counsel for the applicant is that the orders passed by the learned two courts below are fanciful and arbitrary. This contention appears to be without merit. Both the learned courts below have held that the applicant had failed to make out a prima facie case for appointment of a receiver. The prayer of the applicant was rejected by the learned subordinate courts as they found that no allegations had been made in the plaint to the effect that the defendant in the suit was bent upon causing further damage to the remaining mango trees. Needless to say, that onus was on the applicant to establish a prima facie case for appointment of a receiver and apart from the allegations made by the applicant in that affidavit filed alongwith the application under Order 40 Rule 1, C . P. C . alleging that the respondent was bent upon cutting his entire garden, there was no other material before the courts below for passing an order for appointment of a receiver. These allegations in the affidavit were denied by the respondent in his objections counter‑affidavit. Under the circumstances, I do not find that discretion has been arbitrarily exercised by the learned District Judge, Thatta. There was only word of the applicant against that of the respondent and there was no other material available before the A learned subordinate courts on the basis of which an order could be passed in favour of the applicant. In view of the circumstances, this revision is dismissed in limine.

3. The miscellaneous application filed alongwith the appeal is also dismissed, having become infructuous.

4. H.B.T./D‑19/K Revision dismissed.