1. ' This is a IInd Appeal arising out of judgment of IIIrd Civil Judge, 1st Class, Karachi in Suit No, 38/65 dated 26-5-1966 and the judgment in Appeal No, 559/66 passed by A. D. J., Karachi on 22-4-1969.
2. ' The appellants/plaintiffs had filed a suit for restraining the respondent K. M. C. From realising taxes in respect of Nairang Cinema owned by the appellants/plaintiffs at Lalukhet, Karachi. The K. M. C.
3. Had demanded Rs, 10 per show from the appellants/plaintiffs on 26-2-1961 for the period 28-5-1957 till 17-11-1958 on the ground that. Lalukhet area had been included in K. M. C. Limit from 28-5-1957.
4. The appellant does not appear to have paid the said taxes, On 21-2-1965 the K. M. C. Sent another notice of demand and demanded taxes from December 1953 to March 1955 and then from April 1955 to 17-11-1958 amounting to a total of Rs, 58,010.36. K. M. C. Had also demanded property tax from 1964-65 which have been paid by the appellants and there is no controversy in respect of the same.
5. ' In the plaint, the appellants had claimed that Lalukhet was not a part of K. M. C. Area. They had placed reliance in the plaint itself upon a judgment of Division Bench of this High Court in Writ Petition No, 237/1961 entitled Messrs Firdous Cinema v. K. M. C., decided on 28-2-1963 where it had been held on the basis of a Civil suit already decreed in favour of Begum Shaker Bano, the previous owner of Messrs Firdous Cinema Limited that Lalukhet area was not a part of the Municipal area of the city of Karachi till 25-7-1955. The judgment in that writ petition proceeded on the basis of res judicata. The appellant basing his case on the judgment of the above writ petition had claimed that it was not bound to pay any taxes to K. M. C. As the area had never been included in the K. M. C.
6. Limit. The K. M. C. Had denied that position and had alleged that Lalukhet had ever remained within the limit of the K. M. C.
7. ' The parties did not lead any evidence and both the parties relied upon the judgment of the High Court in Writ Petition No, 237/61. The Civil Judge dismissed this suit of the appellant by relying on observation made in the earlier part of para. 7 of the judgment in the said petition, which is to the following effect :- "Now, dealing with these arguments of Mr. Fazle Haq it is necessary for us to examine each of his arguments separately. With regard to the first argument that the area included within the municipal limits of the city of Karachi by the Notification of 28-5.1957 had not been validly excluded by the previous notification of the then Government of Sind dated 30-10-1947. We would hold the logical result of this argument to be that this area had neither been validly excluded nor validly included within the municipal limits of the City of Karachi. The position would then appear to be that this particular area all along continued to be a part of the municipal area within the municipal limit of the City of Karachi."
8. ' The appellants had however, relied upon following part of para. 7 of that judgment : "But, so far as this particular case is concerned, this result cannot ensue for the simple reason that the judgment of the First Class Sub-Judge, Karachi, in the Civil Suit filed by Begum Shaher Bano and referred to in para. 1 above would operate as res judicata in other words this particular area has already been held by a competent Court of Law not to be a part of the Municipal area of the City of Karachi, till 25-7-1955. Since therefore, this particular area in which the Firdous Cinema is situated was not within the municipal limits of the City of Karachi on 25-7-1955, it can thereafter only be included within these limits by some Special Resolution to that effect, an% it seems to us, that this Special Resolution or notification is Notification No, SRO 26(R) dated 11-10-1960 and more fully mentioned in para. 5 above. According to this notification the area within which the petitioners'
9. Cinema is situated would fall within the municipal limits of the City of Karachi as from 11-10-1960, as contended for by Mr. Fazle Haq in his second argument."
10. ' In respect of this portion of the judgment the learned Civil Judge was of the view that since the same was based on res judicata between the parties to that petition, therefore, the same did not apply to the facts of the case of the appellant.
11. ' The appellants appealed against that judgment and also filed 2 notifications one of which was issued by the Government of Sind in October, 1957 in Sind Gazette and bad excluded 805.33 acres in the Trans Lyari Quarters in the City of Karachi from the limits of the K. M. C. It is agreed between the parties that this was the area of Lalukhet. Second notification filed by the appellants before the Appellate Court was issued by Chief Commissioner of Karachi on 28th May, 1957 which included the same area within Karachi Municipal Corporation limits. Nothing else was done by the appellants except bringing two notifications on the file of the Appellate Court without any request of summoning any person from the Secretariat of Sind Government to prove as to what steps had been taken in respect of these notifications particularly with reference to the provision of section 271 of the City of Karachi Municipal Act, 1933 which is to the following effect :- "271.-(1) The Provincial Government may notify its intention, after consulting the Corporation, to exclude from, or include in, the City any local area defined in the notification : ' Provided that no area which is, or is part of, a military cantonment shall be included in the City.
(2) The Corporation or any inhabitant of the City or of a local area in respect of which a notification has been published under subsection (I), may submit to the Provincial Government any objection, in writing to the alteration proposed within six weeks from the publication of the notification, and the Provincial Government shall take such objection into consideration.
(3) When six weeks from the date of the publication of a notification under subsection (1) have expired and the Provincial Government has considered any objection submitted under subsection (2), the Provincial Government by a further notification may exclude from or include within the City any local area in respect of which the notification under subsection (1) was issued, or any part thereof, and Schedule X shall be deemed to have been amended accordingly."
12. ' Mr. Akhtar Mahmood has contended that the two Courts below have misconstrued the judgment in Writ Petition No, 237/61 and they have failed to determine the effect of the two notifications referred to me in the preceding para. He has also stated that the K. M. C. Having admitted in their notices dated 22-6-1961 that the area in question had been included in the K. M. C. Limits from 28- 5-1957, they could not be allowed to go back on their admission and to claim that disputed area had always remained a part of the K. M. C. In respect of the last contention Mr. Muslim Naqvi for the K. M. C. Had replied that a notice of demand could not be construed as an admission on the part of the K. M. C. And the K. M. C. Could not be, debarred from taking a legal plea if it was available to them. Mr. Muslim Naqvi is quite right as there is no estoppel against law. Mr. Naqvi's contention is that the area could be excluded from the K. M. C. Limits only after provisions of section 271 of the City of Karachi Municipal Act, 1933 had been fully followed. He relies upon the earlier part of the para. 7 of the judgment in Writ Petition No, 237/61 where the observation is to the following effect :- "We would hold the logical result of this argument to be that this area had neither been validly excluded nor validly included within the municipal limits of the City of Karachi. The position would then appear to be that this particular area all along continued to be a part of the Municipal area within the Municipal limits of the City of Karachi."
13. ' Contention of Mr. Muslim Naqvi was that the judgment in writ petition favoured the K. M. C. In general terms but went against K. M. C. Only on the basis of res judicata and since the present appellants were not a party to the earlier judgment, therefore, it could not have the benefit of rev judicata for his case. The contention appears to be correct. There cannot be any estoppel against law and I will presently notice that the other contention of Mr. Akhtar Mahmood is also completely justified.
14. ' Mr. Akhtar Mahmood's 1st contention that the two Lower Courts below have misconstrued the judgment of the High Court in Petition No, 237/61 is justified, however, to some extent. Mr. Akhtar Mahmood states that the High Court had not given its own finding in para. 7 in respect of the exclusion or inclusion of Lalukhet from K. M. C. Limits but had merely given the logical result of the argument of Mr. Fazie Haq, saw learned counsel for K. M. C. In that petition. The criticism appeal v,1 be a bit justified. The observations in para. 7 of the judgment in that petition are really the outcome of the argument of the counsel. But those observations were also based on the submission of the counsel of the petitioner Mr. Hafeez Ahsan as contained in para. 4 of the judgment in the said judgment where he had asserted that the notification of 28-5-1957 was made without observing the formalities prescribed in the three subsections of section 271. The next para. Of the same judgment took note of the argument of the K. M. C.'s counsel who conceded that the requirements of section 271 had not been complied with before promulgating the notification of 28-5-1957 but he further contended that similarly in respect of the notification of 30th October, 1947, which had exclude41 the area from K. M. C. Limits, the requirements of section 271 had not been complied with.
15. It was, therefore, case of both the parties in that writ petition that formalities prescribed under section 271 were necessary and they had not been complied with in respect of notification of 1957 while in respect of the notification of 1947, the contention of the counsel of K. M. C. Had not been controverted by the counsel for the petitioner and, therefore, the Division Bench made those observations and it took it as granted that the contention of the K. M. C.'s counsel was correct. That question, however, did not receive the consideration of the High Court and it did not consider and did not itself give a finding in respect of the fact whether the provisions of section 271 of K. M. C. Act, 1933 had been actually complied with or not. But in any case the observations of the Division Bench were there and the lower Courts were not completely unjustified in relying upon the observations made in the earlier part of para. 7 of the judgment in that petition.
16. ' Since the appellants had merely relied upon that judgment in Petition No, 237/61 before the civil Court without even producing the notification of 1947 and had not proved that the provision of section 271 of City of Karachi Municipal Act, 1933 had been complied with before issuing the notification of 30-10-1947, therefore there was no material either before the Civil Judge or the Additional District Judge to hold that the notification of 30th October, 1947 had the effect in law of excluding Lalukhet from K. M. C. Limits.
17. ' Mr. Akhtar Mahmood has contended that I should presume that the formalities required under section 271 (1) of the Act had been complied with. However, there is no justification to make that presumption as the notification under section 271(1) of the Karachi Municipal Act, if there had been any, could have been easily produced by the petitioner. No one has even suggested that the K. M.
18. C. Was ever consulted in respect of exclusion of Lalukhet area from its limit. It was for the appellants/ plaintiffs to prove their case affirmatively and since that had not been don; therefore, the lower Courts below could not have presumed that the area had been legally excluded in 1947.
19. ' I must here observe that para. 7 of the judgment in Petition 237/61 had clearly indicated that the two notifications of 1947 and 1957 had not been made in consonance with the provision of section 271(1) of City of Karachi Municipal Act, 1933 and since the main plank of the appellants/plaintiffs was this judgment in the writ petition therefore, the appellants/plaintiffs very well knew all these deficiencies of the two notifications at the time when they had filed the plaint and, therefore, the appellants/plaintiffs, if they wanted to improve upon the position as it prevailed in the said writ petition, it was incumbent upon the appellants to prove that the formalities prescribed under section 271 of the Municipal Act had been properly complied with. Merely filing the said two notifications did not have the effect of proving compliance of the other formalities required like consultation with K. M. C. And intimating the intention to exclude the area and taking the objections of K. M. C. Into consideration before excluding the area from K. M. C. Limits.
20. These were all matters of importance and failure to comply with the same could have the effect to making an action without their compliance as an illegality. But appellants/plaintiffs failed to adduce the relevant proof and hence the two lower Courts below have rightly decided the matte against the appellants. I would, therefore, dismiss this IInd Appeal with costs. However, in view of the fact that big amount is involved I would accede to the request of the appellant's counsel that the amount of taxes be recovered by the K. M. C. From the appellants after expiry of 6 months from today. Mi. Muslim Naqvi, learned counsel for K. M. C. Has undertaken that the K. M. C. Could not recover the disputed taxes from the appellants till after 6 months. With these observations the IInd Appeal is dismissed with costs.