1989 PLP 2886 (MLD)

(6) Whether the defendant No.1 can determine the claim without associating or hearing the plaintiff unilaterally and arbitrarily? (7) Whether the defendant No.1 can recover the dues from the plaintiff without first establishing the claim and by adopting coercive process and by passing the procedure laid down by law? (8) Whether the defendants can compel the plaintiff to purchase the goods left at the time of handing back the possession at the price unilaterally fixed by them? . (9) Whether it was mandatory under the Repealing Ordinance, 1977 to hear the plaintiffs before determining the present value; of the establishment? In case the answer is in the affirmative, is the present value determined by the defendant No.2 is illegal and not enforceable? (10) Whether the plaintiffs failed to contest/dispute the determination of present value of the plaintiffs establishment and/or the claim made by the defendants, before the defendant No.1 and/or the Federal Government, as prescribed, notwithstanding the demand notices and supply of detailed account? If so, what is the effect? (11). What the order of the Court should be?

5. The parties have not led any oral evidence but relied upon the pleadings and the documents brought on record. The learned Single Judge after hearing the parties held that issue No.1 was not pressed, on issue No.2 it was held that the suit was maintainable, issue No.3 was decided in the negative, issue No.4 was also decided in the negative, first part of issue No.5 was decided in the affirmative but as regards the second part of the issue it was observed that the same would be dealt with appropriately alongwith issues Nos.6 and 9, under issues Nos.6 and 9 it was held that respondent No.1 could not have determined the present value of the assets and liabilities of the factory and the difference between the present value and net worth value without notice and without affording the plaintiff an opportunity of hearing, accordingly issue No.6 was decided in the negative, whereas issue No.9 was answered m the affirmative, in consequence thereof the finding on second part of issue No.5 was also recorded in the negative, as regards issue No.7 it was held that the same did not arise. Issue No.8 was held to have been dropped, under issue No.10 it was held that the appellants failed to contest the determined amount and if they were aggrieved they could make a reference to the Federal Government under subsection (6) of Section 3 of the Ordinance. Consequently the suit was dismissed with no order as to costs. The appellants being aggrieved by the above judgment/decree have filed the present appeal.

6. In support of the above appeal Mr. Muhammad Sharif, learned counsel for the appellants has vehemently urged that the learned Single Judge after having held that the amount has not been determined in accordance with law, could not have declined the relief merely on the basis that the appellants had not allegedly sent any reply to the two demand notices sent by the respondent No.1; and that factually the appellants all alone disputed their liability.

7. On the other hand Mr. Irtiza Zaidi, learned counsel for respondent No.1 has contended that the finding of the learned Single Judge on the question that there was no determination of the amount in terms of the provisions of the Ordinance was of no consequence in 'view of his further finding that the appellants had not disputed the amount determined by respondent No.1.

8. Both the learned counsel have referred to the relevant portions of the judgment. In this regard it may be partinent to reproduce hereinbelow the relevant portion of the finding on issue No.4 and issues Nos.6 and 9; Issue No.4: ............. It is also an admitted position that two separate undertakings were obtained by defendant No.1 from the plaintiff which are Annexures "D" and "D-1" to the written statement, at that time. By Annexure "D" the plaintiff undertook to provide a bank guarantee or to pay in cash a sum of Rs.2,25,000 to the defendant No.1 within two days and until such payment was made or bank guarantee was furnished the stores were to lie m trust with the plaintiff at his risk and the ownership of the goods rested with defendant. By the second undertaking the plaintiff undertook to pay all dues in respect of stocks supplied by C T C which may not have been paid for and adjusted, after due verification and demand by defendant No.1. It is alleged in the plaint that by notice dated 29-12-1977, defendant No.1 demanded Rs.2,50,825 which was enhanced to Rs.2,69,448 by notice dated 18-4-1978 and both the demands were purported to be under section 6 of the Ordinance of 1977. None of these notices are, however, filed by the plaintiff alongwith the plaint or produced in evidence. The plaintiff has produced with the plaint as Annexure "A" a letter of defendant No.1 dated 9-7-1978 with which it forwarded to the plaintiff the details of the final accounts (Compensation) worked out by defendant No.1. The plaintiff has not produced in evidence any letter or documents to show that they disputed these details. The letter dated 12-11-1977 Ex. "C" filed by the plaintiff alongwith the plaint which is a reply from Assistant Sub-Martial Law Admn: to the plaintiff's petition dated 30-10-1977 only shows that they had only represented against the incorrect valuation of the stores by defendant No.1 and prayed for extension of time to furnish bank guarantee which was extended upto 1-12-1977. Apart from this document to show that the plaintiff at any time represented against any of the demands of defendant No.1. The plaintiff did not lead any oral evidence to show that they contested or objected to the dues demanded by defendant No.1. I accordingly hold that the plaintiff failed to prove that there existed any dispute between the plaintiff and defendant No.1, with regard to the dues claimed by defendant No.

1. In these circumstances no action was called for by defendant No.1. The issue is accordingly decided in the negative. Issues Nos.6 and 9:................................... The word "determine", therefore, both in its ordinary meaning and also as interpreted by the Courts of law, import some clement of adjudication which could not take place one sided if it is likely to effect the interest of another person. It is true that section 6 of the Ordinance, 1977, makes no provision for giving notice to the previous management or hearing them at the time of determination of "present value" or the difference between the present value and the net worth value but mere absence of such provision in the section of the Ordinance is not sufficient to exclude the application of the principles of audi alteram parterm. It is now well- settled law that the principles of audi alteram parterm arc deemed to be part or every statutes which effects the rights of the Citizen unless its application is excluded by express words or by necessary implication in the statute. If any authority is needed in this regard reference may be made to the case of Abdus Saboor v Karachi University (P L D 1966 S.C. 536). I, therefore, find no difficulty in holding that the defendant No.1 could not determine the present value of the assets and liabilities of the factory and the difference between the present value and net worth value without notice and without affording the plaintiff, an opportunity of hearing. Issue No.6 is accordingly decided in the negative and issue No.9 is answered in the affirmative. As a result of the above findings the last part of issue Nb.5 is decided in the negative."

9. A perusal of the above quoted portions of the judgment indicates that the learned Single Judge under issue No.4 has held that the appellants had not disputed the amount determined by respondent No.1 but at the same time under issues Nos.6 and 9 has recorded finding that in terms of the provisions of the Ordinance there could not have been any determination without notice and without affording to the appellants an opportunity of hearing. We are inclined to hold that merely omission to send a reply to the notices referred to under the above quoted portion of the judgment on issue No.4 does not amount to admission on the part of the appellants as to the correctness of the amount. If the respondent No.1 wanted to recover the determined amount as due,, they were obliged to determine the same in accordance with law which could not been dons as held by the learned Single Judge under the above issues Nos.6 and 9 without a notice to the appellants and without hearing them which was in fact not done. Mr. Muhammad Sharif has referred to the following cases: (1) Abdul Latif v Government of West Pakistan (P L D 1962 SC 384) (ii) Government of West Pakistan v Abdul Majid (P L D 1963 (W.P) Karachi 653) (iii) State Bank of Pakistan v Karachi Development Authority P L D 1967 Karachi 216) (iv) Province of West Pakistan v. Muhammad Ayub Khuhro (P L D 1967 Karachi 673) (v) Zakaria A. Bawany v. City Deputy Collector, Karachi (P L D 1975 Karachi 1008) (iv) Muhammad Akbar Cheema v. Province of West Pakistan (1984 SCMR 1047) and (vii) Agricultural Development Bank of Pakistan v. Sanaullah Khan (1988 PLD SC 67). In all the above cases inter alia it has been held that the provision of law which authorizes any statutory authority to recover any amount as arrears of land revenue can be invoked after determination of the amount of dues as fixed, ascertained and determined sum of money. In the instant case as held by the learned single Judge and by us that there was no determination of the amount by D respondent No.1 in terms of the provisions of the Ordinance. In this view of the matter resort could not have been made to the provisions of the Land Revenue Act for the recovery of the alleged dues as the arrears of land revenue till the time the dues were determined m accordance with law. The appellants could not have invoked section 3 (6) of the Ordinance till such determination of dues.

10. Mr. Irtiza Zaidi, learned counsel for respondent No.1 has referred to the case of Haji Doosa Ltd v. Federal Government of Pakistan (1986 C.L.C. 1193), in which a Division Bench of this Court had declined the writ petition, inter alia, on the ground that the suit was pending. The above case has no relevancy to the instant case.

11. For the foregoing reasons, we maintain the judgment-decree on the point that respondent No.1 has the jurisdiction under the provisions of the Ordinance to determine the amount in question but we set aside the finding of the learned Single Judge to the effect that the appellants were not entitled to any relief as E they had not disputed the amount. We decree the suit to the extent that respondent No.2 shall not effect recovery till the determination of the dues by respondent No.1 in accordance with law. However, there will be no order as to costs. These are the reasons in pursuance of a short order of even date. M.Y.H./H-152/K Suit decreed.