1995 PLP 292 (MLD)

(4) Whether the plaint does not disclose a cause of action? (5) Relief. After considering the evidence of both the parties, the learned trial Court through judgment and decree dated 11‑7‑1985, decreed the suit. All the issues were decided in favour of the plaintiff. The appeal filed by the petitioner against the said judgment and decree has been dismissed by the learned Additional District Judge, Sialkot through impugned judgment dated 16‑2‑1986.

4. The main burden of argument presented on behalf of the petitioner by its learned counsel Mr. Abid Hassan Minto, was that the plaintiff when examined himself as P.W. 1 clearly admitted that no notice was issued to the petitioner before filing the suit, therefore, the finding of the two Courts below that issuance of such a notice was established was based on misreading of the record. In the alternative, he laid a great deal of stress on his submission that Exh. P 6 which has been held to be a notice under section 273 of Cantonments Act does not satisfy the mandatory requirements of the said section, therefore, could not have been construed to be a notice under the said section. Relying upon various reported judgments it was stressed that without notice under section 273 of the Cantonments Act, the suit was not maintainable.

5. In order to appreciate the contention raised by learned counsel for the petitioner, I closely scrutinized the evidence of both the parties both oral and documentary. There is no cavil with the legal proposition as canvassed by the learned counsel for the petitioner that without fulfilling the requirements of section 273 of the Cantonments Act in that without issuance of a notice required by the said section the suit could not be maintained. The question for determination in this case is whether there is evidence on the record to establish that any such notice was in fact issued by the respondent. The respondent when examined himself as his own witness as P. W. 1 stated that he issued a notice to the petitioner on 2‑2‑1973. It was not responded to. He further stated that he then sent a letter through registered A.D. and postal receipts for sending its letter through post were produced as Exh. P 2 to Exh:P5 and copy of the notice as Exh.P

6. In cross‑examination he stated that the suit was filed by him in March, 1973 whereas it is evident from the plaint that it was in fact filed on 13‑6‑1973 in the Court of Senior Civil Judge. When questioned he stated that he did not issue notice before filing the suit. It is from this part of the statement that the learned counsel wanted the Court to hold that non‑service of notice under section 273. of the Cantonments Act was admitted by the plaintiff. I am afraid, it is difficult to accept this argument. It is manifest that the question put to respondent was general in term and he was not asked specifically that notice as required under section 273 of the said Act was not issued that he might be in a position to explain the position. As has been noticed the impugned action was taken in 15‑3‑1973 whereas the suit was filed about three months thereafter therefore the respondent could misunderstand as if he was being asked whether any notice was issued to the petitioner immediately before filing the suit. Notice itself has been produced in evidence as Exh. P

6. It is evident from this document, that it was addressed to Executive Officer Cantonment Board and that copies of the same were also sent to Director, Military Land Cantonment Board, (2) Deputy Director, Military Land Cantonment Board, Lahore, (3) The Station Commander, Sialkot Cantt. The postal receipts for sending this notice to all the four addressees were produced as Exhs. P 2 to P.5 from which it is apparent that the same was posted on 26‑3‑1973. The petitioner examined Muhammad Bashir, Revenue Superintendent, Cantonment Board, Sialkot as D.W.1. There is nothing in his statement disputing the statement of P.W. 1 regarding the issuance of notice Exh. P 6 through registered post. After considering the evidence, it can safely be held that the issuance and receipt of notice Exh. P 6 was not seriously contested and disputed and the findings of the two Courts below that the said notice was issued by the respondent as such do not suffer from any legal infirmity.

6. The question whether notice Exh. P 6 satisfied the requirements of section 273 of the Cantonments Act the decision thereof centres around the true construction of the contents of this notice in comparison with the provisions of section 273 of the Cantonments Act. The requirements under section 273 can be summarised as under:‑‑‑ Section 273. (a). The notice should explicitly state the cause of action‑‑‑ (b) the nature of relief sought, (c) the amount of compensation claimed, and (d) the name and place of abode of the intending plaintiff. It also requires that the plaint must contain a statement that such a notice was delivered or left. The notice Exh. P. 6 contains the following statement of facts:‑‑‑ (a) That the sender i.e. the plaintiff obtained on lease three commercial plots bearing numbers 14, 15 and 17 at Sialkot Cantt. for Rs.1,04,000 through public auction the date of which has also been given; (b) that he paid 10% of the total auction price on the spot and signed all the necessary documents regarding the completion of the said transaction; (c) that on 10‑3‑1973 he received a letter from Cantonment Board to attend the office on 12‑3‑1973; (d) that on the said date he visited the office of the Board and was informed that the documents were not ready and he should come again when required and informed by the office; (e) that up to the date of the said notice he had not received any information to this effect which caused immense anxiety and worry; (f) in the end it was requested by him that he should be immediately informed as to the visit date in the office with further request for handing over the possession of the said Commercial building site otherwise he shall be constrained to take legal action in the Court of law. Under the signatures of the plaintiff full description of the plaintiff with place of abode has been given as "Al‑Haj Mian Abdul Majid Chughtai, Ijaz Mansion, Church Road, Sialkot City". This was addressed to the Executive Officer, Cantonment Board, Sialkot Cantt. He also stated about these facts in his statement as P.W.1. In rebuttal D.W.1 as rightly observed by the learned lower appellate Court, did not state anything about his allegation that he visited the office of the Board on 12‑3‑1973 and asked to visit again as the papers were not complete, therefore, the statement of plaintiff as P.W.1 went un-rebutted and shall be deemed to have been accepted as correct.

7. It is the case of the petitioner that the respondent /plaintiff allegedly failed to sign memorandum due to which the impugned resolution dated 15‑3‑1973 for rejection of his bids was passed. The dispute between the parties is with regard to non‑signing of this agreement and as to which. of the parties is responsible for this. The cause of action actually relates to this dispute of signing and non‑signing of the agreement itself and the impugned resolution dated 15‑3‑1973 is merely a consequence of that. The contents of the notice as reproduced above clearly mentioned that the petitioner was informed by the plaintiff that he had purchased the said plots the particulars of which were clearly given. The petitioner was also informed, that he had visited the office and was asked to revisit again as the papers were not complete but no intimation thereafter was received by him which had caused immense anxiety and worry meaning thereby that he was ready and willing to do the needful and it was the petitioner who was responsible for his failure to sign the memorandum of agreement. In the end he clearly stated that in case his grievance is not redressed; he would approach the Court of law. The name of the plaintiff was specifically written under his signatures with his place of abode. This notice fully satisfied the requirement of section 273 as such the argument that no notice was served as required under section 273 is devoid of any legal force. Though no date has been mentioned on this notice but the plaintiff has produced postal receipts Exhs. P2 and P5 from where it is manifest that the same was posted on 26‑3‑1973. The mention of this notice dated 26‑3‑1973 has been clearly made in para. 3 of the plaint therefore further requirement of section 273 of the Cantonments Act, 1924 that there should be statement in the plaint itself about the issuance of notice was also fulfilled.

8. Even if it is assumed that the statement of plaintiff as P.W.1 is construed to be an admission of non‑issuance of notice, it is possible to conclude that the said admission was erroneously made and was proved to be incorrect. The rule is firmly settled that admission is not conclusive proof of fact and an admission could be proved to be erroneous or is otherwise not correct. Viewing, also from this angle, no benefit can ,be derived by the petitioner from the said so‑called admission of the petitioner.

9. Learned counsel for the petitioner with reference to original record submitted that the said memorandum of agreement was ready even on the date the plots were auctioned when the respondent signed the bid‑sheets but did not sign the said memorandum which was sufficient to establish that he never intended to comply with the condition of signing the said memorandum. This argument carries the germs of its own defeat inasmuch as if the said memorandum was ready, there is no explanation in whole of the record as to why while getting the auction bid‑sheets signed by the respondent the said memorandum was also not got signed. The concurrent findings of facts recorded by the two Courts below, have not been shown to be wrong or based on misconstruction or misreading of evidence or non‑consideration of material evidence on record. The allegations to the petitioner as has been discussed above, were not successfully proved to be wrong, rather they were not specifically disputed in the evidence by D.W.1.

10. For the foregoing reasons, the two Courts below have not committed any material irregularity and illegality in exercise of their jurisdiction in passing the impugned judgments and decrees calling for interference under section 115, C.P.C. by this Court. The revision petition thus fails which is hereby dismissed with costs. M.BA./C‑47/L Revision dismissed.