1979CLC 151 (PLP)

Date of hearing: 13th February, 1979. This revision is directed against the judgment and decree dated 2-f0-1974 passed by the Additional District Judge, Rahimyarkhan. Briefly stated the facts are that the petitioner filed a suit for permanent injunction to restrain the respondents defendants from recovering the sum of Rs. 20,329 from him as arrears of land revenue being the amount of revenue collected by hinr, for the crops of Kharif 1966 and Rabi 1967 of village, Malkpur, Tehsil Liaquatpur, District Rahimarkhan. The respondents-defendants contested the suit, inter alia, on the grounds that the amount has been received by the petitioner as land revenue of village afore mentioned for the two crops in question and neither he accounted for it nor deposited the same despite notices having been served upon him. The plea was also raised by the dependants that the suit was not entertainable in view of section 91 of the West Pakistan Land Revenue Act without having first deposited the amount in question. On the pleadings of the parties the following issues were framed:-' (1) Whether the plaintiff was to deposit the amount in dispute before the institution of this suit? O. P. D. (2) Whether the plaintiff is liable to pay Rs. 20,329 on account of the land revenue of the crops Kharif 1966 and Rabi 1967? (3) Relief.

2. The only evidence led by the plaintiff was his own statement whereas the respondents-defendants tendered in evidence documents Exhs. D/1 to D/7. It may be pointed out here that the evidence was first led by the respondents who sufficed by tendering the aforementioned documents on 24-6-1972. The petitioner-plaintiff raised no objection to the admissibility of the documents in evidence. He then appeared as his own witness on 7-6-1973 and closed the evidence. The trial Court dismissed the suit of the plaintiff by its judgment and decree dated 18-6-1973.

3. The petitioner aggrieved by this decree preferred an appeal before the Additional District Judge, Rahimyarkhan who concurred in the findings of the trial Court and dismissed the appeal with costs by his judgment and decree dated 2-10-1974 impugned in this petition.

4. The learned counsel for the petitioner contended firstly, that the document Exh. D./1 which was made the basis of the judgment by the Courts below though admitted in evidence without objection, had neverthe less to be ignored as was not proved; secondly, that no recovery could be made unless it had been established by the defendants that the petitioner had received the land revenue; and, lastly, that section S1 of the West Pakistan land Revenue Act does not create a bar to the maintainability of the suit as such in a mandatory form. He elaborated his contentions by submitting that Exh. D./1 was only a certified copy and the original having not been produced should not have been relied upon especially when he had denied the making of the statement in question. He also submitted that before the amount could be recovered as arrears of land revenue, it has to be established that the amount was due after having given an opportunity to the defaulter of showing cause against the demand. He also contended that no notice was served upon him and as such the amount as against him did not stand proved as payable and in any case no certificate as required by section 79 of the West Pakistan Land Revenue Act having been issued by the Collector no recovery could be made from the petitioner.

5. The learned counsel appearing for the respondents, on the other hand, contended that all the documents produced by the respondents had been rightly admitted in evidence and there was no objection raised by the petitioner to the admissibility thereof at the time of admission of the docu ments. He further contended that section 74 of the Evidence Act clearly lays down that the document such as Exh. D./ l is a public document and copy thereof could be admitted in evidence and was proof of all the contents thereof by virtue of section 77 ibid. As to the bar to the maintainability of the suit, the learned counsel for the respondents contended that the use of word "may" in section 91 of West Pakistan Land Revenue Act, 1967, does not take away the mandatory nature of prohibition to the maintain ability of the suit if the amount is not deposited. The word "may" in this section, according to him gives option to the defaulter to file the suit if he wants to contest the demand, because it may well be that after deposit of the amount one may or may one file the suit.

6. I am of the view that the contentions raised by the learned counsel for the petitioner are devoid of force. In so far as the first contention is concerned, the petitioner having raised no objection to the admission of the documents, in evidence at the time of tendering thereof by the respondents, he is now precluded to raise any objection in this regard. The documents such as A Exh. D.,/1 clearly fall within the ambit of section 74 of the Evidence Act and so had been conceded by the learned counsel for the petitioner. Section 76 ibid lays down that certified copies of public documents can be had in the manner prescribed therein. Again section 77 of the Evidence Act lays down that such certified copies be produced in proof of the contents of the public documents or part of the public documents of which they purport to be copies. In this view of the matter the production of B certified copy of the statement of the petitioner in the form of Exh. D./ 1 which is duly attested under section 76 ibid was sufficient to prove the contents Thereof. The petitioner .is, therefore, precluded to raise any objection to the admissibility or proof of the public document aforemen tioned. In regard to the second contention raised by the learned counsel it may be pointed out that not one but three successive notices copies of which are Exhs. D./2 to D./4, were given to the petitioner by the Revenue Officer concerned. Exh. D./2 was received by the father of the petitioner who undertook to inform him. Since it appears that the petitioner was avoiding service, notice Exh. D./4 was affixed at the place of residence of the peti tioner. There was thus sufficient opportunity afforded to the petitioner to show cause against the amount sought to be recovered from him as errors of land revenue. As to the correct ascertainment of the amount recoverable as areas of land revenue, it may be pointed out that in the first notice Exh. D./2 which calls upon the petitioner to render accounts, the sum mentioned is Rs. 21,359/33, whereas in the notice Exh. D./4 the amount determined is Rs. 20,

329. This indicates that an ascertainment had been made on the basis of whatever record was available. The petitioner therefore, cannot make any grievance of lack of opportunity to show cause or of non-ascertainment of the amount recoverable as arrears of land revenue.

8. Turning to the last contention raised by the learned counsel that the provision contained 'in section 91 of the Land Revenue Act does not create a bar to the maintainability of the suit when the amount itself is in dispute, suffice it to say that the contention is wholly misconceived. Sec tion 113 of the West Pakistan Land Revenue Act, 1967 empowers the Revenue Officer to recover the amount as arrears of land revenue from a Lambardar or village Headman if he does not deposit in the Government account the land revenue collected by him. The matter, therefore; fell within the jurisdiction or the Revenue Officer. Now section 172 of-the Act excludes jurisdiction of the civil Courts in matters within the jurisdiction of Revenue officers except as provided by the Act itself. The conjunctive reading of both the sections i.e. sections 113 and 172 of the West Pakistan Land Revenue Act 1967, shows that the suit out of which the revision in hand has arisen was not maintainable in the form presented. In fact's clause (xv) of subsection (2) of section 172 ibid excludes specifically the jurisdiction of the civil Court in relation to the controversy involved in the suit, this being the established position that amount in dispute was recoverable as arrears of land revenue. Adverting now to section 91 of the West Pakistan Land Revenue Act, 1967, it appears that this provision was incorporated in the Act to mollify the exclusion of jurisdiction of civil Courts in the matters of amount recoverable as arrears of land revenue by making available a remedy to a person aggrieved by a demand which he denies as not payable by him or recoverable from him and further to keep the check on the functions of the Revenue authorities in this regard by making their such actions amenable to the jurisdiction of civil Courts which are the Courts of general jurisdiction. The Legislature, however, in order to ensure that this provision is not abused by persons against whom demands arise has put in a condition if the liability in respect of the demand is denied the amount should be deposited under protest first and recovered back through a suit. 9: The subsidiary contention raised on behalf of the petitioner that the amount having not been established as arrears of land Revenue, as no certificate under section 79 was issued, the condition precedent of first depositing the amount was not attracted, is also not tenable in view of the position discussed hereinabove.

10. Another question that is worth mention is the competence of the' present revision. itself. The second appeal in a suit does not lie under section 102(b) of the Code of Civil Procedure in cases where the amount or value of the subject matter of the suit does not exceed Rs. 2000. The suit out of which the present revision has arisen though for a permanent injunction, the subject-matter thereof admittedly was Rs. 20,

329. In this view of the matter, therefore, a second appeal was competent and revision, thus, would not be maintainable. Be that as it may, there is otherwise also not merit in this revision petition as pointed out above.

11. In view of the above discussion, this revision is dismissed with costs. Revision dismissed.