RAJA MUHAMMAD SABIR, -- This second apkal undo- Section 100, CPC is directed against the judgment dated 31.5.1976 of learned Additional District Judge, Mianwali. Decreeing the suit of the respondent by reversing judgment of the learned Trial Court dated 28.1.1976.
2. Brief facts of the case are that Muhammad Iqbal Khan tiled a suit for perpetual injunction restraining the appellant from recovering Rs.8337.84 as arrears of land revenue or otherwise from him. In the plaint it was pleaded that the plaintiff obtained lease to collect octroi duty of the defendant-Union Council, Piplan by offering highest bid in the auction for a period of one year w.ef 1st July, 1969 to 30th June, 1970. There was a shortfall in payment by the plaintiff of the aforesaid amount which necessitated institution of the above suit on 20.3.1972. The learned Civil Judge dismissed the suit on 28.1.1976. However, appeal of the respondent was accepted through the impugned judgment dated 31.5.1976 by the learned Addl. District Judge, Mianwali, Which has been assailed by means of this regular second appeal.
3. Learned counsel for the appellant contends that clause of the lease deed (Ex.P-1) provides that the lessee shall be entitled to collect the octroi according to the octroi schedule approved by the Commissioner for Union Council, Piplan, subject to any amendment made from time to time by the competent authority. Therefore, the lessee could not claim rebate of the disputed amount due to exemption of certain items from octroi duty .By the Government. He further submits that in the event of dispute, the respondent-lessee was required under clauses 14 and 15 of the agreement to refer the matter to the Controlling Authority or the Commissioner for his decision but he could not stop payment of the amount due from him. In the presence of the arbitrary clause in the agreement, the Civil Court had no jurisdiction in the matter. The learned counsel argued that the lower. Appellate Court misconstrued the agreement Ex.P-1 and misread the evidence on record, while decreeing suit of the respondent-lessee.
4. Learned counsel for the respondent, on the other hand, submits that under clause 18 of the agreement any increase or decrease in the octroi rates was proportionately adjustable in the lease money. Admittedly, the items referred in para No. 3 of the plaint were exempted from octroi duty, therefore, the lessee was entitled to get the corresponding relief. Learned A.D.J. Has, therefore, correctly interpreted the lease deed in decreeing the suit of the respondent. He further argued that after a period of more than 22 years it would not he just to interfere in the matter merely on the ground that there was arbitration clause in the agreement. The finding of the learned lower Appellate Court is based on proper appreciation of law and evidence on record, as such, this appeal is liable to be dismissed.
5. I have heard learned counsel for the parties and perused the lease deed. It is provided in clause 2 of the agreement (Ex.P-1) that the octroi duty shall he collected by the lessee according to the schedule approved by the Commissioner for Union Council Piplan, subject to any amendment made from time to time by the competent authority. In subsequent clause 18 thereof it is stated that during the lease period any amendment in the octroi schedule shall have the corresponding effect. If the rates are increased, the lessee shall raise the lease amount proportionately but where the rates are reduced, he shall he entitled to reduction in the lease money accordingly. Admittedly the items specified in para No. 3 of the plaint were taxable when the lease was granted to the respondent but they were exempted from the leave of duty during the lease period which caused loss; to him, therefore, he was entitled to relief to make good the loss sustained by him for no fault on his part. He moved the relevant authorities in this connection for reduction of the lease amount but no action was taken and instead of reducing the lease money; recovery proceedings were initiated against him through coercive measures which he challenged in the suit. The learned Additional District Judge while accepting the appeal of the respondent correctly arrived at the conclusion that such a process of recovery through coercive method under the Land Revenue Act of amount not due from him in the circumstances of the case was not justified.
6. The contention of the learned counsel for the appellant that in presence of the arbitration clause in the agreement, the Civil Court had no jurisdiction does not hold good. The respondent has placed on record the documents indicating that he repeatedly requested the Controlling Authority to decide his representation for assessment of the payable lease money in view of the exemption of duty on the items specified in para No. 3 of the plaint but for years together, the same having not done, the respondent had no other appropriate forum for restraining the appellant from adopting coercive measures against him except institution of the instant suit. The impugned order is just and based on proper appreciation of law and evidence on record, which does not call for interference by this Court. Even otherwise at such a belated stage. I am not inclined to send hack the matter to the Arbitrator for decision a. It k likely to prolong the agony of respondent for further many years.
This appeal has no merit and is here by dismissed with no order as to costs.