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Petitioner: DHANYANI VS Respondent: PROVINCE OF SINDHonorable Justice Mamoon KaziJhamat Jethanand
1988 C L C 1184
1988 C L C 1184
[Karachi]
Before Mamoon Kazi, J
Mst. DHANYANI‑‑Applicant
versus
PROVINCE OF SIND and another‑‑Respondents
Revision Application No. 170 of 1987, decided on 16th August, 1987
Civil Procedure Code (V of 1908)‑‑
‑‑‑0. XL, R. 1‑‑Application for appointment of receiver‑‑Dismissal of‑‑Courts below concurrently dismissed application filed by petitioner for appointment of receiver holding that petitioner had failed to make out prima facie case‑‑Except mere words of petitioner there being no other material available on record on basis of which order could be passed in favour of petitioner‑‑Courts below in dismissing such application, held, had not exercised discretion arbitrarily.
Jhamat Jethanand for Applicant
ORDER
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.
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.
The miscellaneous application filed alongwith the appeal is also dismissed, having become infructuous.
H.B.T./D‑19/K Revision dismissed.