ABDUL KARIM vs ABDUL KARIM

ORDER

1. This revision is directed against the order dated 24-8-1993 passed by the learned IIIrd Additional District Judge, Karachi South whereby C. M. A. No 58 of 1995 filed by the applicant against dismissal .Of his application under Order 40 (1) read with section 151, C. P. C. Was dismissed.

2. According to applicant he is tenant in respect of shop No. 1, Plot No. SB-1/25, Mir Karam A.I Talpur Road, Karachi and owner of business which is being carried out in the name and style of Korangi Pan Shop in the name of his son Muhammad Saleem and he is the sole proprietor thereof. It is his case that he had employed the respondent as servant on daily wages to look after his business, but allegedly on 15-1-1991 the respondent took over the possession and control of the said shop as well as the business. The applicant, therefore, filed Suit No. 379 of 1991 on 18-3-1991 against the respondent for the following reliefs:-- (a)"Judgment and decree for delivery of possession of Shop No. 1, situated on Plot No. S.B.1/25, Mir Karam A.I Talpur Road, Saddar, Karachi, and the business therein under the name and style of 'Korangi Pan Shop', in favour of the plaintiff and against the defendant and all persons holding the possession thereof for, through or under the defendant.

3. (b)Judgment and decree in favour of plaintiff and against the defendant for recovery of Rs. 20,000 only (Rupees twenty. Thousand only) as value of merchandise in the aforesaid shop premises entrusted to defendant, with pandente lite interest/dividend thereon at 15 per cent. Per annum from date of suit till realisation.

4. (c)Judgment and decree in favour of plaintiff and against the defendant for recovery of Rs.8,000 only as average not business income for the period from 15-1-1991 to 15-3-1991 at Rs.4,000 per month, and for pendente lite average not business income from 16-3-1991 till possession of aforesaid shop premises and business is delivered to the plaintiff, with interest/.Dividend thereon at 15 per centum per annum on accrued business income and future business income from elate of suit till realisation of amount (d)Judgment and decree for perpetual injunction, against the defendant, his agents, servants, partners, attorneys and all persons acting for, through or under the defendant, restraining them from transferring the possession, charge, control and management of Shop No. 1 in the building situated on Plot No.S. B. 1/25, Mir Karam A.I Talpur Road, Saddar, Karachi, and the business thereof under the name and style of "Korangi Pan Shop", and/or making any additions and alterations in the said shop premises and fittings and fixtures thereof in any manner whatsoever.

(e) For costs of this suit against the defendant."

5. Alongwith the plaint application under Order 39, rules 1 and 2,. C. P. C. Was submitted which was granted by the learned trial Court on 24-8-1993 but the application under Order 40, rule 1, C. P. C.

6. For appointment of receiver of the shop in question was dismissed. The appeal preferred against the dismissal order was also dismissed by the, learned Appellate Court and this order has now been impugned.

7. I heard the learned counsel for the parties at length and perused the record.

8. Learned counsel for the applicant mainly contended that the leered 1st Appellate Court erred in law by dismissing the application for appointment of receiver on irrelevant consideration and thus, failed to exercise the jurisdiction vested in it by law and also acted illegally and with material irregularity in exercise of it's jurisdiction.

9. Learned counsel for the respondent supported the impugned judgment. Appointment of receiver is discretionary with the Court and that discretion can be exercised by following the following principles: (a)Powers to appoint the receiver should be sparingly used; (b)it should be exercised for the safeguard of the interest of all the parties as well as the property which is subject-matter o f the litigation; (c)the possession of persons bone fide in occupation of the property should not be disturbed unless there are allegations of wastage or dissipation of property or apprehension of irreparable loss and injury. (See Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others (PLD 1976 Karachi 1811 and Shaikh Abdul Shakoor v. Shaikh Abdul Kadir (1982 CLC 707).

10. The learned Appellate Courts, below while passing the impugned orders took into consideration all these principles. I hardly find any ground to interfere with the impugned orders which are just and proper. Therefore, this revision having no merits is dismissed in limine.