P L D 1987 Quetta 30 (PLP)

The appellant has challenged the judgment and decree dated 28‑6‑1984 passed by the Additional District Judge 11, Quetta whereby the suit filed by the appellant was dismissed. The suit arose in the following circumstances:‑ The Union Committee Sanjavi permitted the plaintiff‑appellant to recover on its behalf the Octroi duty payable with the limits of the Union Committee from the importers of the goods liable to the octroi duty and an agreement was executed on behalf of the Union Committee through its Secretary with the plaintiff and it was stipulated therein that plaintiff would pay a sum of Rs. 65,800 and would be entitled to recover the Octroi duty for the period w.e.f. 1‑7‑1974 to 30‑6‑1975. A sum of Rs. 44,381.67 was only paid and the balance of Rs. 21,418.33 was withheld under a pretext that a larger amount movable by the Government Department could not be realized though the Council authorities had undertaken to render assistance in that behalf. The Union Council first issued a notice on 25‑6‑1975 calling upon the plaintiff to pay the balance amount but having failed to recover the same approach the Collector Loralai who in turn directed the Naib‑Tehsildar to recover the amount as arrears of land revenue. Accordingly the Naib‑Tehsildar Sanjavi issued the "Dastak" and demanded the amount as land revenue vide Notice dated 28‑6‑1975. The appellant to avoid humiliation filed a declaratory suit in the Court of the Senior Civil Judge, Quetta which was later referred to the Addi tional District Judge 11, Quetta and it was prayed that the contractual amount being recovered as arrears of land revenue under the Basic Democracies Order, 1959 be declared ultra vires and a decree for permanent injunction restraining the defendants from recovering the sum of Rs. 21,418.33 from the plaintiff as arrears of land revenue be passed, The suit was contested by the defendants‑respondents and from the pleadings of the parties the following issues were framed :‑ (1) Whether the suit is not maintainable in view of preliminary legal objection `A' of written statement ? (2) Whether the suit is properly valued, if not, what should be the valuation ? (3) Whether the amount of Rs. 21,418,33 are recoverable as land revenue (4) Whether the notices as contemplated under section 59 of the Basic Democracies Order, 1959 were served on the plaintiff, if not to what effect ? (5) Whether the plaintiff' is entitled for the decree claimed ? (6) Relief ? The evidence tendered on behalf of the parties was recorded. The contract agreement was brought on record. The learned Additional District Judge II while deciding the issue No. 1 observed that since the plaintiff was bound to pay the amount, he had not vested right to avoid the recovery. But the issue which was the basis of the suit that the amount was not recoverable as land revenue was decided in favour of the plaintiff, yet curiously enough he dismissed the suit on the basis of his finding on issue No.

1. Against this order and decree passed against the plaintiff‑appellant on 28‑6‑1984 this appeal has been preferred and the appeal has been veriably argued by Mr. Muhammad Akbar Khan on behalf of the appellant and it has been contended by him that since the issue No. 3 has been decided in favour of the plaintiff there was no justification for the dismissal of the suit. I am inclined to agree with him. The money was being claimed as balance of the amount payable under the contract executed by the Union Committee and the plaintiff and the provisions of the Basic Democracies Order, 1959 could not be pressed into service. The right to collect Octroi could be alienated by the Union. Council but this does not necessarily means that the money recover able under the contract executed in this behalf because money recoverable under the Basic Democracies Ordinance. This procedure is definitely a departure from the general law for the recovery of the amount through a normal suit. In similar circumstances a Division Bench of the Lahore High Court in Municipal Committee Delhi v. Hafiz Atta Ullah (A I R 1934 Lah. 699) has held' that the liability for the payment of money arising out of a contract between the parties must be determined and adjudicated upon by a civil Court. This was followed by this Court in P L D 1977 Quetta

77. Certainly the amount being claimed by the Union Council was the amount due under the contract and not an amount due under the Basic Democracy Order, 1959, and the summary procedure pressed into service was not warranted in law with great respect to the learned Additional District Judge it is pointed out that the main question before him in the suit was the method of recovery and not the liability of the plaintiff. The plaintiff might have incurred the liability but the procedure under the ordinary law has to be followed. I, therefore, am of the considered view that once it was decided by the Union Council to alienate its right of recovery of the octroi and entered into a contract with the plaintiff the ordinary law for the breach of the contract has to be resorted to as the liability arises out of the contract, must be determined and adjudicated by the civil Court. The mode of recovery as adopted by the respondents was not justified in law. The learned Additional District Judge II Quetta has, therefore, fallen in error in holding otherwise and the impugned judgment has to be set aside. Accordingly I allow the appeal and decree the suit in the terms prayed c for. The parties shall bear their own costs. A.A. Appeal allowed.