DR. ARSHAD KAMAL KHAN Versus MRS. SAEEDA KHALIL KAMAL AND 2 OTHERS
ORDER
This application under section 3 of the Contempt of Court Act, 1976 and Article 204 of the Constitution of 1973 has arisen under the following circumstances.
2. That Suit No. 2/81 for dissolution of partnership, rendition of accounts, and for appointment of the plaintiff as Receiver of 'Ara Medical Centre' it Nazimabad was filed in this Court by Dr. Khalid Kamal Khan, the respondent No.2 herein. An ad interim order appointing the Nazir of this Court as Receiver of the property in suit was passed which was later on confirmed on 1-3-1981. The Receiver was authorised to take over possession of all the properties of the partnership firm. By a judgment, dated 17-3-1986 the suit was dismissed and, consequently, the Receiver were discharged. The operation of the order was, however, stayed for thirty days.
3. Dr. Khalid Kamal Khan, the plaintiff in the above suit filed High Court Appeal No. 62 of 1986 and obtained an interim order to the following effect:-
"We would, therefore, order that Ara Medical Centre shall remain under the Receivership of the Nazir of this Court during pendency of the appeal on the terms and conditions reflected in order, dated 21-5-1981 passed in High Court Appeal No. 25 of 1981 which the parties have abided by since then."
4. Dr. Arshad Kamal Khan, the applicant abovenamed filed a Suit No. 143/81 in this Court against Mrs. Saeeda Kamal Khan and Dr. Khalid Kamal Khan (respondents Nos. 1 and 2) for permanent injunction. In this suit both the abovenamed respondents filed a joint written statement through their attorney Allah Wasaya, who is also the father of Mrs. Saeeda Khalid Kamal Khan. In this joint written statement it was, inter alia pleaded that this Court had ordered the closure of partnership business and had appointed the Nazir as Receiver. It is then stated that Mrs. Saeeda Khalid Kamal Khan, the respondent No. 1 abovenamed, filed an application for ejectment under section 15 of the Sind Rented Premises Ordinance (Rent Case No. 621 of 1987) in the Court of VIth Senior Civil Judge and Rent Controller (West) Karachi against Dr. Khalid Kamal Khan (respondent No.2 abovenamed), Dr. Hamid Kamal Khan and Dr. Arshad Kamal Khan, the applicant abovenamed, as owner of the property No. II-A-7/16, Nazimabad, Karachi which was let out to the partnership firm of which the said three persons were the partners. The fact of appointment of Receiver in the above suit was also within the knowledge of Allah Wasaya, the respondent No. 3 herein. The partnership, the counsel so urged, between the parties worked only upto 16-1-1980 whereafter it was replaced by the arrangement reflected in the document filed as Exh.7/3 in Suit No. 2/81.
5. The learned counsel submitted that the act of filing the ejectment application against the three former partners of the partnership firm which had ceased to exist from 16-1-1980 was an act of committing contempt of Court. The counsel further contended that it tantamounts to interfering with the process of law. In support of his contention the learned counsel placed reliance on Head Notes 64 and 66 of the 'Oswald on the Law of Contempt of Court', Pakistan) Edition, by Sheikh Abdul Halim, which read as follows:-
"64. Interference with receivers. -- Any interference without the leave o the Court with the possession of a receiver appointed by the Court, or any disturbance of that possession, is a contempt of Court, and whether it be by virtue of a claim paramount to or under the right which the receiver was appointed to protect. The offender is liable to be committed and in extreme or aggravated cases will be committed although the Court is generally satisfied with ordering payment of the costs and expenses occasioned by the improper conduct. The fact that the order appointing the receiver was improperly procured is no justification for such interference or disturbance, for application can be made to the Court to test the validity of the order.
Disturbance of a receiver may be caused in various ways; for instance, by bringing an action of ejectment against him without the leave of the Court that appointed him, by taking forcible possession of estates of the rents and profits of which a receiver has been appointed; by obtaining the appointment of sequestrators of the profits of a living of which a receiver has been appointed; by levying an execution upon partnership assets in a receiver's possession; by a bill of sale-holder taking forcible possession of chattels in such possession; by interfering in the management of a business in the hands of a receiver and taking the management out of his hands; by sending circulars to the customers; by inducing employees to leave the business and take employment in a competing business. It has, however, been held not to be a contempt for a late manager of a business appointed by the Court to engage, after he has been removed from his office, in the same kind of business, and to solicit the customers of the old business which he managed,
66. Interference with a receiver pendente lite. -- Interference with a receiver appointed pendente lite is a contempt of Court; thus, to take a paper from the possession of such a receiver and destroy it is a contempt."
He also made a reference to Head Note 15 of "Law Relating to Receivers" by Sir John Woodroffe VIth Edition which is to the following effect:-
"15. A receiver duly appointed is from the moment of his appointment an officer of the Court and entitled to the possession of the property comprised in the order appointing him. The effect of the appointment is to remove the parties to the action from the possession of the property, subject to this that the Court cannot remove from the possession or custody of property any person whom the parties to the suit or some or one of them have or has not a present right so to remove."
Lastly he cited A I R 1958 Punjab 471.
6. Mr. Shamshad Alam Lari, the learned counsel for the respondents, who appeared in response to the pre-admission notice issued to the respondents vehemently opposed the application. He urged that Mrs. Saeeda Khalid Kamal Khan the respondent No.1, was not a partner of the firm which came to an end on 16-1-1980 but she was the landlady of the premises wherein the partnership business was carried on and as such she acted within the exercise of her legal right in filing the ejectment case against the firm. There was no order against her preventing her to file any ejectment proceedings against the firm or its partners. He urged the Receiver was appointed for the purposes of business of partnership firm it had nothing to do with the legal rights of the landlady to institute ejectment proceedings under the Sind Rented Premises Ordinance. He vehemently urged that no contempt whatsoever has been committed by the respondents in any manner.
7. I have given my earnest consideration to the submissions made by Mr. Abdul Rauf, learned counsel for the applicant and have carefully examined the law on which he sought to place reliance and I am clearly of the opinion that there is no substance in this application. It is, if I may say so, wholly frivolous and uncalled for. The contention of the learned counsel for the appellant is that the filing of the ejectment application by the respondent No. 1 alleging to be the landlady of the premises against the partners of the dissolved firm cannot by any stretch of reasoning be brought within the purview of 'interfering with the process of law' which renders a person liable for contempt of Court. It is an undisputed fact that the respondent No.1 was not, a party to the Suit No. 2/81 in which the order for appointment of, Receiver was passed. She may be knowing, the fact of passing of an order of appointment of Receiver in respect of the partnership business but that by itself could not legally be taken to be an order restraining her from proceeding in the exercise of her rights as an alleged owner of the property wherein the business of partnership was carried on by the three partners of the firm as mentioned in the ejectment application. If any of the parties to the above suit would have committed the contempt of Court, then he could have been proceeded with for contempt of Court in that suit whereas no such effort was made in the instant case obviously for the reason that Mrs. Saeeda Khalid Kamal Khan the applicant in Rent Case No. 621 of 1987 was not a party in the suit.
8. Making of an application for contempt of Court is quite a serious matter which should, in my opinion, be not resorted to without there being a justicable cause therefor. In the instant case I feel sorry to observe that the applicant had presented this application under section 3 of the Contempt of Court Act, 1976, without any justification. I do not find that any of the facts of the Punjab case have any similarity with the facts of the case in hand. No effort has been made by Mrs. Saeeda Khalid Kamal Khan to disturb the possession of the Receiver of the goods or property of the partnership. Likewise the other two references to Owswald On the Law of Contempt and the Law Relating to Receivers were equally misconceived inasmuch as none of the portions to which the learned counsel has drawn my attention as noted above has any relevancy to the facts of the instant case.
9. In the result, the application is dismissed in limine.
S.A./A-267/K Application dismissed in limine.