P L D 1967 Karachi 216 (PLP)

"in respect of any act purporting to be done under this Order" read with the words: "no suit . . . . shall . . . . be commenced otherwise than within six months next after the accrual of the cause of action." are a bar to the maintenance of this suit. His argument is that the defendant has demanded interest for the non‑payment of a part of the price of land. The interest was demanded by the defendant ride its letter dated 15th of October 1962, which means that the cause of action had arisen on that date. The present suit was instituted on the 2nd of November 1963, which date is clearly beyond six months' time within which it ought to be brought in terms of the above‑quoted provision of law. In this view of the matter, according to counsel, it is barred by limitation.

3. Mr. Sayed Haider Ali has replied on behalf of the plaintiff that this is not a suit which falls within the class of those suits which may be "in respect of any act purporting to be done under this Order". His explanation is that the purposes for which the Karachi Development Authority has been established under the Order are stated in the preamble of the Order. If they are taken into consideration, then it will be found, according to counsel, that the demand for recovering interest on a part of sale price is not within that scope and, therefore, not an act purporting to be done under this Order. The preamble is as follows:‑ "Whereas it is expedient to make provision for the development and improvement of certain areas in the Federal Capital by opening up congested areas, laying out or altering streets, providing public amenities like parks, gardens and playgrounds, executing works for water supply and sewerage or by demolishing, improving or constructing buildings; for the acquisition of land for such development or improvement, including the re‑housing of persons affected thereby and certain other persons, for the preparation and execution of development or improvement schemes, building research schemes and similar other schemes; and for matters connected therewith or incidental thereto: " The last part of the above preamble appears to be very wide and; therefore, it is prima jack difficult to hold that the subject matter of the present suit is dot a matter "connected" or "incidental" to the purposes which are detailed in the preamble. But in this case it is unnecessary to decide this question for the reasons to be given in the following paragraph.

5. The cause of action; according to the plaint, accrued on the 17th of September 1963. The relevant paragraph of the‑ plaint is as follows :‑ "The cause of action has arisen in the circumstances finally on 17th September 1963, and the Honourable Court has jurisdiction in the matter herein." The importance of the date mentioned in the paragraph is that on that date the defendant wrote to the plaintiff that it was affording the last opportunity to the plaintiff to pay the amount of Its. 1,29,000 in six equal monthly instalments. "The first instalment", it goes on to say, "be paid within seven days from the date of receipt of this notice, failing which action, to recover the above‑mentioned amount as arrears of land revenue shall be taken under the provisions of President's Order No, 5 of 1957 as amended by the Karachi Development Authority (Amendment) Ordinance, 1962". This shows that the claim for the amount of interest was combined with the threat of taking proceedings to recover the sum as arrears of land revenue. The intention admittedly was to take action under Article 147‑A of the order which runs as under:‑ "147‑A. Sums due to authority to be recoverable as arrears of land revenue: All sums due to the Authority shall be recoverable as arrears of land revenue Provided that no sum shall be recovered unless three months: notice has first been given by the Authority to the person liable to pay the same, that he may pay by such instalments as may be fixed in the notice, and that upon his so paying every instalment on or before the date the recovery may be suspended, but that it shall otherwise proceed as to the entire sum outstanding in case of any default in any instalment including the first." The above threat for recovery in the 'particular manner which is available to the defendant gave the cause of action to the plaintiff to bring this suit. Without that threat to recover the money claimed, the plaintiff would have had no reason to bother for coming to this Court.

6. Mr. Waheed Faruqui has contended that the claim of the defendant was, admittedly, made by its letter dated the 15th of October 1962 ; therefore, that was the date on which the cause of action arose. This view, according to counsel, is‑ supported by the fact that issue No: 4 embodies the objection of the plaintiff to that demand. He argued that the occasion for using a particular method to recover the demanded sum would not have arisen if the cause of action to recover it was not existing. That cause of action arose against the plaintiff when the letter of the 15th of October 1962 was written by the defendant. 7 To my mind, the more accurate and sounder view in this respect is that the letter of the 15th of October 1962, relates to the cause of action of the defendant and not of the plaintiff. The defendant did not bring its suit with the period of limitation after that and if there was no subsequent date of the cause of action, then the defendants suit for recovering the amount Claimed by it might be barred by time. But in so far as the case of action for the plaintiff is concerned, it arose when the threat to recover the amount in a particular manner was combined with it by the defendant. So long as that threat was not held. out, the plaintiff could afford not to bother about the defendant's claim. That threat arose when the defendant wrote the letter of the 17th of September 1963. It is no doubt connected with the previous letter because the threat was combined with the claim which was contained in the earlier letter. But the claim of the defendant became a cause of action for the plaintiff when it was combined with the threat In this view of the matter the date o which the cause of action for bringing this suit arose for the plaintiff is the 17th of September 1963. If this is the date on which the cause of action arose, then the suit having been instituted on the 2nd of November 1963 is within six months of it.

8. In conclusion of the above discussion, I hold that this suit is not barred by limitation.

9. Taking up issue No. 5, I refer to Article 147‑A of the Order, which has been reproduced above. The provision consists of a few words if the proviso to it is excluded from consideration for the time being. They indicate that the defendant can recover as arrears of land revenue any sum "due" to it. The question which arises here is as to whether the money which is claimed by the defendant is due to it or not. According to the defendant it is due to it; but the plaintiff does‑not take the same view and has questioned its liability. In the presence of such a dispute it is not open to anyone of the parties to say that its point of view is binding on the other. In this view of the situation, the defendant is not in a position to say that the amount claimed by it is due to it from the plaintiff in spite of the plaintiff's objection to it. In other words, the sum which is claimed by the defendant constitutes a claim of the defendant but it cannot be taken to be sum due from the plaintiff to the defendant.

10. In this respect, reference may be made to a Division Bench Judgment of this Court in Government of West Pakistan v. Abdul Majid (P L D 1963 Kar. 653). I was a party to it. The following discussion which is contained in it appears to be relevant. "Mr. Fazeel the learned Advocate appearing on behalf of the respondent No. 1 who replying to this final contention of Mr. Farooqui reminded us that the important words used in this bond are to pay to Government alt sums due to it'. Similarly in section 6 of the Food-grains Nationalisation Board Act, 1951 the important words again are `the dues of the Board'. Mr. Fazeel referred us‑to Wharton's Law Lexicon, Fourteenth Edition at page 355 where the word `due' is defined as `that which law or justice requires to be paid or done'. Mr. Fazeel pointed out that an indispensable prerequisite of a due is that the sum of money must be fixed, determined and established. In this case no such fixed or determined sum has been mentioned, and the statement of account Exh.27 is at most a statement of claim denied and disputed by his clients." It is relevant to consider here that the Revenue Law under which the defendant proposes to proceed against the plaintiff contains provisions under which disputes relating to land revenue recoverable under that the law can be adjudicated upon and determined, because the method of recovery in terms of the Revenue law comes into operation after the adjudication of disputes. The above‑quoted provisions of section 147‑A merely provide a method of recovery. It is presumed in them that the amount which is sought to be recovered by that method has been found to be due. In these circumstances, the defendant has first to get its claim duly adjudicated so that it assume the form of "dues". The steps for recovering the dues can be taken after such adjudication only: In this respect a reference to the observations made in the, case of Abdul Latif v. Government of West Pakistan (PLD 1962 S C 384) will be instructive. I wish to be excused for making that reference in the language of the judgment of this Court, which bad been mentioned above. The relevant part of it is as follows:‑ "Finally, Mr. Fazeel referred us to a recent decision of the Supreme Court of Pakistan in the case of Abdul Latif v. The Government of West Pakistan. In this case a deficiency of Rs. 7,484‑3‑3 in the stamps of the treasury was found at the end of the appellant's term of contract as a treasury contractor and this sum was sought to be recovered from the appellant as arrears of land revenue. The High Court came to the conclu sion that the petitioner was a defaulter and that the sum due from him could be recovered as arrears of land revenue. In appeal, however, it was pointed out by their Lordships of the Supreme Court of Pakistan that

'a right construction of the Act can only be attained if its whole scope and object, together with .an analysis of its wording and the circumstances in which it is enacted are taken into consideration. From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of land revenue and then comes the machinery for realisation of such revenue. It is, therefore, manifest that before the operation of the machinery section for realization of the arrears, the authority concerned must decide whether there is an arrear due or not.' Applying these observations to the facts of the present case Mr. Fazeel submitted that unless the amount of loss or damage caused by his client to Government .had been precisely fixed or determined; proceedings under the Land Revenue Code against him would not lie." The situation in this case, owing to the dispute that the plaintiff has raised to the claim of the defendant and the absence of adjudication of the dispute, is almost the same. as contemplated in the above quotation. My conclusion, therefore, is that it. is premature for the defendant to take any steps under Article 147‑A of the Order to recover the amount of Rs. 1,29,000 from the plaintiff as arrears of land revenue. The second issue is decided accordingly.

11. The conclusion from the decision of the two issues and the above‑mentioned agreement of the parties is that the prayer for declaration that the amount claimed by the defendant is not due to it is to be left out of consideration, but the prayer for injunction is to lie granted in a modified form. The plaintiff has prayed for perpetual injunction to restrain the defendant from realising the amount or any part of it from the plaintiff, but such an injunction is not in accord with the situation that has arisen by omitting to decide the correctness, validity and legality of the claim of the defendant for interest. The injunction which the plaintiff can get in these circumstances is only to the effect that the defendant will not recover the amount claimed by it as arrears of land revenue under Article 147‑A of the Order without first establishing that the whole amount or any part of it is due from the plaintiff. An injunction is granted accordingly.

12. The plaintiff will get the costs of this suit excluding the amount of court‑fees paid on the plaint because by agreement of counsel for the parties issue No. 4 has been left out of consideration and only in respect of that the payment of the present court‑fees was necessary. K. B. A. Suit partly decreed.