' This second appeal is directed against the judgment and decree dated 16-12-1970 passed by the learned Additional District Judge, Rawalpindi.
2. The facts necessary for the purpose of this appeal, briefly stated, are that the respondent submitted tender in September, 1961 for felling of trees from Forest compartment No, 48-I-D, Murree and on acceptance of his tender at a bid of Rs, 2,97,000.00 an agreement for sale was executed between him and the Forest Department of the Government of West Pakistan on 25-11-1961.
According to the case of the respondent he deposited a sum of Rs, 10,000.00, as security whilst the balance amount of Rs, 2,87,000.00 was to be paid in instalments. It has been asserted in the plaint that an amount of Rs, 2,43,000.00 was paid by the respondent-plaintiff by deposit in Treasury through Treasury challans whilst Rs, 44,000.00 were paid by him in cash to the Range Officer who acknowledged the payment by endorsements made on the application of the petitioner for issue of permits. The cash payment was statedly misappropriated by the Range Officer who after Departmental inquiry was dismissed from service and a case was also registered against him under section 409, P. P. C.
' It has further been asserted in the plaint that despite the above position that the total sum of Rs, 2,97,000.00 under the contract had been paid the appellant-Department erroneonsly raised a demand against the respondent for Rs, 48,611.70. This gave a cause to the respondent-plaintiff who instituted the suit against the Province of West Pakistan out of which this appeal has arisen for permanent injunction restraining the appellant Government from interfering in the felling etc. Of the trees by him from Forest compartment No, 48-I-D, Tehsil Murree, District Rawalpindi and for a mandatory injunction directing the appellant-defendant to give credit of Rs, 40,000.00 paid by the respondent to the Range Officer in cash towards the price of the said trees.
3. The suit was resisted by the appellant-defendant and on the divergent pleadings of the parties the following issues were framed by the learned trial Court : (.1) Whether the suit is unmaintainable? (Based on preliminary objection)?
(2) Whether the order of the defendant for the recovery of sum of Rs, 48,611.70 is illegal and is not warranted?
(3) Relief.
' The learned Administrative Civil Judge, Rawalpindi vide judgment dated 15-5-1968, found issue No. 1 against the appellant-defendant and held the suit as maintainable. On issue No, 2 he recorded a finding adverse to the respondent-plaintiff and in the result dismissed the suit of the respondent plaintiff, vide the judgment and decree dated 15-5-1968.
4. Feeling aggrieved the respondent-plaintiff preferred an appeal to the learned Additional District Judge, Rawalpindi who by his judgment dated 16-12-1970 accepted the same and reversed the finding of the learned trial Court on issue No, 2, and as a result decreed the suit of the plaintiff-.
Respondent, leaving the parties to bear their own costs.
5. Feeling dissatisfied the appellant-defendant has come up to the Court in this Second Appeal.
6. The learned counsel for the appellant contended:- ' Firstly, that rule 15'51 of the W. P. Forest Manual has been misinterpreted by the learned lower Appellate Court. He in particular referred to sub-rules (d) and (f) of rule 15'51 and submitted that a conjunctive reading of the aforementioned two sub-rules clearly leads to the conclusion that no payment could be accounted for against the Government unless the same had been made in accordance with the provisions contained in the said sub-rules ; ' secondly, that the finding as regards the actual payment of Rs, 44,000'00 by the respondent to the appellant is also based on misreading of the record and cannot be sustained. Referring to Exhs. P. 1 to P. 3, P. 5 and P. 28 which have been made the basis by the lower Appellate Court for holding that payment of the sum of Rs, 44,000'00 has been made in cash, the learned counsel contended that ever these documents do not prove the payment of the total amount of Rs, 44,000'00 in cash ; and ' lastly, that the learned lower Appellate Court has drawn wrong inference from the pendency of a case against the Range Officer under section 409, P. P. C. By holding that the registration of that case proved payment of the amount in dispute to the Government.
7. On the contrary, the learned counsel for the respondent submitted that rule 15.51 is not intended for payments made under a contract and that receipts in form No, 14, the pro forma of which is Exh.
P. W. 2/1, are used for payment of petty sales made on the spot by the petty officers like the Foresters and not applicable to the payment of huge amounts payable under contracts.
' The learned counsel for the respondent next contended that the payments have been proved by the respondent by documents Exhs. P. 1 to P. 5 and P. 28 as also by production of oral evidence of P.
W. 2 and the respondent himself. He also submitted that the evidence of D. W. 3 further establishes the payment made by the respondent in cash.
8. The learned counsel for the appellant, in reply, submitted that no payments had been established as having been made in cash and that the learned lower Appellate Court was wrong in stating that the learned trial Court did not give a conclusive finding on this issue. He referred to para. 7 of the judgment of the learned trial Court and contendel that there is a definite finding by the learned trial Court that the respondent-plaintiff has not been able to prove payment of the amounts in cash.
' As regards the issuing of import permits by the Divisional Forest Officer which has been made the basis of drawing a presumption in para. 13 of the impugned judgment, the learned counsel for the appellant submitted that the import permits had been issued because of the position that in the endorsement of the Range Officer it was clearly stated that the payment had been received and that there were challans submitted by the respondent-plaintiff to the Range Officer excepting in the case of Exhs. P. 1 and P. 28,
9. The issue under agitation in the present appeal viz. Issue No, 2 will have to be divided into two portions for its effectual adjudication-
(1) Whether the respondent has been able to establish the actual payment in cash of the sum of Rs, 44,000'00 as asserted by him?
(2) Whether payment made in the manner alleged can be deemed to be a payment to the Government in accordance with the rules governing the subject?
' The latter part in its wake requires interpretation of rule 15.51 of the W. P. Forest Manual. Taking the latter portion first I would like to reproduce hereunder the relevant portions of rule 15.51 as it will facilitate the discussion on this part of the issue.
"15.51(2)(d). Usually purchasers pay money due on their purchases direct into the treasury, for which purpose printed treasury challans should be supplied to them by Range Officers. In exceptional cases when the circumstances so require or when the amount due is less than Rs, 100 and Rs, 500 in the case of Jallo Rosin and Turpentine Factory, the amount may be realized in cash which should be remitted into the treasury as soon as possible.
(f) A receipt on Form No, 14 of the Forest Department Code, 7th Edition, must be granted to every person from whom any amount is realised on behalf of Government. No receipt on unprinted paper or on any form other than that prescribed shall be held to be a legal and formal receipt for revenue money paid. However, in cases where permits for petty quantities of forest produce or for grazing are issued immediately on receipt of payment such permits shall be considered as the payee's receipt."
' The learned trial Court while interpreting rule 15.51(2)(d) held that the Range Officer was not competent to receive payment in cash in excess of Rs, 100.00, whilst the learned lower Appellate Court held that there is no limitation on the amount that can be paid in cash and that the limitation to the amount being less than Rs, 100.0i and Rs, 500.00 is confined to the case of Jallo Rosin and Turpentine Factory. I am afraid the interpretation put on these rules by both the Courts below is erroneous. Rule 15.51 as a whole deals with instructions regarding the preparation and maintenance of range accounts. Rule 15.51(2)(d) requires that usually the purchasers shall pay money direct into the treasury but in exceptional cases when the circumstances so require or whom the amount due is less than Rs, 100.00 in any case and in the case of Jallo Rosin and Turpentine Factory the amount due is less than Rs, 500.00 the amount may he realized in cash to be remitted to the treasury as soon as possible after its receipt. It would thus be seen that this rule could be reasonably interpreted to say that amounts in excess of Rs, 100.00 in all cases could be received in cash provided there were exceptional circum- A stances as the use of the words "or when the amount due is less than Rs, 100.00" makes it clear that when the amount is less than Rs, 100.00 it can be received in cash even without exceptional circumstances but if the amount received in cash is in excess of Rs, 100.00 then the circumstances shall have to be exceptional.
Now a reading of rule 15.51(2)(f) will show that it is a mandatory requirement that when any amount is realized a receipt in form No, 14 of the Forest Department Code, 7th Edition, has to be issued. The further embargo in this rule which is in every categorical terms is that no receipt on unprinted paper or on any form other than that prescribed shall be held to be a legal and formal receipt of revenue money paid. The only exception to C the issuing of the receipt is in cases where permits for petty quantities of Forest produce or for grazing are issued immediately on receipt of payment when such permits are to be considered as the payee's receipt. On a true construction of the above rules it therefore emerges that for payments to be made in cash in excess of Rs, 100 following requirements have to be fulfilled :
(i) that there should be exceptional circumstances for making payment I cash ;
(ii) that when cash amount is realized, a receipt in form No, 14 has got to be issued, and
(iii) that payment in cash towards revenue can only be accounted for if a receipt in Form No, 14 has been issued and receipt of any other form whether on an unprinted paper or on any form other than form No, 14 cannot be deemed to be a legal and formal payment towards the revenue for which it is paid.
' Apply the above principles to the payments allegedly made by the respondent in cash towards the consideration of the contract it can be safely said that those do not fulfil the requirements of the above rules. The reasons therefor are
(i) that no exceptional circumstances have been shown which necessitated the payments in cash ;
(ii) that no receipt admittedly was issued in Form No, 14 ; and
(iii) that the respondent had been having transactions with the Forest Department for a long time and on his own admission as per his statement knew the manner and mode of payment that could be adopted for making payments to the Department against contracts. That being so, it has to be presumed that he knew the requirements of rule 15.51(2)(f) which uses a prohibitory language to the effect that no receipt on unprinted paper or on any form other than form No, 14 can be taken as legal and formal payment of the amount towards the revenue of the Forest Department.
' In addition it may be observed that the only exception to the rule is the cases of petty quantities of forest produce when the permit has to be taken as the payee's receipt. It is admitted position that the payments made by the respondent allegedly in cash were not against petty quantities of forest produce or for grazing.
'
10. The above facts lead to the irresistible conclusion that even if it be assumed that payments have been made in cash by the respondent to the Range Officer of the Forest Department the said payments in cash cannot be treated as legal payments absolving the respondent from his liability under the contract. It is a well-established principle that when the law requires doing of a thing in a specified manner it has got to be done in the prescribed manner and doing it in any other manner shall have no validity in law. There being a specific requirement in law of making payment through treasury challans except in exceptional circumstances and no exceptional circumstances having been brought on record, and apart altogether from the above position the alleged payment in cash having also not been supported by a receipt specified for the purpose, the payment even if made shall not be deemed to have been in accordance with law and thus would not absolve the respondent from his liability. Reference if any required in support of the above principle may usefully be made to- Nazir Ahmad v. Emperor AIR 1936 P C 253(2).
E. A. Evans v. Muhammad Ashraf PLD 1964 SC 536 and Government of W. Pakistan through Collector, Gujranwala v. Land Acquisition Collector, District Gujranwala etc. PLD 1979 Lab.
54.
11. Before parting with this aspect of the matter, the contention raised on behalf of the respondent that rule 15.51 of the W. P. Forest Manual Vol. 11, would not govern payments under contracts needs to be dealt with. This contention I am of the view has no substance. Rule 15.51(2) deals with the revenue of the Forest Department which, inter alia, includes revenue to be received from contracts of felling etc. Of trees from the Forest. The basis for this submission was that since there was a contract between the respondent and the appellant-Government regarding the felling of trees from a particular area it would be the terms and conditions of the contract which would govern the matter and not the general rules. Now the contract has not been placed on record, a copy of which is admittedly provided to the. Contractor (respondent) at the time of execution of the same. The onus of proof of the issue in question being on the respondent it was his duty to have placed the contract on record to substantiate his assertion that he could make payment in cash in disregard of the general rules governing the subject. Unless it had been shown specifically that the terms of the contract contained mode of payment other than prescribed by the general rules it has of necessity to be presumed that contract contained all the requirements as to mode of payment etc. As are applicable generally to all cases of revenue of the Forest Department. In the absence of the contract the only thing that can be adverted to for the purpose of resolving the controversy are the rules and the relevant rule in respect of payments has been discussed above.
12. Additionally, it may be observed that the submission made by the learned counsel for the respondent before me that rule 15.51 shall not be applicable to the case in hand is a deviation from the previous stand taken by respondent before the Courts below. While discussing this aspect of the matter the learned lower Appellate Court, in para. 8 of its judgment, after having pointed out that the contract from which could be ascertained the mode of payment has not been produced, clearly observed that at the bar both the parties relied upon rule 15.51 as the guiding principle in the matter. That being so, the respondent would be precluded from taking a contrary position that the said rule is not applicable qua the respondent regarding the mode of payment by him under the contract in question.
13. Adverting now to the first limb of this issue that is as to whether actually payment of Rs, 44,000.00 had been made in cash by the respondent as asserted, I would hold that the respondent had not been able to discharge onus of this part of the issue as well. The case of the respondent as per his statement while appearing as P. W. 4 is that he made cash payment of the sum of Rs, 44,000.00 and in this regard he relied on documents Exhs. P. 1, P. 2 to P. 5 and P.
28. He described that as against Exh. P. 1 he made cash payment of Rs, 10,000.00, as against Exh. P. 2 of Rs, 2,000.00, as against Exh. P. 3 of Rs, 10,000.00, as against. Exh. P. 4 of Rs, 10,000.00, as against Exh. P. 5 of Rs, 10,000.00 and as against Exb. P. 28 of Rs, 2,000.00. Now this description in no manner tallies with the said documents, Exh. P. 1 is the application of the respondent wherein he has stated that he has paid Rs, 10,000.00 in cash against which a permit may be issued to him. There is no receipt of this amount in form No,
14. The endorsement of the Range Officer on this application does not unequivocally admit payment of Rs, 10,000.60 in cash. It only says under the relevant column "amount now remitted Rs, 10,000.00" which cannot be construed as cash received.
' Exh. P. 2 is another application for obtaining a permit and in this application the respondent has not even stated that he has made the payment in cash. What he has said The endorsement of the Range Officer on this application is that the contractor has remitted the amount of Rs, 10,000.00 vide treasury challan on 17-7-1963. This document therefore is no manner proves payment of Rs, 10,000.00 in cash as even the issue of profit is on the basis of the treasury challan.
' Exh. P. 3 is again the application for issue of a permit in which the respondent has stated that he paid Rs, 4,000.00 through challan and Rs, 10,000.00 in cash. This figure of Rs, 10,000.00 has been scored off and there is Rs, 1,000.00 written above it. There is no specific acceptance by the Range Officer of cash receipts in his endorsement. It is not explained as to why Rs, 10,000.00 has been paid in cash, especially when simultaneously Rs, 4,000.00 is stated to have been paid through treasury challan on the same date.
' Exh. P. 4 yet another application for issue of permit though mentions payment in cash is falsified by the endorsement of the Range Officer on the basis of which import permit was issued which is to the effect that Rs, 10,000.00 has been paid through treasury challan which is in his office.
' Exh. P. 5 only says which does not mean cash payment even according to the respondent himself.
' Exh. P. 28 only seeks issuing of a permit without any mention of deposit of any amount whatsoever by the respondent. The endorsement of the Range Officer is that he has remitted the amount of Rs, 10,000.00 which is not an acknowledgment of money paid in cash.
' Yet another aspect of the matter which falsifies the stand of the respondent of having made cash payment is comparison of these exhibits with Exh. P. 30 which is the extract of the statement of accounts maintained by the respondent in his ledger regarding the contract in question. The payments in cash shown in this extract are as under : {{TABLE TEXT}} Instalment in Through Document relateable cash through treasury to this date Range Officer challan Rs, Rs, Exh.
26-10-1962 10,000.00 P.4 3-11-1962 8,000.00 2,000.00 P. 28 1-12-1962 10,000.00 P. 5 1-4-1963 10,000.00 P. 3 17-7.1963 2,000.00 8,000.00 P.2 23/24-7-1963 10,000.00 P.1 {{TABLE TEXT}} ' These figures as reflected in the ledger neither tally with the description of amount as given in the corresponding exhibits nor do these tally with the details given by the respondent in his statement as P. W.
4. For example, in Exh. P. 28 there is no mention of mode of payment and though the extract from ledger Exh. P. 30 reflects the remittance of the amount of Rs, 2,000.00 in cash and Rs, 8,000.00 by challan on 3-11-1962, the corresponding Exh. P. 28 is dated 6-11-1962 and does not mention that Rs, 8,000.00 had been paid through challan and Rs, 2,000.00, in cash. Similarly Exh. P. 3 dated 31-3-1963 shows Rs, 10,000.00 in cash and Rs, 4,000.00 through challan, whereas the corresponding entry in the extract from ledger Exh. P. 30 as regards Rs, 4,000.00 is dated 28.3-1963, whilst the cash payment entry is dated 1-4-1963 and thus not connected with the payment allegedly made on 31- 3-1963. Exh. P. 2 is dated 31-7-1963 and the corresponding entries attributed to this document in Exh.
P. 30 are dated 17-7-1963. There are thus discrepancies which make the accounts of respondent doubtful. Comparing Exh. P. 30 entries with the statement of the respondent appearing as P. W. 4 it would also be observed that these also do not inspire confidence. The following table will bring out the contradictions {{TABLE TEXT}} Document Amount as per Exh. Amount as per statement of P. W. 4 Exh. Rs, Rs, P. 1 10,000.00 10,000.00 P. 2 10,000.00 2,000.00 P. 3 4,000.00+ 10,000.00 14,000.00 10,000.00 P. 4 10,000.00 10,000.00 P. 5 10,000.00 10,000.00 P. 28 2,000.00 54,000.00 = 44,000.00 {{TABLE TEXT}} ' In the above state of affairs it could hardly be held safely that the respondent has been able to show actual payments of Rs, 44,000.00 in cash. As per averment in documents the specific cash payments asserted are only of the sum of Rs, 30,000.00 as per Exhs. P. 1, P. 3 and P. 4 with a cutting and overwriting yin P. 3 and with a contradiction in Exh. P. 4 by the endorsement of the Range Officer mentioning the payment as through treasury challan.
' Coupled with the above state of affairs of accounts another factor which has persuaded me to hold that as a matter of fact even the payment of Rs, 44,000.00 in cash by the respondent cannot be taken as having been made, in his own admission in his cross-examination that he was convicted of an offence under section 420, P. P. C. By the Sessions Judge and sentenced to undergo 4 years' R.
1. And fine of Rs, 24,500 in relation to another transaction of similar nature. There were other cases also against the respondent such as Case No, 126/2 of 1952 wherein he has admitted conviction by the Sessions Judge by his judgment dated 13-12-1954. As regards two other cases, reply by him was evasive.
' The sum and substance of the above discussion is that the respondent was not able to conclusively prove payment in cash of the sum of Rs, 44,000.00 and in any case even if it be assumed that he had made some payment in cash the same could not be taken as discharge of his legal obligation under the contract in view of the interpretation that I have placed on rule 15.51(2) of the W. P. Forest Manual, Vol. II. Resultantly I would hold that the finding of the learned trial Court on issue No, 2 was correct and the learned lower Appellate Court erred both on the point of fact as to payment and on the point of interpretation of rule 15.51 and its findings on this issue are, therefore, liable to be reversed.
14. In view of the foregoing discussion, accepting this appeal I set aside the judgment and decree of the learned lower Appellate Court dated 16-12-1970 and restoring that of the learned trial Court dated 15-5-1968 dismiss the suit of the respondent with costs.