' Dr. Shaukat Hayat respondent/plaintiff filed suit seeking declaration to the effect that notices dated 19-4-1993, 16-5-1993 and letter, dated 9-8-1993 issued by petitioner No,7 was illegal and without lawful authority and the respondent was not liable to pay a sum of Rs,1,38,552 as arrears of Telephone No,48232 (old) and 810232 (New). Permanent injunction restraining the petitioners/defendants to issue any process against the respondent/plaintiff or to recover the said amount was also prayed for. The said suit was resisted by the petitioners/defendants by filing written statement. It was during the pendency of the suit that the petitioners/defendants filed an application under Order 7, rule 11, C.P.C. For rejection of the plaint. The said application was resisted by the respondent/plaintiff by filing written reply. The learned trial Court after hearing the learned counsel for the parties rejected the plaint vide judgment/decree, dated 104-2002. Being not contented with the said judgment and decree, the respondent filed appeal in the Court of learned Additional District Judge, Peshawar. The said appeal was allowed, the impugned order was set aside and the case was remanded back to the learned trial Court with the direction to decide the same after recording evidence of the parties. Being not contented with the judgment and decree passed by the learned Appellate Court, the petitioners have filed the revision petition in hand.
2. Mr. Ali Jamil Qazi, Advocate the learned counsel representing the petitioners argued that the petitioners had in fact initiated recovery proceedings under the Land Revenue Act. Notices under sections 81 and 82 of the said Act were issued which were challenged by the respondent/plaintiff through the suit in hand. The suit filed by respondent was barred under section 91 of the Land Revenue Act because it was condition precedent for the respondent to have deposited the claimed amount and then filed suit. Since the respondent has failed to deposit the claimed amount, therefore, the plaint was liable to be rejected and the learned trial Court had rightly passed the order, but the learned Appellate Court failed to appreciate the same while remanding the case back. Reliance was placed on 1995 CLC 1982.
3. On the other hand Mr. Manzoor Khalil, Advocate entered appearance on behalf of respondent/plaintiff in response to the preadmission notice issued by this Court argued that the Telephone Department had not determined as to what amount the respondent was liable to pay.
His telephone has been disconnected on 18-4-1990 for nonpayment of Rs,43,387 as per document exhibited on record by the official witness (P.W.1) therefore, the claim of Rs,1,38,552 was on the face of it was illegal and bar of section 91 of the Land Revenue Act was not hurdle for filing the suit.
Reliance in this regard was placed on PLD 1962 SC 384, 1993 M LD 1031 and 1984 SCM R 1047. The order passed by the learned Appellate Court, it- was argued, was proper, hence needed no interference.
4. I have heard the learned 'counsel for the parties and perused the record.
5. The argument of the learned counsel for the petitioners that the petitioners had initiated proceedings under the Land Revenue Act, therefore, without depositing the claimed amount of Rs,1,38,552 the respondent/plaintiff's suit was barred under section 91 of Land Revenue Act has no force at all. It is on record that Telephone No,48232 (old) had been installed in the name of Dr. Shaukat Hayat respondent/plaintiff and the same had been disconnected on 18-4-1990 for non- payment of Rs,43,387. The disconnection letter has been placed by the petitioners on the file with their revision petition at page 39. When the said telephone had been disconnected in the year 1990 then the demand of Rs,1,38,552 prima facie was exaggerated. There is nothing available on record that the petitioners Nos.1 to 6 had judiciously determined as to what amount was payable by respondent. There is also nothing available on record to indicate that the petitioners Nos.1 to 6 had ever declared Rs,1,38,552 as arrears of Land Revenue. It is by now settled that unless and until specific amount is determined judiciously as being "due" and is declared as arrears of Land Revenue, coercive measures as provided under the Land Revenue Act cannot be adopted. Since on the face of the record a sum of Rs,1,38,552 has not been declared as due amount and the same could not be deposited by the respondent before filing suit specially when the disconnection order, dated 18-4-1990 shows that the telephone had already been disconnected for non-payment of Rs,43,387 the provisions of section (sic) of the Land Revenue Act do not debar the respondent/ plaintiff to file the suit without deposit. A similar question came up for hearing before the august Supreme Court of Pakistan in Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384 in which it was held that there was elaborate procedure for reconsideration of assessment and the assessee has the right of appeal. The order of the Revenue Officer was also opened to revision. The Land Revenue does not give absolute power to Revenue Officer to fix liability at his sweet-will and when the land revenue was determined after following an elaborate procedure, statement of account certified by a Revenue Officer shall be conclusive proof of the existence of an arrear of Land Revenue, of its amount and of the person who is the defaulter. When such a procedure was adopted, the august Supreme Court of Pakistan held that the action taken by the Deputy Commissioner, Peshawar was not valid. A similar question also came up for hearing before the august Supreme Court of Pakistan in Muhammad Akbar Cheema v. The Province of West Pakistan and another 1984 SCM R 1047 in which it was held:-- ' "It must be remembered that a right construction of the Act can only be attained if its whole scope and object together an analysis of its wording and the circumstances in which it is enacted are taken into consideration. From an examination of the Land Revenue Act, it is apparent that it provides first a procedure for determination of Land Revenue and then comes the machinery for realization of revenue.
' It is, therefore, manifest that before the operation of the machinery section for realization of the arrears, the authority concerned must decide whether there is an arrear due or not."
' The appeal in the above quoted case was accepted, the impugned judgment and decree was set aside and suit was directed to be tried afresh on merits and dispose of expeditiously.
6. Similar question once again came up for hearing before the august Supreme Court of Pakistan in Agricultural Development Bank of Pakistan v. Sanaullah Khan and others PLD 1984 SC 67 wherein it was held:-- ' "Be that as it may it is now well-settled that all provisions of law which authorized any statutory authority to recover any amount as arrears of Land Revenue can be invoked only after determination of the amount of dues as affixed, ascertained and determined sum of money. This principle of law has been laid down by this Court in the case of Abdul Latif v. The Government of West Pakistan and others PLD 1962 SC 384."
' Similar view was taken in Zakaria A Bawany v. City Deputy Collector, Karachi and 2 others PLD 1975 Kar. 1008 (ii) Messrs Grain Systems (Pvt.) Ltd., Karachi v. Agricultural Development Bank of Pakistan, Islamabad 1993 M LD 1031.
7. Since the, amount due has not been judiciously determined by the petitioners and a sum of Rs,1,38,552 have not been declared as arrears of land revenue and because the respondent/ plaintiff has raised dispute with regard to the amount due, bar contained in section 91 of the Land Revenue Act would not be attracted and the respondent/plaintiff was not debarred to file the suit without depositing the claimed amount.
8. Although the learned Appellate Court has accepted the appeal on the other grounds, but keeping in view the above-mentioned legal position I do not feel inclined to interfere with the impugned judgment passed by the learned Appellate Court. Resultantly the revision petition in hand is dismissed in limine.