GHULAM SAFDAR SHAH, C. J.-These four appeals call in question the decrees and judgments of Senior Civil Judge, Peshawar all dated 13-3-1965, by which the four suits filed before him against respondent/Government were dismissed with costs.
2. The learned counsel for the parties concede before us that the questions of law and facts (except for the difference of amounts involved in each case) are the same; they, therefore, say that all these four appeals may be disposed of by one judgment and we agree with this submission.
3. This case has chequered history :- By Notification No. 47453-D. D.N. Dated 22-9-1951 (Exh. D-1), the Governor of the then province of West Pakistan, exercising powers under sections 39 (1), 41 (1), 41-A and 42 (1) of the Forest Act, 1927 (Act XVI of 1927) and sections 28 and 29 of the Hazara Forest Act, 1936, imposed duty on all coniferous timber entering into the area of former N: W. F. Province from Frontier States and Frontier Regions at the rate of Rs. 2 cubic foot. In consequence of this notification, the interests of appellants, all of whom are timber merchants, became adversely affected, and in order to seek their remedy a suit was filed by them and Mian Musarrat Shah (appel--lant in R. F. A. No. 12 of 1965 and eight others) in the Court of Senior Civil Judge, Peshawar, for declaration that the said notification was illegal, unenforceable and that if any duty was recovered from them thereunder, they would be entitled to its reimbursement. A prayer, byway of con--sequential relief, was also made by them for permanent injunction seeking to restrain the respondent/Government from recovering duty at the enhanced rate of Rs. 2 per cubic foot till the disposal of the suit.
The order of the trial Court dated 16-1-1953 would show that the injunction application was contested by respondent/Government and in consequence it was dismissed. After dismissing the said application, the trial Court considered another application of Musarrat Shah and others in which they had prayed to be allowed to clear their goods by paying duty thereon at old rates. But this application was partially allowed in that the applicants were permitted to clear their goods on paying duty at the enhanced rate of Rs. 2 per cubic foot which, until the decision of the suit was to remain deposited as `amanat' : It is conceded before us that in terms of this order, Musarrat and others cleared their goods, but two months thereafter they withdrew their suit with permission of the Court to file another suit on the same cause of action. It is common ground between the parties that fresh suit was filed by appellants in the Court of Senior Civil Judge, Peshawar, on 8-4- 1953 substantially for the same relief which they had claimed in the previous suit. But as to the maintainability of this suit, objection was taken in the written-statement filed by the respondent Government contending that without claiming the refund of mount deposited by them as duty at the rate of Rs. 2 per cubic foot, the suit would not lie. On this, issue No. 4 was struck by the learned trial Judge and he upheld the contention of the respondent/Government. As regards the merits of the case, the learned trial Judge, under issue No. 8, reached the conclusion that the impugned notification dated 22-9-1951 (Exh. D-1) was wholly legal and not open to exception. In this view, he dismissed the suit. But his judgment was challenged in appeal in the Court of former Judicial Commissioner, N.-W. F. P. This appeal was, as has been conceded before us, withdrawn in consequence of an application filed on 12-4-1958 in which it was alleged that the appellants had already received their remedy at the hands of respondent/Government. It would be pertinent to mention that when this application was taken up in Court, there was no notice to the respondent/Government to be present and the Court granted the desired permission to withdraw the appeal to these words:- "Permission to withdraw from the appeal under Order XXIII, rule 1, C. P. C. Is granted.
4. It thus happened that the appellants, after having withdrawn their appeal, found some difficulty with the respondent/Government and this led them to file four fresh suits (out of which the present appeals arise) and in there they prayed for the recovery of specific amounts which they had already deposited as duty. These suits were contested by respondent/ Government and the stand taken by them in their written-statement would appear to be reflected by the following issues framed by the trial Court:-
(1) Is the suit within time?
(2) Is the suit barred as res judicata?
(3) Did the plaintiff incur the loss of the suit amount on account of the enhancement of duty on the timber?
(4) Was the amount in suit deposited as a trust in the Government Treasury?
(5) Is the agreement in question not binding on the defendant?
(6) Has the plaintiff no cause of action?
(7) Relief.
On these issues oral and documentary evidence was led by the parties and in consequence the trial Court dismissed all the four suits with costs. The view taken by the trial Court was that the suits were governed by Article 16 of the Limitation Act and were thus barred by time; on issue No. 5, it reached the finding that the amounts deposited by the appellants in Court were not by way of `amanat' and were thus rightly appropriated by the --Government; its finding on issue No. 6 was that the agreement reached between the appellants on one hand and Agha Ghulam Nabi Pathan, the then Minister of Forests,-on the other was not binding on the respondent/ Government; it being inoperative and of no legal effect.
5. Mr. Peer Bakhsh Khan, learned counsel for the appellants, has assailed all these findings of the learned trial Judge. To begin with, he addressed us at great length in regard to the vires of impugned notification, (Exh. D-1). But he seems to have misconceived the factual and 'legal position. The judgment of the earlier suit filed before him by the appellants, would show that on this aspect of the case the parties were at issue, consider--able arguments had been addressed at his bar by both sides and only then he reached the conclusion that the notification in question was entirely legal. Obviously, therefore, the same question could not be re-agitated in the subsequent suits, for it would be hit by the doctrine of res judicata.
Quite apart from this position, the learned counsel took us through the various plaints filed in the present suits, but was unable to show us if he had raised therein any plea in regard to the vires of impugned notification. In other words, since no challenge has been made to the legality of the said notification in the present proceedings nor was any issue struck on that point, it would be impermissible for us to consider the lengthy arguments addressed to us at the bar by learned counsel for the appellants.
Another difficulty in the way of the appellants is that they had with-- drawn their appeal from the Court of former Judicial Commissioner, N: W. F. Province, under Order XXIII, rule 1, C. P. C. Without any permission to enable them to file fresh suits in respect of the same subject-matter. It would, therefore, follow that the present suit filed by them would be barred under Order XXIII (1) (3), C. P. C.
In order to make ourselves clear on this point, it would be proper to reproduce that Order which in relevant parts, read:-
1. Withdrawal of suit or abandonment of part of claim.---(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim.
(2) Where the Court is satisfied-
(a) that a suit must fail by reason of some formal defect, or
(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.
(3) Where the plaintiff withdraws from a suit, or abandons part of a claim, without the permission referred to in sub-rule (2) he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect 'of such subject-matter or such part of the claim.
(4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consent of the others.
2. Limitation law not affected by first suit.---In any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
"(2) Where a plaintiff omits to sue in respect, or intentionally relinquishes, any portion of claim, he shall not afterwards sue in respect of the portion so omitted or relinquished."
6. We also agree with the finding of the learned trial Judge that the suit of appellants was barred under Article 16 of the Limitation Act, which, for the sake of facility, may be reproduced:- "Description of suit Period of limitation Time from which period begins to run
16. Against Government to recover money paid under protest in satisfaction of a claim made by the revenue auth--orities on account of arrears of Revenue or on account of demands recoverable as such arrears.
One year When the payment is made."
We have already mentioned that in the previous suits filed by them the appellants were, in view of their own applications, permitted by the trial Court by its order dated 16-1-1953 to clear their timber by depositing duty in terms of the impugned notification. It is conceded before us that in implementation of the said order, the appellants deposited in the Government Treasury various amounts during the period from 1952 to 1957 and from this it would follow that the present suits filed by them in 1960 and 1964 would be hopelessly barred under Article 16 of the Limitation Act. Mr. Peer Bakhsh Khan, the learned counsel, however, tried to distinguish his case by saying that the said Article would only apply to a case in which money has been paid to Government under protest in satisfac--petition of a claim made by revenue authorities on account of arrears of revenue and not in this case where the amounts deposited were duty on timber. By advancing this contention, however, the learned counsel seems to be oblivious of the concluding portion of Article 16 ibid, namely, "or on account of demands recoverable as such arrears," is which by using, the word "or" the intention of Legislature has been made clear that all cases where monetary demands are recoverable as arrears of land revenue would be covered by the said Article. The arrear of duty on timber is' recoverable as land revenue by virtue of section 5, of Hazara Forest Act and section 82 of Forest Act (XVI of 1927) and this would appear to lay at rest any doubt on this point. The learned counsel was, however, not satisfied with this conclusion and contended that in his case the amounts deposited with the Government were by way of 'amanat' and thus the suits filed by his clients would be covered by Article 120 of the Limitation Act. We are afraid this argument of the learned counsel would be open to objection for more than one reason. It is a matter of record that the application for injunction and the other application wherein the appellants had prayed for the release of their goods by paying duty at the old rates were decided by the trial Court on the same date; it had dismissed the injunction application and thereafter took up .The second application for consideration and allowed it not in the manner as prayed therein but on condition that the appellants will have to deposit the duty on rates prescribed in the impugned notification low by taking Into consideration both these orders, it is clear to us that once the trial Court rejected the injunction application of appellants in which .The prayer made was to restrain the respondent/Government from recovering from them duty at the enhanced rate, it possibly could not have allowed ahem the tame relief by the second order. In this view, therefore the use of word `amanat' by the trial Court in its second order would only mean that so long as the suit was not finally decided, the -respondent/Government would have no right to appropriate the amounts deposited thereunder by the appellants. In other words, once the suits of the appellants were dismissed and the impugned notification was held to be unexceptional, the respondent/Government would have every right to appropriate the amount in question as duty imposed under the impugned notification.
7. Mr. Peer Bakhsh Khan, the learned counsel, next argued that the agreement reached by his clients with Agha Ghulam Nabi Pathan, Minister of Forests, whereby it was agreed that the duty on timber would be reduced from Rs. 2 to as. 10 per cubic foot, would be binding on the respondent/ Government and to that extent the impugned notification would stand modified or rescinded. Exh.
P. W. 5/2, Exh. P. W. 1/1 and Exh. P. W. 2/2 from which the agreement in question (Exh. P. W. 5/1) is attempted to be spelt out, do not support the learned counsel, for all that had been agreed therein by the Minister was that he would recommend to Government to reduce duty from Rs. 2 to as 10 per cubic foot. It is true that the subsequent letter of Government of West Pakistan (Exh. P. W. 5/2) would appear support the learned counsel, but even so it would have no legal value. The impugned notification in this case had been issued by the Governor of West Pakistan both as Chief Executive of the Province as well as an Agent of the Central Government. Obviously, therefore, Letter Exh. P. W.
5/2) of the Provincial Government would have no effect in regard to that part of the impugned notification in which the action of the Governor had been taken as an Agent of the Central Government.
Be that as it may, the intention of Legislature, in view of section 28 of the Hazara Forest Act and section .39 of the Forest Act (Act XVI of 1927), is that the levy of duty has to be made in a notification published in the official Gazette and this was precisely what had been done by the Governor of West Pakistan in this case. However, in case any such notification is desired to be amended or rescinded, the scheme of section 20 of the West Pakistan General Clauses Act shall have to be followed. And in there the mode prescribed is the publication of a notification in the official Gazette.
It is conceded before us that the decision of Government (Exh. P. W. 5/2) was not notified in' the official Gazette and if this be so, then obviously it would have no effect on the impugned notification. It is a well-known doctrine of law that if the law requires the doing of a thing in a specified manner then it must be done in that manner or not at all. Reliance on so-called agreement contained in Exh. P. W. 5/1, would, therefore, appear to be fallacious, for it would be in violation of section 20 of the West Pakistan General Clauses Act.
8. Mr. Peer Bakhsh Khan, the learned counsel, next argued that the impugned notification had been subsequently rescinded by The Government of West Pakistan in 1961. But we do not see the relevancy of this conten--petition. It is conceded that whatever duty was levied oar the goods- of the appellants had been levied and paid by them long before the publication of this notification in the Gazette of West Pakistan dated 28-4 1'961. Obviously, therefore, by this notification past and concluded trans actions --could not be sought to be re-opened. And it was precisely for this reason that by section 4 of Ordinance X of 1962, the Legislature validated retros--pectively the levy and payment of all such duties in these words:- ---Validation of duties purporting to be levied under section 39, Act XVI of 1927.-All duties levied or collected, or intended or purported to-- have been levied or collected by a Provincial Government under section 39 of the Forest Act, 1927 (Act XVI of 1927), or under --section 28 of the North-West Frontier Province Ha-zara Forest Act, 1936 (N.-W. F. P. Act VI of 1937), before the promulgation of this.
Ordinance shall be deemed to have been validly levied aria collected."
9. We are, therefore, of the view that there is no substance icy these: appeals all of which are hereby dismissed with costs.
K. B. A.