1989 PLP 2110 (CLC)

his is an appeal by the defendant, the Province of Sind and two others, in a suit for declaration and permanent injunction. The plaintiff's case is that in 1965 he purchased from the defendants G.W.Cuts 1965‑66 (Lot No.7) Murid Rais Forest. The contract was executed at Hyderabad. The plaintiff had paid to defendants all the money. The fuel Wood of plaintiff worth one and half lac of rupees was lying in the said forest. It is the further case of the plaintiff that in August 1967, without notice to the plaintiff, defendant No.2 ordered above goods of plaintiff to be seized and put to auction. Accordingly the defendant No.3 seized plaintiff's above said firewood. The defendants have not yet auctioned the said firewood. Due to the negligence of defendants, the said fuel wood caught fire and the wood worth Rs.75,000 were destroyed by fire., It is the further case of the plaintiff that he informed defendants to place chowkidar over the firewood but the defendants refused to do so. In spite of above seizure defendants were demanding unspecified sums from the plaintiff. In these circumstances the plaintiff sought a declaration that he was not liable to pay any amount to defendants. In any case plaintiff's wood worth Rs.1,50,000 were with the defendants. The plaintiff also sought permanent injunction restraining the defendants from effecting the recovery of the alleged sums of money. The defendants resisted the suit. The main defence of the defendants was that on account of the failure of the plaintiff to pay the instalments specified in the agreement, the plaintiff was not entitled to any relief. The value of the contract was Rs.1,41,

000. The plaintiff had to pay Rs.71,650 on account of instalment, Rs.43,7C,0.80 as penalties and Rs.635 for the erection of brush wood hedge. On the pleadings of the parties, the trial Court framed the following issues which were recasted which are as follows: (1) Whether the suit is barred by law? (2) Whether the plain is insufficiently stamped? (3) Whether the claim of the defendant be recovered as arrears of land revenue? (4) Whether the defendants' claim been fixed, determine as established? (5) Whether the plaintiff has any cause of action? (6) What should the decree be? On issue No.l the trial Court came to the conclusion that the suit was maintainable. Issue No.2 was decided in negative. On Issue No.3 it was held that the dues were not recoverable as arrears of land revenue. On issue No.4 the trial Court came to the conclusion that the amount was not determined under the Forest Act. On issue No.5 the trial Court came to the conclusion that the plaintiff had cause of action. The trial Court held that the amount could not be recovered till it was established and determined by a competent Court of law. The defendants were restrained from effecting the recovery of notice dated 15‑3‑1967 till the amount claimed under the said notice was to be determined and established. Thus the suit was decreed with costs by the trial Court. The defendants being aggrieved against the judgment and decree have filed the present appeal. Mr. Riaz Ahmed, learned counsel for the respondent raised a preliminary objection that the appeal is barred by time. The judgment was passed on 20‑9‑1978. Application for copies was made on 28‑9‑1978. The decree was passed on 4‑10‑1978. Stamps were supplied on 17‑10‑1978. Copy was prepared on 17‑10‑1978. Copy was delivered on 17‑10‑1978. Appeal was presented on 18‑1‑1979. There is a delay of two days. Mr. Riaz Ahmed contended that each day's delay should be explained. Learned counsel for the respondent referred to the decisions of Supreme Court reported as 1988 SCMR 304, 1987 SCMR 1819, 1984 SCMR 1508, 1983 SCMR 1188 and of this Court reported in PLD 1984 Karachi 191 for the proposition that each day's delay should be properly explained. Mr. K.M. Nadeem explained that the suit was decreed on 20‑9‑1978, the appellants applied for certified copies of the judgment and decree on 28‑9‑1978 and the copies were delivered on 17‑10‑1978. The appellants made necessary arrangements of funds for filing appeal. It cannot be said that the appellants acted mala fide or that their conduct was contumacious or that they acted without due care and caution. In my view the appellants have properly explained the delay in the present case and although it may be said that the appellants could have acted with the greater diligence and could have filed the appeal at the earliest on 16‑1 1979. It cannot be held that there was any inaction or want of bona fides or lack of due care or attention on the part of the appellants. 1 am inclined in the present case to exercise the discretion to condone the delay under Section 5 of the Limitation Act in favour of the appellants because no negligence or inaction or want of bona fides is imputable to the appellants. A slow movement on the part of the appellants cannot lead to an inference of want of bona fides or inaction or negligence. In the result I condone the delay. The appeal is held to be within) time. As I have already condoned the delay, as such the decision reported in 1988 SCMR 304, 1987 SCMR 92, 1987 SCMR 1819, 1984 SCMR 1508 and 1983 SCMR 1188 are not applicable to the facts of the present case. In order to appreciate the contentions of the learned counsel for the parties, it is necessary to reproduce relevant conditions namely clauses 8, 9, 10 and 22 of the agreement dated 30‑12‑1965 (Ext.36/1) which read as under:‑ That the purchaser shall pay the sum of Rs. one lac forty‑one thousand only in the following instalments namely:‑ (i) Rs.35,250 on or before 15th day of April, 1966, (ii) Rs.35,250 on or before 15th day of Nov. 1966, (iii) Rs.35,250 on or before the 15th day of March, 1967, (iv) Rs.35,250 on or before the 31st day of May, 1967. or before the removal of timber from forest limits whichever falls earlier. That the said sums shall be paid into a Government Treasury lying within the jurisdiction of the Forest Officer as Forest Revenue of the Hyderabad Forest Division and the Treasury Officer's acknowledgement sent at once after each payment to the Forest Officer. The security money hereinafter mentioned shall not be taken into account in calculating the amount of the purchase money paid. 9.(a) That the purchaser shall not remove from the forest the timber obtained from the trees referred to in clause 2 of this indenture until he has paid the purchase money full nor during such time as any forfeit or liability incurred by him under provisions of this indenture may be unpaid or unsatisfied nor until h.. has obtained a Removal Permit and/or Transit Pass to the effect issued under Section 41 of the Forest Act, 1927 from the Forest Officer on payment of usual fees. (b) In the event of the purchaser wishing to remove a portion of the timber obtained from the trees referred to in clause 2 before final payment has been made he shall be at liberty to do so, provided the Forest Officer is satisfied that the instalments already paid are sufficient to cover the price of the trees from which the timber to be removed has been obtained and further provided that the trees and timber still left unremoved in the forest are sufficient to cover the dues still payable by the purchaser and that the purchaser's work on felling and conversion of the remaining trees is proceeding in an earnest manner. (c) In case there is danger of flood, the purchaser may be allowed at the sole discretion of the Forest Officer to remove the unpaid for timber outside the Flood Hazard Zone to be stored in a sanctioned depot inside a Government forest; or when this is not possible, the removal may be allowed to a sanctioned depot outside a Government forest provided that in case the sanctioned depot lies outside a Government forest all such unpaid for timber will be duly pledged to the Forest Officer prior to its removal from the Government forest and the charges for hiring of land for the purpose will be payable by the purchaser. The timber so pledged shall continue to lie in the sanctioned depot outside the forest at the sole risk of the purchaser.

10. That if the purchaser fails to pay instalments of the purchase money or any part thereof on the due date, he shall be liable after the lapse of fifteen days' grace period to pay as penalty one per cent of the sum due for every twenty‑four hours of delay, which payment shall be realizable from the security money hereinafter mentioned, and by seizure and detention of the timber. If such failure extends to sixty days, the trees and timber pertaining to this indenture will be liable to be seized and resold at the risk of the purchaser. On account of resale of the timber the loss, if any, occurred to the Governor, will be recovered from the purchaser as arrears of land revenue." I shall therefore proceed to consider the rights of the parties on an interpretation of Ext.36/1. Clause 8 of the agreement requires the purchaser to pay the entire price of Rs.1,41,000 in four equal instalments on or before 15‑4‑1966, 15‑11‑1966, 15‑3 1967 and 31‑5‑1967 or before removal of timber from forest limits whichever falls earlier. Clause 9 provides that the purchaser shall not remove from the forest the timber obtained from the trees referred to in clause 2 until he has paid the purchase money in full nor during such time as any forfeiture or liability incurred by him under the provisions of this indenture may be unpaid or unsatisfied until he has obtained a removal permit and/or transit pass. The most important clause for the purpose of the present appeal is clause 10, the material portion of which provides that if the purchaser fails to pay instalments of the purchase money or any part thereof on the due date, he shall be liable after. the lapse of fifteen days grace period to pay a penalty one per cent. of the sum due for every .twenty‑four hours of delay, which payment shall be realizable from the security money and by seizure and detention of timber and if such failure extends to sixty days, the trees and timber pertaining to this indenture will be liable to be seized and resold at the risk of the purchaser and on account of resale of the timber the loss, if any, occurred to the Governor, will be recovered from the purchaser as arrears of land revenue. Under Clause 11 (a) a sum of Rs.10,000 was to be paid by the purchaser in advance and retained by Government as security for due fulfillment by the purchaser of all the covenants of the indenture. The Forest Officer was empowered to deduct from such security any sum which may be due from the purchaser whether in respect of instalments of purchase money or other sums payable by him or of any forfeiture or compensation incurred by him under the terms of the indenture. If not confiscated under the provisions of the indenture, the security money or any such balance thereof as may be left after making the deductions aforementioned, will be returned to the purchaser after the completion of the contract and/or after the Forest Officer shall have satisfied himself that all the terms of the indenture have been duly and faithfully carried out by the purchaser. The sale money was to be paid, as aforesaid, in four instalments by the respondent/plaintiff. The respondent did not pay the instalments as mentioned above. Instead, he paid the first instalment in bits. The total amount of instalments which had been paid by him by 8‑5‑1966 was Rs.35,

250. The respondent did not pay the second instalment as mentioned above. Instead, he paid the second instalment in bits. The total amount of Rs.34,100 towards the second instalment had been paid by him by 28‑12‑1966. On 28‑12‑1906 a sum of Rs.1,150 was due and payable by him on account of deficit of second instalment. After deducting the aforesaid amount of Rs.67,350 from the total sum of Rs.1,41,000 the amount which remained to be paid was Rs.71,

650. The respondent had also to pay Rs.635 on account of erection of brush wood as stipulated in clause 14(d) of the agreement. The respondent had also to pay penalty under clause 10 of the agreement. The total amount of penalty comes to Rs.43,

760. The case of the appellants as set out in their written statement was that the respondent had removed the material in excess of the amount paid by him. From the facts stated above, it would be seen that the total amount which was to be recovered for the non‑payment of instalments, penalty and Rs.635 as per clause 14(d) was Rs.1,16,

045. The appellant served a notice dated 15‑3‑1967 upon the respondent calling upon him to pay Rs.36,

400. The amount of Rs.36,400 consists of Rs.1,150 being the balance of second instalment and Rs.35,250 being the amount of third instalment. The main ground of challenge was that the amount of Rs.36,400 was not i determined and/or established and could not be recovered as arrears of land revenue and that the respondent was entitled to permanent injunction restraining the appellants from recovering the same till its determination by a competent Court. For appreciating the point, it would be relevant to refer to sections 82 and 83 of the Forest Act. Sections 82 and 83 provide that:‑‑ "

82. All money payable to the Government under this Act, or under any rule made under this Act, or on account of the price of any forest produce, or of expenses incurred in the execution of this Act, in respect of such produce, may, if not paid when due, be recovered under the law for the time being in force as if it were an arrear of land‑revenue:" "83.‑‑(1) When any such money is payable for or in respect of any forest produce, the amount thereof shall be deemed to be a first charge on such produce, and such produce may be taken possession of by a Forest Officer until such amount has been paid. (2) If such amount is not paid when due, the Forest‑Officer may sell such produce by public auction, and the proceeds of the sale shall be applied first in discharging such amount. (3) The surplus, if any, if not claimed within two months from the date of sale by the person entitled thereto, shall be forfeited to Government." Before I proceed to consider the point, I may note here that there was only one type of recovery in the present case. In the case of Lot No.7, the forest produce sold to the respondent was not resold, the recovery was of the balance of 2nd instalment amounting to Rs.1,150 and the third instalment amounting to Rs.35,

250. The balance was Rs.36,

400. It is this amount which was being recovered from the respondent under section 82, what is recoverable is "price". "Price" is a sum of money at which an article is sold. It is something which one ordinarily accepts voluntarily in exchange for something else. There is a very important distinction between action for the price and an action for damages. This distinction is of considerable importance. The Provincial Government has under section 83 of the Act power to stop the removal of the goods even though the property in the case has passed to the contractor. It can take possession till the amount is paid and to sell the goods if the same is not paid when due. The Provincial Government has, therefore, under the terms of the contract (Exh.36/1) and by virtue of the statute, even though the property in the goods has passed to the contractor, right to stop removal of the goods and take possession thereof till the amount due is paid and to sell the goods if the amount due is not paid when due. In the instant case it would be seen that after the first instalment and Rs.34,100 of the second instalment, the plaintiff/respondent did not pay the balance of second instalment, i.e. Rs.1,150 and third instalment under the terms of the contract, the same had fallen due. For recovering the instalments, the Province of Sind had two rights. One of the rights has been given to it under section

83. The other is under section

82. These are two provisions provided for different contingencies. One does not overlap the other. There is nothing in these two sections that the Province of Sind cannot resort to section 82 to the charge created under section 83(1) of the Forest Act. It is the first rule of interpretation that the words of a Statute are first understood in their natural, ordinary or popular sense, unless there is something in the context, or in the object of the Statute to suggest the contrary. I am unable to find anything in the context, or in the object of the Statute to suggest contrary interpretation than one placed by me. In the instant case, I have indicated that by the agreement Exh. 36/1, the respondent had agreed to pay Rs.1,41,000 in four instalments of Rs.35,

250. The respondent had paid first instalment in bits. The respondent had also paid Rs.34,100 in bits and the third instalment had not been paid on the due date. It can hardly be held that what the appellants were claiming in the notice was unascertained sum or the amount was not determined. The claim could not but be for the price of forest‑produce or woods was `agreed to be paid in four instalments as had been agreed upon by the respondent. Therefore, there is no doubt that the arrears of unpaid money could be claimed through the impugned notice. If that be the conclusion, then the notice and/or the amount cannot be held to be undetermined which ought to be restrained. The result, therefore is that the notice of demand of the appellants claiming unpaid money from the respondent was right. For all these reasons, I have reached the conclusion that the declaration D sought and the permanent injunction sought by the respondent in the present case were not maintainable in law. In view of the above, the judgment reported in PLD 1975 Kar. 1008 is not applicable to the facts of the present case. The result is that this appeal is allowed, the judgment and decree of the learned Senior Civil Judge are set aside and the plaintiffs suit is dismissed. In the circumstances of the case, the parties are left to bear their own costs. A.A./P‑111/K Appeal accepted.