P L D 1983 Quetta 1 (PLP)

MUFTAKHIR-UD-DIN, J.-R. F. A. 5 of 1977 filed by the Collector, Quetta is directed against the order dated 4-2-1977 passed by the District Judge, Quetta in Land Acquisition Case No. 6 of 1975 on reference made by the Collector, Quetta under section 18 of the Land Acquisition Act. By this order the District Judge, Quetta has awarded compensation at the rate of Rs. 25,000 for the land acquired by, the Government of Baluchistan for Baluchistan Constabulary. R. F. A. 12 of 1977 is also directed against the same order passed by the District Judge, Quetta filed by Sardar Muhammad Qasim and others claiming compensation at higher rate. Both these appeals are disposed of by this judgment as common points of law and facts are involved in these appeals.

2. The facts so far as they are material at this stage of the case are these that the land belonging to Sardar Muhammad Qasim son of Muhammad Ismail, (2) Ghulam Nabi son of Haji Sufi Zareen, (3) Syed Ahmad Noor son of Syed Abdul Samad and (4) Zarif Khan son of Baseen Khan situate in Mahal Saifullah Mauza Mallazai, Halqa Khucblak, Tehsil Quetta measuring 128.3.38 acres was acquired for the Baluchistan Constabulary, and as per assertion made by the Collector the land-owners had agreed to the sum of Rs. 14,500 per acre. Accordingly the Collector vide his order dated 28-5-1975 fixed the compensation at the rate of Rs. 14,500 per acre for the land acquired. Later the land-owners on 18-8-1975 preferred an application and asked for a reference under section 18 of the Land Acquisition Act, 1894 and claimed compensation at the higher rate than that awarded by the Collector, Quetta. The Collector while forwarding the application to the District Judge, Quetta also furnished the particular as required under section 19 of the Act and stated that "The Tehsildar, Quetta and the representative of the Baluchistan Constabulary, Quetta conducted negotiation with the Zamindars on the spot. The Zamindars/owners of the land were heard in person and they bad given in writing that Rs. 14,500 per acre only for lands were fully acceptable to them and further they will not go in appeal etc. After hearing them an award was passed and they raised no objection. The compensation of lands and tube-well etc. were paid to them on 3-7-1975 which they received happily. If there were some objections. they should had raised objections before the receipt of the amount of compensation". The learned District Judge proceeding ex parte against the Collector framed the following issues :- (1) What should be the adequate compensation payable to the applicant objectors for the land acquired. (2) Relief. . . One of the, respondents namely Haji Zarif Khan filed an affidavit and the learned District Judge considering the evidence recorded in other cases to which reference would be 'made at later stage in this judgment determined the compensation at Rs. 25,000 per acre, for the land acquired vide his order dated 4-2-1977. Against this order the Collector, Quetta Sub-Division has filed the appeal (RFA 5 of 1977), the land-owners have also preferred appeal (R. F. A. 12 of 1977), and have claimed compensation at the rate of Rs. 50,000 per acre and also 15 % compulsory Acquisition allowance on the amount awarded in addition to the costs throughout.

3. Before dealing with the contentions raised in the appeals we would consider a preliminary objection raised by Mr. Basharatullah, Advocate appearing for the land-owners. The learned counsel has submitted that proper Court fee has not been paid on the appeal filed by the Collector as according to him the ad valorem Court fee on the total amount awarded by the District Judge should have been paid. While the Court fee on the difference of the amount between the amount awarded by the District Judge and the amount determined by the Collector has been paid by the Collector in R. F. A. 5 of 1977. Section 54 of the Land Acquisition Act confers a right of appeal to an aggrieved party to the High Court from an award or part of an award passed by the Court and the relevant provision in the Court Fees Act applicable is section 8 which lays down that :- "

8. Fee on the memorandum of appeal against order relating to compensation. The amount of fee payable under this Act on a memorandum of appeal against an order relating to compensation under any Act for the time being in force for the acquisition of land for public purpose shall be computed according to difference between the amount awarded and the amount claimed by the appellant." When the person whose land is being acquired is the appellant there is no difficulty in applying the provision of this section. But when the appeal is filed by the State difficulties arise. The State is not a claimant and it is impossible therefore to compute the Court-fee according to the difference between the amount awarded and the amount claimed by the appellant without a straining of the meanings of the words. But according to the first part of the section its provisions apply to all appeals in such cases whoever may have filed the appeal. That being the case it does not seem to us unreasonable to hold that in the case of an appeal by the State "the amount claimed by the) appellant's means the amount the appellant claims should have been awarded. If the section does apply to the case of an appeal by the State this is the only possible interpretation. This section of the Court Fees Act clearly purports to apply to all appeals against an order relating to compensation whoever the appellant may be. Almost similar arguments were advanced before a Division Bench of the Rangoon High Court in case reported in A I R 1928 Rangoon 197 and it was held that proceedings before the Court on a reference by the Collector under the provisions of section 19 of the Land Acquisition Act cannot be described as a suit to set aside an award within the meaning of the provisions of Article 17 (4), Schedule 2, Court Fees Act and the Article applicable is Article 1, Schedule I. and the Court fees are payable in the appeals ad valorem on the difference between the sum awarded by the Court and the sum which the appellant clams should have been awarded. This view met with approval in A I R 1939 All.

127. In P L D 1963 Azad J & K

10. It was held that provisions of section 8 of Court Fees Act, 1870 overrides general provisions of Schedule 11, Article 17 of the Act and Court fee payable on memorandum of appeal to be ad valorem according to difference between the amount awarded and that claimed by the appellant. The words "orders for compensation under any act" In section 8 of the Court Fees Act cover all cases of the order and is applicable in case of appeal before the High Court. We therefore have no hesitation in holding that the memorandum of appeal from an order relating to compensation under any act shall be computed according to the difference between the amount awarded by the District Judge and the amount which the Collector claims should have been awarded, and the amount of Court-fee payable on such a memorandum is to be ad valorem and is to be assessed on the difference between the two amounts and since the Court-fee on that basis is paid it is proper. The objection raised by Mr. Basharatullah is accordingly overruled.

4. The learned Advocate-General has submitted that the proceedings conducted by the learned District Judge in this case. has practically denied the appellant (Collector) the right of defence and thus there was such a violation of statutory provisions of law and principles of natural justice that has rendered the proceedings coram non judice. From the perusal of the information furnished by the Collector under section 19 of the Land Acquisition Act is found that it contained an objection against the maintainability of the very reference claimed by the land-owners, because it was being asserted that the land owners had not only accepted the compensation at the rate of Rs. 14,500 per acre at the time of mutation but had also given an undertaking in writing that they would have go to appeal. This objection, if proved would have gone to the root of the case and the application under section 18 of the- Act was not competent in view of the proviso contained in section 31 (2) of the Act. Strangely enough the learned District Judge, Quetta did not put this objection in issue which was very material. The learned counsel for the landowners has taken the position that since the proceedings were ordered ex parte against the Collector this would not have mattered much but we have not been able to subscribe to that view. Whatever might be. The reasons for the non-appearance of the Government pleader but certainly by that time the learned District Judge had not framed the issues and the points on which the parties were at variance had to be considered as they arose from the pleadings, i. e. the application of the land-owners and the particulars furnished by the Collector under section 19 of the Land Acquisition Act. There can be no doubt of the duty of the Court to ensure even when proceedings ex parte that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party. P L D 1963 S C 663 may be referred. We are therefore constrained to hold that the learned District Judge has not proceeded in accordance with the rules governing the safe dispensation of justice from the very start of the case and was in error in thinking that a formal written statement was required to be filed on behalf of the Collector, because proceedings before the Court on a reference by Collector under the provisions of section 19 of the Land Acquisition Act cannot be described as a suit. Section 18 of Land Acquisition Act lays down that any person who has not accepted the award of the Collector may be written application to the Collector require that the matter be referred by the Collector for determination of the Court and thereupon the Collector is bound to make the required reference. The proceedings are thus initiated on reference by the Collector, and are not initiated by a plaint and are not in the strict sense of the word a suit at all.

5. From the perusal of the record it is found that on 25-10-1975 the Government pleader did not put in appearance and an order was recorded that proceedings were to that place ex parte but later on 5-11-1975 an application for setting aside the order was made. This application was to be considered on 27-11-1975 but on that date the presiding officer was on leave? and the next date of hearing was fixed for 10-12-1975, this was done by the reader of the Court when due to the non-appearance of the Government Pleader the application under Order IX, rule 7, C. P. C. was dismissed and thereafter the issues were framed on 11-12-1975. The proceedings of the Court continued arid the order sheets mentioned that witnesses were also examined but the persons whose evidence was recorded and considered for the respondents/land-owners had neither been summoned in Reference Case No. 6 of 1975 by the land-owners nor any list of witnesses is found on record. The learned counsel appearing for the land-owners has also not claimed before us that they had cited them as witnesses. The statement of those witnesses cannot be treated as legal evidence in the case. The learned District Judge, Quetta directed the land-owners to file their affidavit and in compliance thereof only one affidavit on behalf of Zarif Khan respondent was filed but when the Government Pleader made an application and sought permission to file a counter-affidavit, this request did not find favour with the learned District Judge and the request was turned down presumably under a mistaken view of the law that since the proceedings were being taken ex parte against the Collector on account of non-appearance of the Government Pleader o 25-10-1975 and those proceedings were not formally set aside, the Collector had no right to contest the proceedings after that order. This procedure adopted and the view taken by the District Judge is patently illegal. It ha been held in A I R 1928 P C 261 (262) that no form and procedure should ever be permitted to exclude the presentation of a litigant's defence. Wallace, J said in A I R 1925 Mad. 1274 that "one cardinal principle to be observed in trials by a Court obviously is that a party has a right to appear and plead his cause on all occasions when that cause comes on for hearing" and that "it follows that a party should not be deprived of that right and in fact the Court has no option to refuse that right unless the Code of Civil Procedure deprives him of it". Let us now examine the Code in order to find out if there is actually any prohibition for the defendant in such circumstances. Order IX, C. P. C. is headed appearance of parties and consequence of non-appearance. The word consequence as opposed to the word "penalty" is significant. So also in rule 12 the marginal note is "consequence of non-attendance" and the body of the rule states that the party who does not appear and cannot show sufficient cause "shall be subject to all the provisions of the foregoing rules applicable to plaintiff's and defendants respectively, who do not appear. The use of the word "penalty is significantly and scrupulously avoided. When the defendant has been served and has been afforded an opportunity of appearance, then if he does not appear, the Court may proceed in his absence, but the Court is not directed to make an ex parte order. Of course the fact that it is proceeding ex parte will b recorded in the minutes of its proceedings but this is merely a statement o fact and is not an order made against the defendant in the sense of an ex part decree or other ex parte order which the Court is authorized to make. All that rule 6 (1) (a) does is to render a bar and no more. It merely authorises the Court to do that .which it could not have done without this authority namely to proceed in the absence of one of the party. Now the first bearing is either for the settlement of issue or final hearing. If it is for the settlement of issues, then the Court cannot pass an ex parte decree on that date because of the proviso to Order XV; rule 3 (1), C. P. C. on the other hand, if it is for final hearing; an ex parte decree can be passed and if it is for passed then Order IX, rule 13, C. P. C. comes into play and before the decree is set aside the Court is required to make an order to set it aside. Now contrast this with rule 7 which does not require the setting aside of what is commonly, though erroneously known as "the ex parte order". No order is contemplated) by the Code and therefore no order to set aside the order is contemplated!,, either. But a decree is a command or order of the Court and so can only' be set aside by another order made and recorded with due formality. Then comes rule 7 which provides that it at an adjourned hearing the defendant appears and shows good cause for his previous non-appearance, he can be heard in answer to the suit, "as if had appeared on the day fixed for hi appearance. This cannot be read to mean that he cannot be allowed t appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared. We now come to the adjourned hearing. That is dealt with in Order XVII, rule 17 (2) applies when one or both the parties do. not appear on the day fixed for the adjourned hearing. In that event, the Court is thrown back to Order IX with the additional power to make such order as it thinks fit. When it goes back to Order IX it finds that it is again empowered to proceed ex parte on the adjourned hearing in the same sense as it did or could have done, if one or the other of the party had not appeared at the first hearing. that is to say, the right to proceed ex parte is a right which accrues from day to day because at each bearing the Court is thrown back to Order IX, rule 6, C. P. C. Therefore if a party does appear on the day to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceeding simply because he did not appear on the first or some other hearing. It is now too late in the day to contend that more absence on a certain date make him ex parse for the rest of the trial and this extreme view is opposed to preponderance of authorities. Some such authorities may be qouted: (1) A I R 1925 Mad 1274, (2) A 1 R 1931 Nag. 122, (3) A I R 1955 S C 425, (4) P L D 1964 Lah. 782 and (5) P L D 1970 Lah.

428. In the instant case the stand taken by the counsel for the land-owners was that unless the so-called ex parte order is set aside the hands of the Court are tied. This is certainly erroneous and the District Judge, by refusing the Collector to file counter-affidavit has failed to exercise the jurisdiction which he should have and the interference is called for because not to allow the counsel for the Collector to put in the counter-affidavit in the circumstances has shut the case and has deprived him of his right of defence. It is duty of the Court to take into consideration all factors, carefully weight them and endeavour should be to avoid snap decisions and to afford litigant a real opporunity of fighting out their case fairly and squarely. These principle having not been followed in the instant case has provided reasons for arguments that the learned District Judge has not proceeded with the rules governing the safe dispensation of justice. We accordingly hold that this violation of they principle of natural justice has rendered the proceedings coram non judice.

6. The learned Advocate-General has also invited our attention to the procedure of recording the evidence in this case. As has been said earlier in the judgment the respondents/land-owners in R. F. A. 5 of 1917 did not file any list of witnesses at all but the learned District Judge, Quetta has said in his order that Sarwar Ali Khan and Mureed Ahmed were examined and whose statements are read as evidence in this case. The learned counsel for Sardar Qasim had not denied this fact and has conceded before us that there is no order for consolidation. We also find from the record that at no stage of this case or during the hearing of the other cases which were before the District Judge there was any request for consolidation of the cases or the Government pleader ever consented to such a procedure. In our view no consolidation could be ordered as the lands in all the cases referred to by the Collector in his order/orders of reference were situated at different places and the nature of the lands too were neither claimed to be similar. It is not disputed that -the statement of witnesses were recorded in other cases and then these statements were copied verbatim in the file of this case without subjecting the witnesses to fresh cross-examination qua the other case. It is also not known as to which is that case wherein the evidence we first recorded. In other words it is not possible to single out the case which was properly heard. S. A. Rehman, J. (as he then was) in Noor Ellahi v. State (P L D 1966 S C 708) has said "the direction that the witnesses should be examined only once and their statements read out as evidence in the other case, is not supportable in law. Kaikaus, J. (as he then was) at page 713 of the report has said "the law is that every criminal proceeding and in fact every civil proceedings is to be decided on the material on record of that proceedings and neither the record of another case nor any finding recorded therein should affect the decision. It the Court takes into consideration the evidence in another case of a finding recorded therein the judgment is vitiated. Respectfully following the law thus laid down by the Supreme Court we hold that the procedure adopted by the learned District Judge was not warranted by law. The impugned Judgment is therefore not sustainable in law because of the patent, illegalities and the violation of the principles of natural justice has rendered the proceedings coram non judice and the District Judge, Quetta has not proceeded in accordance with the rules governing the safe dispensation of justice. Accordingly we set aside the orders dated 4-2-1977 passed by the District Judge, Quetta in reference case No. 6 of 1975 and allow the R. F. A. 5/1977, remand the case for fresh trial in accordance with law giving opportunity to the parties to lead such evidence as they deem proper but leave the parties to bear their own costs. Since we have decided to remit the case it is not necessary to consider the other submissions made by the learned counsel of parties. With these observations R. F. A. 12/ 1977 is also disposed of. S. A. H.?????????? Appeal allowed.