P L D 1977 Karachi 1025 (PLP)

Briefly stated this revision application has arisen out of the following facts : The applicant filed a suit for declaration and Injunction, being Suit No. 199 of 1974, in the Court of Senior Civil Judge, Nawabshah, against the respondents named herein. For the fake of convenience I will, hereafter, refer to the applicant ‑as plaintiff and the respondents as defendants, and Suit No 199 of 1974 as the said suit. The plaintiff was awarded a contract for collection of octroi tax, within the territorial limits of Peoples Town Committee, Moro for the year 1973‑74 ending on 30th June 1974. He was to pay a sum of Rs. 3,10,000 to the Peoples Town Committee, Moro towards the said contract, terms and conditions whereof were incorporated in an agreement executed by the plaintiff. It was averred in the plaint. that during the subsistence of contract unprecedented floods hit the country and Moro Taluka (Tehsil) was one of the most adversely affected areas. Due to this calamity the recovery of octroi, tax dwindled with the result that upon a representation made by the plaintiff to respondent 3 for remission of the contract amount, he granted remission to the plaintiff to the extent of two monthly instalments of the contract amount which worked out at Rs. 51,

732. Such n order was passed by respondent No. 3 on 16‑10‑

73. On 8‑2‑1974 the Secretary to the Government of Sind in Local Government Department issued letter in the nature of a circular addressed to various officials of government and Local Councils containing instructions relating to the grant of remission in future which Inter alia provided that no remission in future would be allowed without express orders to that effect from the Government and that orders in this regard if already issued by the Deputy Commissioners; Administrators of District Councils/or the Controlling Authorities of Municipal Committees Town Committees or Administrator thereof were withdrawn and the amount of remission already granted was to be recovered within one month. Even the implimentation of those orders received from the Minister for Housing and Town Planning and Local Government were to be held in abeyance till confirmation thereof was received from the Housing Town Planning and Local Government Department after resubmission to the Minister. These directives were to be implimented with utmost strictness. The plaintiff then received a notice dated 21‑11‑1974 from respondent No. 1 calling upon him to deposit amount in question as the respondent No. 2 Secretary Local Government of Sind Karachi had withdrawn the remission granted to him earlier. The plaintiff therefore, filed the said suit wherein he prayed for a declaration that the defendants had no authority to recover from him octroi tax amounting to Re. 51,732 and for Injunction restraining the defendants from effecting recovery of the said amount. The plaintiff also filed an application under Order XXXIX, rules I and 2, C. P. C.. for issuing interim injunction restraining the defendants 1 and 3 from effecting the recovery of the said amount or any part thereof from him till decision of the suit. The learned Senior Civil Judge after hearing the Counsel for the `plaintiff and defendant No. I allowed this application and granted interim injunction as prayed by the plaintiff. Being aggrieved with this order the defendant 1 filed a Miscellaneous Civil Appeal in District Court Nawabsbah. It was finally heard by the learned 1st Additional District Judge. Nawabshah who set aside the order passed by the learned Senior Civil Judge and allowed the appeal filed by defendant

1. It is in these circumstances that the plaintiff has filed the present revision application against the order passed against him in Miscellaneous Civil Appeal. I have heard Messrs Nooruddin N. Ramzan and G. M. Qureshi the learned counsel for tire parties, I have perused the orders passed by the two Courts below. Whereas the order dated 16‑12‑1974 passed by the learned Senior Civil Judge does not even show whether all the three important preconditions namely (l) prima facie or arguable case to be made out by the plantiff (ii) balance of convenience in favour of plaintiff (ill) an irreparable injury to the plaintiff were satisfied before the pissing of the said order, the order dated 24‑11?1975 passed in appeal by the learned let Additional District Judge is quite comprehensive and deals with all the material aspects of the case. It does not call for interference. The learned counsel for the petitioner then contended that the remission was granted to the plaintiff under West Pakistan National Calamities (Prevention and Relief) Act, 1908 (Act XXXIII of 1958). He however failed to show me any notification whereby Moro was declared a calamity affected area after being affected by flood as required under section 3 of the said Act. While issuing such a notification the government by notification also appoints a Relief Commissioner for a calamity affected area. Mr. Nooruddin N. Ramzan has not shown me any notification appointing Deputy Commissioner Nawabshah as Relief Commissioner for Moro. It therefore, can not be said that the Deputy Commissioner Nawabshah acted as Relief Commissioner under the provisions of the said Act and/or that Moro was notified as calamity affected area‑. Nothing bas been shown that the Commissioner, Nawabshah remitted the two monthly instalments payable by the plaintiff as Relief Commissioner after approval of the government t as required under section 4(2) (,g) of the said Act It appears prima facie I must say that the orders of remission of two monthly instalments amounting to Rs. 31,732 earlier granted to the plaintiff on account of goods which hit Moro Taluka were not confirmed by the Local Government Department of the Government of Sind in pursuance of circular letter dated 6‑3‑1974 issued by the Secretary, Local Government Department, Government of Sind. However, this controversy is to be finally adjudicated upon by trial court where the suit filed by the plaintiff is pending. It would indeed be too early to express any opinion as to the merits of the claim put forward by the respective parties as it is likely to prejudice the case of either party. For the forgoing reasons I find that the‑ appellate Court does not appear to have acted in the exercise its jurisdiction illegally or with material irregularity . I, therefore, dismiss this revision application with costs. S. A. H. ????????????????????????????????????????????????????????????????????????????????? Petition dismissed.