1. MUHAMMAD AFZAL ZULLAH, J.-This petition for leave to appeal arises out of the dismissal of a petition under Article 199 of the Constitution by a learned Division Bench of the High Court of Sind whereby the petitioners' plea against the recovery of certain amount by the respondents as arrears of land revenue was not accepted.
2. The petitioner's firm was successful bidder in the auction regarding collection of toll tax from vehicular traffic on the Super-Highway connecting r Karachi and Hyderabad for the period from 1- 1-1977 to 30th June, 1977, The total amount was Rs. 55,00,000, which was to be paid in 12 instalments of Rs. 4,58,340 each. According to the agreement, in the event of failure to make payment of any instalment, the penalty of 1 % per day of the total amount of the bid was payable for first 10 days and thereafter the security deposit of Rs. 4,00,000, was to be forfeited without notice and the amount due to the Government was recoverable as arrears of land revenue. The agreement had further provided that no remission or reduction of the amount due would be made as a result of any change in the volume of the traffic or in the income of the toll collected by the petitioners due to any cause. The agreement was otherwise to be governed by the West Pakistan Tolls on Roads and Bridges Ordinance, 1962. The petitioners paid only two instalments on 21st December, 1976 and 15th of January, 1977. They made default in payment of the other instalments notwithstanding the fact that they collected the toll tax till 3rd. Of June, 1977.
3. Ultimately the respondents took over the control of the toll posts by virtue of the purported power under the agreement and the law. Thus subject to the petitioners special plea, a reference to which would be presently made, the petitioners would be liable to pay the amount as agreed if not for the whole period, at least till 3rd of June, 1977. In order to avoid the payment, the petitioner raised a special plea as contained in para. 10 of their constitu--tional petition filed in' the High Court. In substance it was the plea of frustration of contract by supervening causes relatable to the 1977 general elections and the aftermath thereof connected with the movement and protest against the results of the election. The petitioners' case is that the vehicular traffic on the Super-Highway in January, 1977, "fell very much short of December, 1976 and the February tariff was only 70% of the January and in March ebbed to a low of 7.8 % and had showed little or no signs of recuperation".
4. The respondents however, did not accept the above-noted assertions of the petitioners as correct and on the contrary as noted in the impugned judgment pleaded; "that the traffic had tremendously increased following the announce--ment of elections and no loss- had been occasioned to the petitioners". The petitioners also raised two more points before the High Court one that the Government without any notice to them took over the possession of toll plazas on 3- 6-1977 and that the determination of the agreement by the Government was in disregard of subsection (1) of section 8 of the Ordinance. With regard to the alleged forcible ouster of the petitioners on 3-6-1977, it is noted in the impugned judgment that "in so far as the present petition is concerned they (petitioners) record their right to- proceed against the Government on this score as they may be advised". On the other question relating to the interpretation of section 8, it was observed as follows: "It is not easily understood how the petitioners can avoid its liability to pay the arrears of instalments due until 15-5-1977 by reference to the above auction. The Government has not in the present case exercised its option to determine the lease before its expiry. Such a determination at best can give the petitioners right to claim compensation but will not make the amount due to the Government any less payable."
5. The learned counsel for the petitioner has raised the contentions; that the power of the Government to realise the amount is dependent upon the same being `due' and that it would not be due unless it is not only an ascertained sum but also recoverable under the law. When questioned as to how, in the circumstances of this case, the amount of the instalments having been mentioned in the agreement, the same remained unascertained. The learned counsel explained that the petitioners were not permitted to operate for 27 days from 3rd of June till the expiry of the stipulated period, i. e. 30th of June, 1977. The amount which the petitioners would be entitled to deduct for this period being unascertained, the main amount due would also, according to the learned counsel, remain unasertained. With regard to the second part of his argument, the learned counsel contended that the plea of frustration by supervening elements beyond the control of the petitioners having been raised, the amount would not be recoverable under the law till the plea -raised by them is adjudicated upon. The learned counsel has relied on Zakaria A.
6. Bawany v. City Deputy Collector, Karachi (PLD 1975 Kar. 1008), as also on the precedent law cited in the said case.
7. The learned Division Bench of the High Court when dealing with the question of the amount "due from the lessee" observed that "undisputed or admitted amount can be recovered as arrears of land revenue for there would be no occasion to have the amount determined or established. 1t must further follow that if the amount claimed is payable its denial will not make it a disputed claim, if the denial is patently false or is not founded in law". After laying down the above proposition the learned Judges recorded several reasons for not accepting the special plea of frustration raised from the petitioners' side. It was noted that the petitioners admittedly continued collecting the toll tax till they were ousted-the learned counsel has added that the ouster was forcible. This would mean that the petitioners would have but for the alleged forcible ouster continued till the last date of the period of lease. This would show that they were not serious about the question of frustration during the lease period; that the petitioners were unable to point out the point of time, the contract became frustrated; that part from other things, the petitioners had failed to show that the contract had become wholly incapable of being performed; that according to the petitioners' own showing the contract remained capable of performance because they went on collecting the toll tax up to the date of alleged forcible ouster; that the petitioners remained silent after the submission of a counter affidavit from the respondents' side wherein it was asserted that the traffic had tremendously increased following the announcement of the elections and further that no loss was occasioned to the petitioners; that the petitioners did not give an account of their collection nor did they deposit the same in Court; that the petitioners delivered five cheques dated 31st January, 1977, 15th of February, 1977, 1st of March, 1977, 15th of March, 1977 and 1st of April, 1977, for Rs: 4,58,340, each towards the payment of the 3rd to 7th instalments due from them-those cheques were, however, not honoured; that the petitioners, as noted by the High Court, "conveniently omitted to make a mention of these cheques in the petition and when conf; opted with it in the center, affidavit, asserted in the rejoinder that these cheques were post-dated and given when the agreement was signed; that the aforenoted plea in the rejoinder was not supported by the contents of the agreement and further the Managing Director of the petitioners took a different plea in that behalf in the proceedings which ensued after the cheques were dishonoured; and lastly the learned Judges held that the plea of the petitioners that the amount claimed by the Government is not due to the Government is only a pretext. Section 8 relied upon by the learned counsel reads as follows: "Government may cancel the lease of the tolls on any bridge or road on the expiration of three months' notice in writing to the lessee of its intention to do so.
(2) When any lease is cancelled under subsection (1), Government shall pay to the lessee such compensation for the unexpired period of the lease as the Collector may award.
(3) Any party dissatisfied with the award of the Collector given under subsection (2), may within 30 days of the date of such award, appeal to the Commissioner, whose decision shall be final."
8. The plain reading of the above-quoted section reveals that subsection, (2) and (3) thereof would come into operation only when the Government cancels the lease on its own. In this case the High Court has found that the Government has not "exercised its option to determine the lease before its expiry". The initial liability of the petitioners to pay the entire contracted, -amount in accordance with the arrangement by way of instalments cannot be denied by the petitioners on any basis whatsoever. The petitioners had started making default in the payment of the instalments. An ascertained amount was due from them. Under the agreement the petitioners were liable, to pay the same and could not refuse payment merely on the pretext that they would claim compensation for the period of 27 days (on account of their own conduct, due to which the Government was constrained to take action) because they were unable to collect the toll tux. We, therefore, do not agree with the learned counsel that in the circumstances of this case the amount payable by the petitioners was not ascertained.
9. The second part of the contention of the learned counsel is on a much weaker footing. The learned Judges of the High Court carefully scrutinised the plea of alleged frustration of contract caused by the so-called supervening elements, and rejected the same with sound reasons. We find that the approach of the High Court in this behalf is unexceptionable. The petitioners had raised factual pleas in the High Court and cannot now disown the findings thereof, which we have also found to be unexceptionable. Thus we agree with the learned Judges that the plea of frustration raised try the petitioners is untenable and that it has been raised only as a pretext to avoid their liability to make the payment. In the circumstances of this case, the respondents were not obliged under the law to re-determine the amount in a formal' manner as if it was between the contesting parties, not were they required under the law to file a suit for determination of the amount. The case-law cited by the learned counsel is of no assistance to the petitioners. None of the arguments raised has any force. This petition fails and is accordingly, dismissed.