1986 PLP 1500 (MLD)

(4) Whether the suit is time‑barred? (5) Whether the suit is not maintainable in its present form? (6) Whether the plaintiff is an agriculturist within the meaning of D. A. R. Act. If so its effect? (7) Whether the plaintiff stood surety for the lessees and if so whether he is liable for the payment of lease money unpaid by lessee. (8) Whether the demand of the defendant is legal, bona fide and within the scope of their authority (9) Whether the claim of the defendant is time‑barred? (10) Whether the plaintiff has any cause of action? (11) What should the decree be?"

5. The appellant examined himself and stated that he had not stood as surety for the lessees and that he received notice on 17‑10‑1967 from Mukhtiarkar, Mahar to pay Rs. 70,529.34 as arrears of Forest Department and remokal fine. He stated that demand was illegal and that Beg Muhammad Shaikh had made arrangement with Forest Department and made him liable. In cross‑examination he denied that he had stood as surety. Ihsan Ahmad, D.W.1 stated that surety bond was taken from Abdullah for a sum of Rs. 60,000 and he had read agreement with lessees as well as surety, bond. He stated that bond was executed before Mukhtiarkar. He further stated that Abdullah had admitted before him that he had executed the surety bond and that the bond was sent to the office for making entries in the Register. He was D.F.O. at the relevant time. In cross‑examination he stated that the lease was joint in favour of Beg Muhammad Shaikh and Haji Siddiqui. This witness had committed a mistake there as it was Muhammad Ishaq, who was the second lessee. He stated that the surety bond contained the name of the Contractor, details of contract, amount for which the contract was given, the amount of the surety and name and the address of the party. He has not stated anywhere as to what were the conditions of the said bond. He did not know the names of witnesses of the bond. He stated that he did not recognize the signature of Abdullah. He stated that bond in question was sent to the Chief Conservator and remained in his office. No copy of the bond was kept by him. He stated that the entries are made in Register in respect of the agreement and the surety bond. He further said that both the lessees had applied for declaring them as insolvent. This is again misstatement because it was only Beg Muhammad Shaikh, who had applied and not Muhammad Ishaq. D.W.2, Ghulam Nabi had produced Registers Exhs. 88 and 89 where there is an entry in res fyecf of the appellant having stood surety in the sum of Rs. 60,

000. But there is no further statement as to what were the conditions of the surety. This witness has stated that the entries in Exhs. 88 and 89 were not in his handwriting. Exh. 90 shows that Beg Muhammad Shaikh was declared as insolvent. D.W.3, Ataur‑Rehman stated that he had made entries in Exhs. 88 and 89 as he was clerk in 1953 in Larkana Forest Division. He had not put his signature or initial under the entries. He further stated that entry at Column 7 of Exh. 88 was made by him later than the other entries. He stated in cross‑examination that surety bond was sent to the Chief Conservator, Forest, for counter‑signature. He did not remember whether he received back the surety bond or not. He stated that the Register did not bear the signature of any officer. D.W.4 Khan Muhammad stated that he had initialled Exh. 88 and Exh. 89 as he used to visit subordinate offices for inspection purposes as he was Office Superintendent of Chief Conservator of Sind. He could not say whether he had checked the particular entries on the date of his inspection: He had also initialled Exh. 89 on 24‑10‑1953 and written the word "checked". He stated in cross that before 19‑3‑1954, he had never put his initial or written "checked" anywhere.

6. The learned Judge dismissed the suit and held that presumptive loss of the security document was proved and the appellant was held to be responsible for loss of the said document and, therefore, secondary evidence of the` existence and contents of said document was allowed under section 65 of Evidence Act. It was held that appellant had admitted to execute the bond and, therefore, it was proved that the appellant had bound himself to pay Rs. 60,000 with interest in case the lessees defaulted in payment. He however, held that the Civil Court had the jurisdiction to decided as the contention of the plaintiff was that the act of Revenue authorities was without jurisdiction and, therefore, suit was not hit by section 11 of Sind Revenue Jurisdiction Act. The suit was held to be properly stamped. The suit was held to be covered by Article 120 of Limitation Act and, therefore, within time. It was further held that suit was properly constituted and that Mukhtiarkar was not even a necessary party. .

7. However, it was held that since the appellant had not sought a declaration that he was not liable to make any payment to the defendant, therefore, no injunction could be issued in respect of that payment. Deccan Agriculturist Relief Act was held to have no application in the case. In respect of the plea that the suit was barred under section 12 of C.P. C. the Court took judicial notice of the three suits which had ,been filed earlier by the appellant in 1961. 1962 and 1963, although no one had proved the same and nor the pleadings or the judgments had been exhibited, and it held that the suit being similar was barred. It further held that proceedings of recovery were not a continuing cause of action and, therefore, fresh suit could not be filed every time fresh notice of demand was issued. It was further held that the recovery of arrears of land revenue, could be made within a period of 60 years and, therefore, it was not time barred at the time when notice was issued. He also held that plaintiff had not come to Court with clear hands as he had suppressed the factum of the filing of three earlier suits.

8. Mr. K.B. Bhutto submitted that learned Additional District Judge, committed a mistake by allowing secondary evidence in respect of the proof of the Security Bond when it's destruction had not been proved by any one. He further submitted that neither any D.W. had proved the destruction or loss of the security bond nor any explanation had been given as to how it had been lost and nor still any one had proved that the respondents had taken care to preserve that document and it had not been misplaced or destroyed due to their own negligence or default. Submission was that the basis for leading secondary evidence had not been laid.

9. The submission appears to be correct. The said document was proved to have been sent, for his counter‑signature, to the respondent No. 2, by D.F.O. Ahsan Ahmed. Ataur Rehman copied it and Khan Muhammad inspected it. But, thereafter there was no trace of it. In these circumstances it is not established whether the document has been lost or destroyed. No one has stated as to what effort was made to trace that document. Even this fact has not been proved as to whether the respondent No.2 had in fact counter‑signed that document. No proof has been tendered as to what care was taken to preserve the said document and, therefore, if it has been lost then it must be due to carelessness or negligence or default of the respondent. There was no evidence tendered about the circumstances in which the document was lost. The learned Judge has said that the defendants had succeeded to prove loss presumptively. I am quite clear that such presumption could not be raised.

10. The Government counsel had merely offered an oral explanation that it may have been misplaced due to the shifting of offices of Chief Conservator of Forest to Lahore or due to its being ah old document. But this was no proof of the loss or destruction of the said document and even if this reason was correct then the loss was obviously due to the carelessness of respondent in shifting of offices or handling of documents and, therefore, section 65 was not attracted.

11. But what is surprising in this respect is that the learned Additional District Judge, has blamed the appellant for the loss of the said document and held that he manoeuvred to get that document displaced. The reason given was that the appellant had filed three suits, one after the other and either withdrew them or allowed them to be dismissed in default. I can only say that these observations were completely unjustified and were not proved by anyone and nor any suggestion had been made to the appellant that he had manoeuvred to get that document displaced. The learned Judge made that presumption without any basis and it was, therefore, an arbitrary and baseless finding.

12. It is thus clear to me that no loss of the said document ha been established. Nor the respondents had proved that they had taken good care of the said document. Moreover, there was not the leas proof that the appellant had been responsible to get that document displaced and, therefore, secondary evidence could not be tendered about the existence or the contents of the said document and consequent the said document had to be completely ignored. The net, result, therefore, is that in the absence of the said document there was n liability of any sort imposed upon the appellant and much less he counsel be burdened with the responsibility of any arrears of land revenues and hence notice of recovery had no basis in fact or in law .

13. Moreover, there is hardly any evidence about the contents o the surety deed. Merely exhibits 88 and 89 where there is a mention that the appellant had stood as surety for the lessees cannot be treated as contents, because no terms and conditions are specified therein as to how the liability will arise. Moreover, there is no mention at all that the liability will also include about remokal fine, but I find that the remokal fine is also sought to be realized from the appellant. I a quite clear that the contents of the surety bond have not been proved at all.

14. The net result is that the surety bond having not been prove to have been lost, and the same having been produced in Court could not be held that there was any liability against the appellant. Moreover, the contents of the document having not been proved the extent of the liability was not known and in there circumstances there was no question of creation of any liability against appellant under the Land Revenue Act. There being no liability at all there was no question of there being any land arrears and hence the suit of the appellant had to be decreed.

15. The prayer of mere injunction without declaration was held to be not maintainable by Additional District Judge. But the appellant got over that difficulty by moving application before this Court for amendment of his plaint to include a prayer for declaration that the recovery proceedings including coercive process was illegal. The said application was allowed by this Court after notices to the other side and consequently the amended plaint was filed. Thus the basic objection to the form of the suit is lost and the declaration and injunction can now be granted. I therefore, feel no difficulty in granting the declaration that the recovery of the amount from the plaintiff on the basis of the surety bond in question is baseless and illegal and the defendants are restrained from recovering the same.

16. In respect of issue No.1, the learned Additional District Judge, has taken judicial notice of certain pleadings in Suits Nos.31 of 1961, 2 of 1962 and 20 of 1963 as having been filed by the plaintiff. The first two suits were dismissed as withdrawn and the other was alleged to be dismissed for default. Therefore, present suit was held to be barred. The documents taken into consideration were not allowed to be produced by the same Court and, therefore, no notice should have been taken of the same. Moreover, the respondent had not put any question to the plaintiff in respect of these suits and hence there was no justification to take any judicial notice of the same. Learned Judge has relied upon section 57 of the Evidence Act. But I find that section 57 of Evidence Act does not allow taking judicial notice of any certified copy of any proceedings. Then again I have found that order of dismissal for default of Suit No.20 of 1963 is not even certified to be true copy, and there are no copies of the orders in the other suits. Therefore, no judicial notice could be taken. The Additional District Judge, has relied upon p L D 1961 B J 96 for relying upon these un-exhibited documents. But in that case I find that the learned Judge had relied upon a document filed by a party, against it only, and not against the other party but the learned Additional District Judge, has made use of a document, not exhibited, in favour of the same party that had sought to produce it but had failed. This was not justified. No document can be used against a party unless he had been confronted with the same and was allowed to explain the same. Therefore, reliance upon these documents was no in accordance with law.

17. In this respect what is more important was that the appellant had pleaded that the recovery proceedings was a continuing wrong and he could file a suit where coercive process was used against him. The learned Additional District Judge, did not agree with this submission and held that injury was completed on the day that the first notice of recovery was issued and, therefore, it was not a continuing wrong. The view of the learned Additional District Judge, is not correct. The injury, as alleged, does not complete with the mere issuance of notice for recovery of the amount till the amount is actually recovered. Mer issue of notice does not complete the injury but gives rise to a cause of action for threatened injury. Every time a fresh notice of recover is issued a fresh cause. arises. But once the recovery under a notice is completed then the injury is finalised once and for all and thereafter no new cause of action can arise. Therefore, in this case even if suit was actually instituted in 1963 after issue of notice of recovery Mukhtiarkar, but the amount was not realized somehow or the other and the suit was allowed to be dismissed for default in 1964, but the amount involved was not actually recovered for a good deal time, as was the case in this case, and a fresh recovery notice was issued in this case in 1967, therefore, in these circumstances it was a fresh cause of action for a suit which was filed in 1968, as it was a case of a continuing wrong and not a completed wrong.

18. On issue No: 9 the learned Judge was right in holding that the Government dues can be recovered in 60 years, but in the present case no Government dues had been proved to be recoverable.

19. The result of this discussion is that the suit of the appellant/ plaintiff as amended is decreed with costs and the impugned judgment and decree dismissing the suit is hereby set aside. For these reasons I had allowed this appeal by oral order on 5‑12‑1985. M.Y.H Appeal allowed.