1980 PLP 1090 (CLC)

MUHAMMAD KBURSHID KHAN, J.-This appeal is from a decision dated the 23rd October, 1972, of the Senior Civil Judge, Hazara, appointed to perform the functions of Court under the fund Acquisition Act, 1894, in Land Acquisition Reference Case No. 8 5/4 of 1971, the appellant being the person whose land has been acquired under the Land Acquisition Act, 1894 (which we shall hereinafter call as the hot) The reference was made under section 18 of the Act at the instance pf the appellant, Wall Ahmad, against the award 9f the collector daft 29th july,1970, thereby the owner was awarded compensation for Bari Abi, Bahir Di Abi and Maira kinds of land at the rate of Rs. 2469 60, 1920. 80 and 1574.80 per kanal, respectively. He put in claim for these types of land at the rate of Rs. 10,000 ; 9,000 and 8,000 per kanal respectively. The respondents resisted the petitioner's claim on the grounds that the petitioner had no cause of action ; that the application was barred by the law of limitation ; that the petitioner was estopped from putting in a claim for enhanced rate of compensation and that the compensation awarded by the Collector represented the market value of the land acquired. On the pleadings of the parties, the following issues were struck :- (1) Whether the petitioner has a cause of action ? (2) Whether the petition is within time ? (3) Whether the petitioner is estopped to bring the present suit (application) ? (4) Whether the award assessed is very low, if so, to what amount the petitioner is entitled ? (5) Relief. The petitioner put in a list of witnesses, out of whom two, namely, Patwari Halqa Sultanpur and Head Clerk of Land Acquisition Collector's Office, were official witnesses while the remaining six were private witnesses. On the 4th of April, 1972, the Reference Judge directed the petitioner to produce evidence on 23rd of May, 1972. The petitioner submitted an application for summoning his two official witnesses through Court. Both these witnesses were summoned for 23rd May, 1972 when they appeared in Court and their evidence was recorded. Since the Head Clerk (P. W. 2) did not bring with him Qabzul Wasool on that date, he was directed to produce the same on the next date of hearing i.e. 27th July, 1972. The petitioner, however, did not bring his non-official witnesses to Court on 23rd of May, 1972 with the result that the Court directed him as well as the respondents to produce their evidence on 27th July, 1972. On the latter date too, the parties did not produce the required evidence while the Head Clerk made a request for allowing him time to produce the Qabzul Wasool on the next date of hearing as, according to him, he had not been able to trace it out. The Court adjourned the case to 23rd of October, 1972, asking the parties to produce their evidence on that date, and the Head Clerk to produce the said document. On the date so fixed, the Head Clerk produced the Qabzul Wasool and made a supplementary statement. The parties, however, did not bring their other evidence on the said date with the result that the Court proceeded under' Order XVII, rule 3 of the Code of Civil Procedure and after recording its findings on issue No. 3 that the petitioner having accepted the amount of compensation without protest was debarred from filing the application for compensation at the enhanced rate, dismissed the reference by its judgment of the same date. This decision is now being complained of before us. The learned counsel for the appellant appearing before us attacked the impugned decision on the grounds, firstly that the provisions of Order XVII, rule 3, Civil Procedure Code, could not be invoked by the Land Acquisition Judge, and secondly that there was no justification for the view that the appellant had accepted the amount of compensation awarded by the Collector without protest. Elaborating the first contention raised by him, the learned counsel for the appellant said that the order for proceedings under Order XVIl, rule

3. Civil Procedure Code, was bad for two reasons. The first was that the Code of Civil Procedure was not applicable to proceedings before the Reference Judge, and the second was that even if the Civil Procedure Code was applicable to such proceedings, the Reference Court was not competent to invoke the provisions contained therein, for the case was never adjourned for evidence on the application of the appellant. These contentions, to our minds, are founded on a misconception. The argument of the learned counsel for the appellant overlooks the provisions of section 53 of the Act which reads :- "

53. Code of Civil Procedure to apply to proceedings before Court. Save in so far as they maybe inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act." The provisions of the Code of Civil Procedure as contained in Order XVII, rule 3, cannot be said to be inconsistent with anything con tained in the Act, and we must say that even the counsel for the appellant was not able to controvert this position when he was referred to the rele vant provision. In this state of affairs, it must, therefore, be held that the provisions of Civil Procedure Code as contained in Order XVII, rule 319 being not inconsistent with the provisions of the Act, are applicable all proceedings before the Court the Act. Coming now to the second contention raised by the learned counsel for the appellant, it may be stated that the contention is obviously based on the assumption that the provisions of Order XVII, rule 3 cannot be invoked by a Court unless the party proceeded against had sought adjournment for producing evidence by an application in writing. Such an assumption cannot have the recognition of law. Rule 3 refers to the cases where a party has been granted time to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the case. There is no doubt that the rule applies only to cases where time has been granted to a party on his own request, but it is nowhere provided that the request must be in writing. Even a verbal request by a party for time to produce evidence and his failure to produce the same for which time has been allowed would undoubtedly bring the case within the purview of rule

3. In the present case, what we gather from a reference to the relevant orders recorded on the order sheet is that the case was adjourned from time to time for producing the evidence at the request of the petitioner and not by the Court of its own motion. The petitioner having failed to produce the evidence without any sufficient cause having been shown by him, the Court was perfectly justified in invoking the provisions of Order XVII, rule

3. Turning now to the submission of the learned counsel for the appel lant that there was- no substance in the plea that the amount had been received by the appellant without a protest, it may at the outset be stated that a look at the statement of Mumtaz Khan, Head Clerk, who was produced by the petitioner as his own witness and was examined as P. W. 2, would clearly show that the petitioner did receive the amount of compensation fixed by the Land Acquisition Collector, without a pro test. This statement is based on the entries in the Qabzul Wasool according to which the petitioner received the amount without recording a notice of protest therein. There is not an iota of evidence to suggest the contrary and we must say that even the petitioner himself has not come forward to refute the allegation of fact so made by the official witness. In the circumstances we have no difficulty in holding that the amount of com pensation was received by the petitioner without a protest. As to the effect of receiving the compensation without a protest, we need do no more than refer to second proviso to section 31(2) of the Act which in very clear words says that no person who has received the amount otherwise than under protest shall be entitled ~ to make any application under section

18. The acceptance of an award under section 18 and the consent referred to in second proviso of section 31(2) con not the same idea and is an inference drawn from the same facts. When section 31 speaks of a receipt without protest as debarring the order for making further claims, the same criterion must apply to the construction of section 18, and when admittedly the owner, the appellant here, received the compensation without protest, we must take it he accepted the award. The decision of the Land Acquisition Judge, was therefore, not improper and the appeal fails and is dismissed with costs. Appeal dismissed.