1989 PLP 4845 (MLD)

(c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.XXXIX, Rr.l & 2‑‑Temporary injunction, grant of‑‑Authority demanded recovery of amount from plaintiff, being balance of land revenue collected by him, but not deposited in treasury‑‑.Plaintiff challenged the demand but despite opportunities given to him failed to establish that demand made against him was factually wrong‑‑Case, held, was not fit where temporary injunction should be granted to plaintiff. Raja Muhammad Ayub Khan for Petitioner. Muhammad Asif Asstt.A.‑G. for Respondents. This revision petition assails the judgment dated 28‑1‑1988 passed by the Addl. District Judge, Sheikhupura, affirming the order of rejection of plaint and dismissal of application for temporary injunction filed by the petitioner on 1‑6‑1988.

2. Briefly stated the facts giving rise to this revision petition are that the petitioner is a Lambardar of village Barkhurdar, Tehsil Nankana Sahib, District Sheikhupura. A demand was made by the respondents for the recovery of an amount of Rs.1,34,204.15 from him, being the balance of land revenue collected by him and not deposited in the treasury. This demand was challenged by the petitioner by filing a civil suit in which it was stated that no amount was due from him and no notice under sections 78, 80 and 81 of the Punjab Land Revenue Act, 1967 was served upon him, nor any proceedings in accordance with law taken and as such the demand of, the' respondents was illegal, unlawful and void. An application for temporary injunction seeking a prohibitory order against the respondents was also filed.

3. During the course of hearing of the suit, an application under Order VII Rule 11, C.P.C. was filed by the respondents which was accepted by the trial Court and the plaint was rejected on the ground that the jurisdiction of the Civil Court was barred by section 91 of the Punjab Land Revenue Act, 1967 as the disputed amount had not been deposited before filing the suit. The appeal against this order was also dismissed.

4. As regards the rejection of the plaint, it is well‑settled that the averments in the plaint are to be taken as correct and the plaint can only be rejected if on the bass of allegations contained therein, the jurisdiction of the Court appears to be barred by any law. In the present case, the petitioner had specifically alleges: that no amount was due from him nor any proceedings for determination in accordance with law were taken. It was also asserted that the petitioner had no?t been given any notice and fogy this reason the demand was void and illegal. On the face of these assertions; prima facie, section 91 of the Punjab Land Revenue Act was not a bar to the maintainability of a suit. It has been authoritatively laid down by the Supreme Court in Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384 and Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCMR 1047 that where proper procedure for determining the amount has not been adopted nor any notice served, the jurisdiction of the Civil Court is not ousted by section 91 of the Act. However, without entering into further details, suffice it to say, that the provisions of Order VII Rule 11 C.P.C. were not attracted. For this reason the rejection of the plaint by the two Courts is not justified.

5. As regards the application for temporary injunction, I had directed the petitioner to appear before the Revenue Authorities and to render accounts with regard to the amount actually recovered. He appeared before the Authorities concerned and after hearing him it was found that he had recovered amounts which have not been accounted for. He is present today. I have asked him and his learned counsel to state as to how much of the disputed amount has actually been received by him. Even his learned counsel tried to persuade him to answer. Unfortunately, the petitioner did not make any positive statement in this behalf but instead avoided the issue by stating that he is an illiterate person and not aware of the amounts he has received. The learned Assistant Advocate‑General has produced before this Court the statements signed by the land‑owners who have stated that they have already paid the land revenue. Certain receipts executed by the petitioner have also been shown to this Court. Unfortunately the petitioner despite opportunities given to him has failed to establish, even prima facie, that the demand being made against him is factually wrong. In these circumstances, I do not see any justification nor is it a fit case where temporary injunction should be granted to the petitioner. Furthermore the question of irreparable loss does not arise as the dispute pertains to an ascertained sum of money. It may be clarified that the observations made in this order arc only meant for disposal of the application for temporary injunction. The trial Court shall decide the suit in accordance with law on its merits.

6. For all these reasons, the revision petition so far as it is directed against the rejection of plaint, is accepted and the impugned orders to‑this extent arc set aside. However, the decision with regard to dismissal of temporary injunction is maintained. No order as to costs. H.B.T./M‑1625/L??????????????????? Order accordingly.