1. G. SAFDAR SHAH, J.-This appeal by leave of the Court is meant to impugn the judgment of the Peshawar High Court, dated 29-1-1976, by which the appellants' appeal against the decree of the trial Judge was dismissed.
2. The background of the case is that ride contract dated 9-6-1964 (Exh. P. W. 7/D-1), entered into by the parties herein, namely, the Secretary to the Government of the then Province of West Pakistan in the Department of Agriculture and Forests on the one hand and respondent Kazi Abdul Kafil on the other, the appellant Government allowed Kazi Abdul Kafil to cut from the Neelban Forest, Tehsil Mansehra, N; W. F. P. 2,62,000 a. Of timber in consideration of Rs. 11,99,000. According to the terms of the contract, Kazi Abdul Kafil was required to deposit with the appellant Government as security the sum of Rs. 20,000; was to pay the price of the felled timber before its removal from the site and the entire operation was to be completed by him by 31-8-1966. In discharge of his said obligations, Kazi Abdul Kafil deposited the agreed amount of security and thereafter started felling the timber.
3. The admitted position is that for the timber thus felled by him. Kazi Abdul Kafil paid to the appellant Government the sum of Rs. 7,75,000. But subsequently, due to the country-wide strike by private transporter., he could not complete the rest of the operation with the result that he sought from the Chief Conservator of Forests the extension of time on the basis of a policy letter dated 20-7-1969 of the appellant Government. The judgment of the learned trial Judge as well as of the High Court would show that the said application of Kazi Abdul Kafil was granted by the Chief Conser--vator vide his order dated 30-7-1967. But the Office of the Conservator of Forests, Abbottabad, through which the said order was meant to be com--municated to him, never informed him and consequently he could not resume the rest of the operation which had been stopped on the expiry of the con--tracted period, namely, August 31, 1966 when his security deposit of Rs. 20,000 as well as the timber already felled and paid for by him both were confiscated. Faced with this situation, Kazi Abdul Kafil filed suit against the appellant Government, impleading therein the Chief Conservator of Forests and others as defendants, for declaration as under :- Now the mainstay of his case set up in the plaint by Kazi Abdul Kafil was that in view of the extension of time granted to him by the Chief Conser--vator of Forests, which, however, was not communicated to him by the Zonal Office of the "Conservator of Forests, Abbottabad, the impugned action taken against him by the appellant Government was wholly illegal. In point of fact this allegation of Kazi Abdul Kafil would seem to be the decisive factor in this case, as the rest of the allegations made by him in the plaint have been substantially admitted in the written statement filed by the appellant Government. In the written statement filed by the Provincial Government, however, strangely enough the said allegation was not only not denied but an admission was made in favour of Kazi Abdul Kafil that the felled timber confiscated from him was actually 48,305 a. And not 42,000 a. As claimed by him in the plaint. In this state of the pleadings of the parties, therefore, the learned trial Judge framed in the suit the following issues :--
(1) Whether the plaintiff has a cause of action for the present suit?
(2) Whether the plaintiff is estopped from bringing the present suit?
(3) Whether the suit is properly valued for the purposes of court-fee?
(4) Whether the plaintiff is entitled to the declaration prayed for?
(5) Relief.
4. It seems that when the evidence of the parties on these issues was finally recorded (or substantially recorded) by the learned trial Judge the appellant Government filed before him an application under Order VI, rule 17, C. P. C. Praying therein for the grant of permission to amend its written statement to the effect that no extension of time had ever been sought by Kazi Abdul Kafil or granted to him by the competent authority. There is no mention of the said application in the judgment of the trial Court. But in the judgment of Abdul Hakim, J. (as he then was), it is mentioned that the application in question was rejected by the trial Judge, vide his order dated 12-7-1973.
5. Proceeding on the basis of the original pleadings of the parties, therefore the learned trial Judge, in view of the oral and documentary evidence brought before him, answered issues 1, 2 and 4 in favour of Kazi Abdul Kafil. But on issue No. 4, he held against him but nevertheless decree his suit, directing that he should pay on the decretal amount of Rs. 8,9:1,933.37 the ad valorem court-fee stamp within two months. Being aggrieved of the decree of the trial Court, the appellant Government filed against it first appeal in the High Court but the same was dismissed by the impugned judgment. Leave to appeal against the judgment of the High Court was granted tothe appellant Government by the order of this Court, dated 17-12-1976 as under : "In seeking leave to appeal, learned Additional Advocate-General (N: W. F. P.) submitted that the trial Court was wholly wrong to pass in favour of the respondent a decree for the recovery of Rs.
6. 8,94,933.37 'w' ''~ in a suit for mere declaration without requiring him to amend the plaint. It was also submitted that the contract with the respondent v on behalf of the Provincial Government in the Forest and Agriculture Department and that the purported extension of the period for the exploitation of the forest by the Conservator was wholly unauthorised and not binding upon the Provincial Government. The points urged by learned counsel need examination. Accordingly, we grant leave to appeal."
7. This appeal was initially heard on 28/29-3-1978 and the judgment reserved. The impression then given to us by Mr. Ibne A.I, the learned Additional Advocate-General, appearing for the appellant Government, was was that objection in regard to the frame of the suit of Kazi Abdul Kafil had neither been taken in the High Court nor indeed in the petition for leave to appeal filed in this Court.
8. In view of this impression, therefore, no attention seems to have been paid to this aspect of the case. But while writing the judgment, the record not only revealed the contrary position, but it was also noted that the main reason for which leave to appeal was granted to the appellant Government was to consider whether the trial Court had rightly granted to Kazi Abdul Kafil the money decree in a suit in which he had only prayed for the grant of declaratory decree against the impugned action taken against him. Faced with this revelation, it was decided to issue notices to the parties for re-hearing. But before this could be done, Kazi Abdul Kafil filed Civil Miscellaneous Petition No. 53-R of 1978 praying therein for the amendment of his plaint so that he could be granted by way of consequential relief money decree for Rs. 8,94,933.37 against the appellant Government. On 11-6-1978, this application came up for hearing in the presence of Mufti Muhammad Idrees, the learned counsel for Kazi Abdul Kafil, and Mr. Noor Ahmad Khan, the learned counsel for the appellant Government and the same was allowed with the result that Kazi Abdul Kafil was directed to file an amended plaint within six weeks. Without waiting for the filing of the said amended plaint, however, which seems to be only a formal requirement in order to keep the record straight. I would proceed to dispose of this appeal in the light of the existing plaint read with the various amendments allowed by the said order.
9. Now in the leave granting order what this Court- had observed to examine was:
(1) Whether in a suit for mere declaration, the trial Court could com--petently pass a money decree in favour of Kazi Abdul Kafil, without requiring him to amend his plaint? And
(2) Whether the contract, after the expiry of the initial period, had not been extended in his favour by the competent authority?
10. So far as the first question is concerned, the answer has to be in the negative. It is common knowledge that a suit for the grant of a declaratory decree is filed under section 42 of the Specific Relief Act, 1877. However, one of the mandatory requirements of the said section, is that if in a suit filed thereunder the plaintiff ought to have prayed for the grant of con--sequential relief, but had failed to do so then the suit filed by him would be incompetent. Now by the scrutiny of the plaint filed by Kazi Abdul Kafil in this case, his suit appears to me to be for mere declaration. However, the trial Court as well as the High Court both seem to have understood it to mean as if it also contained a prayer for consequential relief, namely, the grant of money decree against the appellant Government. But in this assumption, with respect, they were mistaken. In para. 8 of the plaint, which is substantially the reproduction of the heading of the plaint already reproduced hereinbefore, what Kazi Abdul Kafil had alleged was, and there I would literally translate his allegations, that he is legally entitled under the contract to continue exploiting the forest; that the defendants had no right to prevent him from doing so; that the order passed against him by the defendants. Directing him to stop the work and confiscating his security deposit of Rs. 20,000 as well as the cut and sawn timber amounting to about 42,000 a., lying in the Neelban Forest, is illegal and that he is in any case entitled to the market value of the said timber as also to the com-- mencement of the rest of the exploitation work under the contract. Now from these allegations it is absolutely clear that all that Kazi Abdul Kafil had sought from the trial Court was the grant of a simple declaratory decree, without any consequential relief. The fact that he had failed to pray for the grant of a money decree and also had valued his suit for the purposes of A court-fee at Rs. 200 would clearly support the said conclusion beyond the shadow of any doubt. Therefore, had the matter rested there, the inevitable conclusion would be that his suit being incompetent would warrant dismissal. But in view of the fact that his amendment application has already been allowed by this Court, his plaint would stand accordingly amended and consequently no objection can be taken to the competency of his suit-especially when in obedience to the order of the trial Court he had made up the deficiency of the court-fee stamp on ad valorem basis.
11. As regards the second question, mentioned in the leave granting order, the trial Court as well as the High Court both have taken the view that the contracted period had been extended in favour of Kazi Abdul Kafil by the competent authority, namely, the Chief Conservator of Forests. Now in the contract of the parties herein, there is no mention as to who would be the competent authority. But in that behalf the letter of the Chief Conservator of Forests (Exh. P. 2/22), dated July 3, 1967, addressed to the Conservator of Forests, Abbotabad Circle, Abbottabad, of which he had endorsed a copy to the Secretary of the appellant Government, would seem to be significant. On the first page of the said letter what the Chief Conservator has said is that "the revised sanction is in supersession of the sanction accorded by the Provincial Government vide in their letter No. SOFT IV (AGRI.) VI(B)/66/64, dated 1-4-1967. It has been accorded in compliance with Government decision and the directive as contained in their letter No. SOFT. IV (AGR) VI/B/66/67, dated 20-7-1967 (copy enclosed)".
12. Now by the unambiguous language employed in this passage, it is clear that the Chief Conservator had granted to Kazi Abdul Kafil the extension of time not on his own initiative, but on the basis of the policy decision of the Government. In other words he had acted only as the communicating agency and not as the competent authority in his own right. Furthermore in the same very letter (Exh. P. 2/22) would be found, another passage which would go a long way to support the said conclusion. Hat passage reads as under "The purchaser of trees from Nilban Guzara had availed of 3 months period against the 'irregular sanction granted by the Conservator of Forests as reported in this office No. 24/GR, dated 3-7-1967.
13. The extension was granted by the Conservator of Forests, in the period of the contractor before reduction in the value and the accord of the revised sanction as above. As the value of the contract at the time the extension was granted by the Conservator of Forests, without authority, fell within the competency of the Government it is requested that as competent authority the Provincial Government may decide the amount of extension fee to be charged to the contractor in the light of the recommendation contained in this office letter No. 24/GR. Dated 3-7-1967.
14. It is requested that under order of the Government about the levy of extension fee for the extension granted by the Conservator of Forests may kindly be accorded at the earliest so that the recovery may be effected from the purchaser before the period of further extension expires."
15. It would thus be seen that the Chief Conservator had clearly brought it to the notice of the appellant Government that before the extension in dispute was granted to Kazi Abdul Kafil, he had already availed of an earlier extension of three months at the behest of the Conservator of Forests, Abbottabad, which in his opinion, however, was illegal, with that extension the parties herein are not in dispute. But even so it would seem to be important as the Chief Conservator, having opined the same to be illegal, nonetheless passed on the basis of the said policy decision of the appellant Government, a conscious order extending in favour of Kazi Abdul Kafil the period of contract. Now by using the words " before the period 'C of further extension expired" he had faithfully placed before the appellant Government all the necessary facts relating to the extension in dispute. And yet no exception was taken to his said action. From this it would follow that the said extension was granted to Kazi Abdul Kafil essentially by the appellant Government, which in the nature of things, was evidently the competent authority.
16. Assuming for the sake of argument, however, that the extension in question had been granted by the Chief Conservator on his own initiative, even than it would not be open to objection. In this connection reference may first be made to clause 19(d) of the parties' contract which runs as under :- "(d) That the purchaser must remove the timber obtained under this agreement beyond the limits of Nilban Guzara before 30-6-66. In case the purchaser fail to complete operations within the stipulated period, his request for the grant of extension in the working period will only be considered by the competent authority subject to payment by him of any sum not exceeding one per cent. Of the total value of the contract per month or part thereof as extension fee. In case the purchaser do not apply for extension or his request is not granted, the timber not so removed within the stipulated or the extended period if any shall become the property of the Government and all the rights of the purchaser shall be extinguished."
17. Now the concurrent finding of the trial Court and the High Court both is that Kazi Abdul Kafil bad indeed made an application for the extension of time, and the same had been granted by the Chief Conservator of Forests.
18. To this finding the learned Additional Advocate-General has not taken any exception. His only objection, however, is that the Chief Conservator was not the competent authority in the matter.
19. But with respect the objection taken by him would seem to be belated as well as after thought. In para. 6 of the written statement filed by the appellant Government, it was concede that on the expiry of the contracted period (on 31-5-1966) the contract was p extended up to 31-8-1967. Now this extension had been ordered by the Chief Conservator, but in the written statement no objection was taken by the Government that he was not the competent authority. I am, therefore, in respectful agreement with the view taken by the High Court that the Chief Conservator was indeed the competent authority for extending the period of contract-especially when the contract itself is wholly silent on the point.
20. The learned additional Advocate-General, however, contended that the said admission made in the written statement was factually incorrect; that in order to get rid of the same, the appellant Government had, therefore, filed in the trial Court an application under Order VI, rule 17, C. P. C.
21. Praying therein for the amendment of the written statement, but the same was wrong fully rejected. I am afraid there is no force in this contention. It is well/ settled that admissions made in a written statement have altogether different legal significance than admissions generally. In this respect reference may be made to Order VIII, rule 5, C. P. C. Which runs as under :- "5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
22. Now the trial Court and the High Court both have, essentially in the exercise of their discretionary jurisdiction, refused permission to the appellant Government to amend its written statement so as to enable it to withdraw 2b said admission. On my part, therefore, I see no reason to take a different view, as the learned Additional Advocate-General has been unable to show that the view taken by the Courts below was either perverse or unreasonable. In actual fact the view taken by the said two Courts would seem to be the only view which, in the light of all the facts and circumstances of this case, could be taken, because (l) there is nothing in the parties' contract to show as to who would be the competent authority, and (2) in the written statement filed by it, the appellant Government had not denied that the Chief Conservator was the competent authority.
23. Having disposed of the two questions, upon. Which leave to appeal was granted to the appellant Government, there remains another legal question of some public importance to which I am going to address myself presently. Now in the plaint filed by Kazi Abdul Kafil he had claimed to be entitled to 42,000 oft. Of cut and sawn timber. But in the written statement filed on behalf of the appellant Government he was said to be entitled to 48,305 oft. On the basis of the said admission, therefore, the trial Court as well as the High Court both have decreed the suit of Kazi Abdul Kafil for the value of 48,305 a. Of timber; although he had neither amended his plaint accordingly, nor indeed had he made any application in that behalf. The view taken by the High Court, however, was that under Order VII, rule 7, C. P. C. Kazi Abdul Kafil could be granted decree for the value of 48,305 oft. Of timber. But in order to appreciate the said conclusion it would be necessary to reproduce Order VII, rule 7, C. P. C., which runs as under "7. Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
24. Now for the proper understanding of this rule, reference to Order II, rule 2, C. P. C. In which it is said "where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished" would seem to be necessary. By reading these provisions together, they seem to impose upon a plaintiff the uncompromisable obligation to include in the suit filed by him the whole of his claim to which he feels he is entitled and to that end pray for the specific relief which he claims either simply or in the alternative, leaving of course the general or other relief which may always be given to him by the Court. The expression "general or other relief" has been judicially construed to mean the grant of mesne profits: Raghu Mahton v. Bullak and others (AIR 1953 Pat. 289), the award of interest on the sum found due to the plaintiff Rup Ram v. Harphul (AIR 1921 Lah. 125), or a decree for accounts in a suit for the recovery of money Sheo Dutt and others v. Pushi Ram and others (AIR 1947 All. 229). However, Where a plaintiff claims a larger relief than the one to which he is found entitled he cannot It be granted the same without first amending his plaint: Putta Kannayya Chetti and others (AIR 1918 Mad. 998 (2)) and Fazal Din and others v. Milkha Singh (AIR 1933 Lah. 193).
25. The admitted position in this case is that whereas in the plaint filed by him, Kazi Abdul Kafil had claimed the value of 42,000 a. Of timber, but his suit was decreed for the value of 48,305 a. Without getting his plaint accord--ingly amended. To that extent, therefore, reliance by the High Court on Order VII, rule 7, C. P. C. Was erroneous, and the decree passed by it illegal.
26. The case of Khisro Nawaz v. Khanimulla and others (PLD 1962 Pesh. 124), on which the learned Judges in the High Court have relied, in support of the decree awarded to Kazi Abdul Kafil, is distinguishable. In that case the plaintiff had filed suit against the defendant for possession of the suit house on the basis of title. The trial Court decreed his suit. But in the appeal filed by the defendant therein, the Additional District Judge dismissed the suit of the plaintiff on the ground, amongst others, that his suit was incompetent, because of his finding that he was the owner of the site only whereas in the plaint filed by him he had asked for the possession of the site as well as the superstructure of the suit house. It would thus be seen that in that case the plaintiff was found by the learned Additional District Judge to be entitled to a lesser relief than the one claimed by him in the suit, and so he was clearly in error to dismiss his suit as incompetent. In the High Court, the said finding of the learned Additional District Judge was found to be factually right. But nevertheless the suit of the plaintiff decreed in toto, subject of course to his paying to the defendant Rs. 3,221 as the cost of the house-structure which he was found to have raised from his own resources.
27. Now coming to the facts of the present case, the amendment application of Kazi Abdul Kafil was no doubt allowed by this Court by order dated 11-6-1978 with the result that his plaint now would stand amended with effect from the date on which he had filed the same in the Court of Senior Civil Judge, Abbottabad. However, the finding recorded in the said order, with the details of which I am not concerned here, was that he is allowed to amend his plaint with a view to enabling him to pray for the grant of consequential relief, namely, the money decree for 42,000 a. Of timber, respecting which he had originally prayed for the grant of only declaratory decree. In this view, therefore, the decree awarded to him by the learned trial Judge and confirmed by the High Court for the value of 48,305 a. Of timber, amounting to Rs. 8,94,933.37, is not sustainable, for in that amount is also included, at the rate of Rs. 20 per a., which according to the learned trial Judge was the market value of the timber, the value of 6,305 a. Of timber amounting to Rs. 1,26,100. To this extent, therefore, this appeal is allowed and consequently the suit of Kazi Abdul Kafil, after deduct--ing from him the sum of Rs. 1,26,100, which is the price of 6,305 a. Of timber, is decreed for the value of 42,000 a. Of timber amounting to Rs. 7,68,833.37 only. In view of the partial success of the parties herein, however, they would bear their own costs incurred by them in this Court.
28. ANWAR UL HAQ, J.-I agree.
29. MUHAMMAD HALEEM, J.-I agree.
30. S. A. H.
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