The respondent herein who was owner of Bilal Ice Factory, Mohallah Qadir Abad (Ghulam Muhammad Abad), Faisalabad had filed a declaratory suit that notice dated 9-6-1991 containing the demand of Rs,2,24,273 was unjust, without lawful authority, mala fide, illegal and inoperative qua his right and that he was not liable to pay the said amount. By filing, written statement, the petitioners/defendants contested the same, raising, number of preliminary objections as to the maintainability of the suit that the matter for the recovery of the dues as arrears of land revenue was pending with the Tehsildar. who had initiated proceedings under the Land Revenue Act. The assertions of the plaintiff as to the merits of the matter were also contested. Several issues were framed by the trial Court whereafter .evidence was produced by the parties. The plaintiff/respondent it appeared as P.W.1 and tendered in evidence, Exh.P.1 a copy of application/letter dated 14-3-1990. From the petitioners side, Abdul Rashid D.W.1 produced an undertaking dated 30-4-1990 that the due bill will be paid in instalments. The learned trial Court disposed of Issues Nos, 1 to 7 together against the defendants observing that onus to prove the same had not been discharged by the petitioners/defendants. Issue No,8 was considered to be the one having importance. While deciding the said issue, the sole testimony of the respondent/plaintiff was considered corroborative of the contents of the plaint and placing reliance upon Exh.P.1, the suit was decreed on 14-4-1993. An appeal preferred by the petitioners, thereagainst, was dismissed by the learned Additional District Judge, Faisalabad on 18-4-1994. This is now revision petition thereagainst.
2. It is contended by the learned counsel that notice which had been made the basis for the suit and cause of action had not been produced by the respondent, the suit could be dismissed for this reason alone. It is contended that the suit was not maintainable as the proceedings for recovery of the dues as arrears of land revenue under section 54-A of. Electricity Act 1910 and the relevant provisions of the Land Revenue Act, 1967 were pending. The disputes, the applicability of Exh.P.1 qua the demand for which the proceedings had been commenced. It is contended that both the Courts have committed serious illegality in the matter and acted without jurisdiction and the judgments are not sustainable. Reference has been made to Muhammad Mureed v. Government of Punjab and 2 others (1979 CLC 151), Mehr Lal Kabir v. Tehsildar, Shorkot and 3 others (1984 CLC 2978), Messrs Pak Factory v. WAPDA and others 1987 MLD 2277 and Nosher Khan v. Punjab Province and another (PLD 1981 Lahore 661).
3. The learned counsel for the respondent supports the findings on the judgments of the Courts below with emphasis that concurrent view taken by the Courts cannot be interfered with by this Court. It is contended that Exh.P.1 has correctly been appreciated and interpreted by the Courts below and the suit has rightly been decreed. It is, however, could be admitted that notice C assailed in the suit had not been brought on record.
4. The perusal of the plaint would clearly demonstrate that demand raised through the notice which statedly furnished the cause of action for the filing of the suit assailing the demand made therein (the date of such a demand is different at places in the plaint it is 9-6-1991 in the caption of the plaint and the prayer clause whereas in paragraphs Nos, 7 and 10 of the plaint it is 19-6-1991) was not brought on record. The relevancy and importance of the same could not be overlooked or ignored inasmuch as the same might have disclosed the relevant information and also would have been of use in determining the import and applicability of Exh. P.1 which has been mainly considered by the Courts below as of fundamental relevance for granting decree in favour of the respondent. It is the grievance of the learned counsel for the petitioners that Exh.P.1 was not admissible in evidence. An objection was also raised and was noted by the learned trial Court, but was not decided at any stage. It is also the grievance that ,in view of the preliminary objections, issues as to the maintainability of the suit in particular Issue No,2 had to be decided first, but despite, an application made by the petitioner for that purpose, it was not adverted to, but was decided against the petitioners alongwith other Issues (Nos, 1 to 7) taking the view that no evidence had been produced by the petitioners/defendants in support thereof. The grievance so raised is not without basis and substance inasmuch as for deciding Issue No,2 as to whether the suit was maintainable, no evidence was required and only the relevant provisions of the Electricity Act and Land Revenue Act had to be considered.
5. As mentioned above, the charges for the supply of energy or any other some outstanding against a consumer can be recovered as arrears of land revenue in view of section 54-A of the Electricity Act, 1910. The relevant provisions in Chapter-VIII of the Land Revenue Act 1967 had been invoked by the petitioners and notice of demand had been served on the consumeer/respondent.
It is that notice which had been assailed before the trial Court by filing the suit. Section 91 of the Land Revenue Act imposes certain conditions for availing of remedies. In case the person concerned denies his liability, he could make deposit of the amount under protest and institute the suit in the Civil Court for the recovery of amount so paid. In Muhammad Mureed's case (supra) it was observed that in order to ensure that "this provision (section 91) is not abused by persons against whom demands arise has put in a condition that if the liability in respect of the demand is denied the amount should be deposited under protest first and recovered back through a suit." In Nosher Khan's case (supra) also similar view was taken. In Muhammad Aslam v, Punjab Province through Collector, Sheikhupura (1997 CLC 1302). It was again observed that the person proceeded against under section 91 of the Act had to make deposit under protest before challenging the demand in the Civil Courts otherwise, the suit was liable to be dismissed. This being the position and the admitted fact that the respondent / plaintiff had not deposited the amount before filing of the suit. the suit was liable to be dismissed. Both the Courts below have not adverted to this aspect of the matter thereby committing an illegality in rendering their judgments which illegality need to be corrected and interfered by this Court in revisional Misdiction. Their judgments are. thus, not sustainable in law.
As a result of the above, this revision petition is accepted setting aside the judgments and decrees rendered in this case by the Courts below. No order as to costs.