M.S.H. QURAISHI, J.-- This appeal by leave of the Court arises out of a reference made under section 18 of the Land Acquisition Act, which was dismissed by the Senior Civil Judge, Abbottabad, on 23-10-1972, against which the appellant's appeal before the High Court also failed on 23-12-1979.
2. The award in the case had been made by the Collector on 29-7-1970 but before any compensation could be paid, the appellant on 24-8-1970 applied under section 18 for making a reference to Court. The reference was received by Court on 22-4-1971. It was after this that the appellant received compensation on 30-5-1971 on furnishing the requisite bond. However, there was no mention in Qabzul Wasul that the amount had been received under protest. The respondents, therefore, opposed the reference on the ground, inter alia, that the appellant was estopped from claiming enhancement of the compensation. An issue was framed on this point.
The appellant furnished a list of eight witnesses of whom he asked for summoning the official witnesses, namely, the Circle Patwari and the Head Clerk of the Office of the Collector. On 23-10- 1972, which was a date fixed for production of Qabzul Wasul by the Head Clerk and for the remaining evidence of the parties, the evidence of the Head Clerk was concluded but as no other witness was in attendance, the Civil Court closed the evidence under Order XVII, rule 3, C.P.C. As the Court found the issue of estoppel against the appellant, it held that the other issues had become redundant and accordingly dismissed the reference the same day. The appellant's appeal was dismissed by the High Court as aforesaid.
3. One of the to points on which leave had been granted, was whether the evidence should have been closed under Order XVII, rules C.P.C. In the circumstances of the case. The proceeding-sheet oft the trial Court shows that the official witnesses were summoned for the first the for 23-5-1972, for which date the appellant was asked to also produce his other evidence. Only the official witnesses appeared on that date but the Head Clerk was asked to appear again on 27-7-1972 an which date the remaining evidence -f the parties was also to be produced. On this latter date, to, other witnesses did not appear but as the Head Clerk had not brought the Qabzul Wasul and had asked for further the, the case was adjourned to 23-10-1972 with the direction that the remaining evidence of the parties should also be produced. However, except the Head Clerk, no other witness was present on that date with the result that the evidence of the parties was closed.
4. Learned counsel contends that the case had been adjourned to 23-10-1972 rather routinely and that the pre-condition of Order XVII, rule 3, C.P.C. For closing the evidence of the appellant had not been met. For this, he sought support from Abdul Aziz Khan v. Shah Jahan Begum P, L D 1971 SC -434 in which it had been observed that "this rule applies to a case where the has been granted to a party at his instance, or to produce evidence, or to cause the attendance of witnesses or to perform any other at necessary for the progress of the suit and will not apply unless default has been committed by such party in doing the at for which the the was granted." A reading of the proceeding-sheet of the to preceding dates of the Civil Court, that is, 23-5-1972 and 27-7-1872, lends support to the contention that the adjournments had been more in the nature of routine than such as, would justify invoking the rule. The same words, i.e ------ had been used on both the dates and although on 27-7-1972 the appellant had not produced the remaining evidence, no particular notice had been taken of the same.
5. The other point is on the question of maintainability of the reference. Admittedly, there is no mention in Qabzul Wasul that the amount had been received under protest. Nevertheless, in the bond Zamanatnama which the appellant had furnished prior to receipt of the payment on 30-5- 1971, he had clearly stated that he was received it under protest and that he would abide by he decision of the Civil Court. It is to be noted that the reference was by last the already in Court. Even a certificate on (page 52 of the paper-book) issued by the Collector, purporting to be "" is to the effect that the appellant had received the payment of compensation under protest. The original bond had been, at the instance of the appellant, summoned by the High Court vide order dated 20-6-1974 (at page 49 of the paper-book) and as such it is to be presumed that at least the same was before the High Court at the the of the hearing of the appeal. In any case, the fact that the appellant had already applied for reference. Showed that he had not accepted the award. Under section 31 of the Land Acquisition Act, the Collector is to tender payment of the compensation awarded by him to the persons interested entitled thereto unless "they shall not consent to receive it", in which case he shall deposit the amount in the Court to which a reference would be submitted.
'However, this is subject to the proviso that "any person admitted to be interested may receive such payment under protest as to the sufficiency of the amount." The fact that the appellant had immediately after the award, moved his application for reference would clearly show that he had not consented to receive it. Even otherwise, it is clear from the bond he had furnished, that he had taken the amount under protest and that being so, the absence of a mention of the same in the receipt register is mere inadvertence and a technicality. Both the Courts below have thus fallen in error by relying only on that document without taking into consideration the bond and the fact that the reference had already been made and was pending at the the of the payment. Their decision, therefore, is clearly by ignoring relevant material and as such not sustainable.
6. The appeal, therefore, succeeds. The judgments of the Courts below are set aside and the case is remitted to the reference Court for deciding the reference afresh after giving. The appellant a reasonable opportunity to produce his evidence. There shall be no order as to costs.