1989 PLP 483 (MLD)

Ahmad Awan for Respondent. Date of hearing: 29th January, 1989. This judgment will dispose of the FA.O. in hand, namely FA.O. No. 198 of 1986 as well as cross‑objections, namely, C.M. No. 4538‑C‑1986 filed therein.

2. Facts giving rise to these proceedings are that certain premises belonging to Haji Mirza Jan Muhammad, who is respondent in the FA.O. and will hereinafter be referred to as the respondent, were requisitioned by the Government of the Punjab on 3rd April, 1983, through its Secretary in the Home Department, under subsection. (1), section 3 of the West Pakistan Requisitioning of Immovable Property (Temporary Powers) Act, 1956. Province of Punjab and the said Secretary are appellants in the FA.O. and will hereinafter be referred to as such. Monthly compensation of Rs. 1,000 was fixed by the appellants for the said premises but the respondent demanded compensation at the rate of Rs. 15,000 per mensem (p.m.). As his request was not acceded to, he made an application for determining fair compensation, under section 6 of the said Act which was made over to the arbitrator referred to in section 6 of the said Act. In this case the District Judge, Lahore, was the arbitrator. The application was resisted by the appellants. After recording evidence of the parties and also obtaining report of a Local Commissioner, the learned arbitrator fixed compensation at the rate of Rs. 5,065 p.m. Feeling aggrieved by the order of the learned arbitrator, the appellants have filed the said FA.O. while the respondent has preferred the cross‑objection mentioned at the outset.

3. In their FA.O. the appellants also made a petition, i.e. C.M. No.967‑C 1986 for permission to produce certified copy of a sale‑deed as additional evidence. According to the appellants, the said sale‑deed is in regard to the sale of the premises in dispute in favour of the respondent. Only‑reason given in the petition for not producing copy of the sale‑deed before the learned arbitrator or the Local commissioner is that it "was not available at the time of filing of the appeal and it has since been found, else it would have been placed on record before the learned arbitrator". No explanation whatsoever has been furnished as to why the copy of the sale‑deed, which is a registered document, could not be obtained by the appellants during proceedings before the learned arbitrator which started as far back as on 1983 or before the Local Commissioner. Date on which application for supply of the said copy was made or the date on which the copy was delivered to the appellants was also not furnished. Curiously enough, these dates also do not appear on the copy appended to the said petition. In the circumstances, I am not inclined to allow the appellants to produce the said copy as additional evidence because it will, in a way, have the effect of re‑opening the whole case which is already pending finalization for the last 6 years. Petition made in this regard is, accordingly dismissed.

4. As regard the application made to the learned arbitrator, it was contended by learned counsel for the appellants that it was not competent because the respondent had agreed to receive Rs. 1,000 p.m. as compensation for the disputed premises. In this connection reliance was placed by him on clause (a) of subsection (1) of section 6 of the said Act This objection was not raised by the appellants in their reply to the above application. Instead it was pleaded by them that before filing the application the respondent ought to have negotiated the matter relating to compensation with the Education Secretary of the Government of the Punjab inasmuch as the premises were required for a school. Accordingly, issue No. 1 was framed by learned arbitrator to the following effect and the same was decided against the appellants:‑‑ Was it necessary in law for the petitioner to first negotiate with the Government for the determination of compensation? O.P.R. Learned counsel for the appellants did not question the finding of the learned arbitrator on the above issue. The appellant's plea in this regard negates the contention of the learned counsel for the appellants that there was agreement with regard to the quantum of compensation. Needless to say that an agreement is outcome of negotiations and if there were no negotiations, as indicated in the appellants' reply to the above application, the question of any agreement having been reached would not arise. There is also no evidence regarding the so‑called agreement between the parties. If respondent received rent at the rate of Rs. 1,000 p.m. it will not justify a conclusion that there was an agreement between the parties in this behalf because it was stated by the respondent, both in this application as well as in his statement as A.W.1, that he has all along been clamouring for getting more compensation. Acceptance of compensation by him at the: rate, of Rs. 1,000 p.m. would, therefore, be an acceptance under protest. In the circumstances, I am unable to agree with learned counsel for the appellants that there was an agreement between the parties with regard to payment of compensation at the rate of Rs. 1,000 p.m. Argument of the learned counsel in the matter is, accordingly, repelled.

5. Learned counsel for the appellants did not find any fault with the finding of the learned arbitrator with regard to the cost of the land underneath the premises in question. He simply assailed his finding in respect of cost of the building raised thereon. This was fixed by the learned arbitrator on the basis of the appellants' evidence and the report of the Local Commissioner appointed by him. The appellants did not produce any evidence derogatory to the finding of the learned arbitrator in respect of the cost of construction. He gave cogent reasons for recording that finding. Learned counsel for the appellants did not say anything against his reasoning. I, therefore, uphold his conclusion in regard to the cost of construction.

6. In view of what has gone above, the appeal fails. It is, therefore, dismissed.

7. By filing cross objections (C.M. No. 4538‑C‑1986) the respondent challenged the finding of the learned arbitrator with regard to the cost of land. These objections, however, were not pressed by the learned counsel at the time of arguments and are, accordingly, dismissed.

8. Parties shall bear their own costs both in the appeal as well as in the cross objections. H.B.T./P‑67/L Appeal dismissed.