GOVERNMENT OF SIND Versus AMIR MUHAMMAD
1. By this common judgment, I intend to dispose of the above two appeals, which are directed against the common judgment/decree dated 23‑12‑1971 passed by the learned 1st Senior Civil Judge, Hyderabad in First Class Suit No.12 of 1984 and First Class Suit No.88 of 1965, decreeing the aforesaid Suit No.88 of 1965 of the deceased respondent Amir Muhammad for a sum of Rs. 1,75,000/ and also decreeing the deceased Respondent's above Suit No.12 of 1984 restraining the appellant from recovering the alleged dues amounting to Rs.1,77,748.83.
2. The brief facts leading to the filing of the above appeals are that the deceased respondent had taken over a contract of Kherbani forest, in an open auction held at Hyderabad on 19‑1‑1963 for a sum of Rs.2,11,000/‑ for carrying out Thinning Operations which meant cutting of such trees which had either fallen or were about to fall or had become bent in respect of the forest compartments bearing Nos.13, 15, 16, 17, 17‑A, 19, 19‑A, 19‑B and 19‑C under the Contract dated 1‑2‑1963, Ex.C‑42 hereinafter referred to as the Contract. The main terms of the above contract were as follows:‑‑
(i) The period of working originally was from 1‑2‑1963 to 30‑6‑1963 but it was extended at the initial stage upto December, 1963.‑ ‑
(ii) The deceased respondent was to deposit Rs.10,000 as cash security.
(iii) The deceased respondent was to give solvent surety of the entire amount of Rs.2,11,000.
2. The above amount was to be paid in the following four instalments:‑
(a) Ist instalment of Rs.52,750 on 15‑5‑1963.
(b) 2nd instalment of Rs.52,750 on 15‑7‑1963.
(c) 3rd instalment of Rs.52,750 on 15‑9‑1963.
(d) 4th instalment of Rs.52,750 on 15‑12‑1963.
3. It was also‑provided that in case of default of payment of any instalment, the deceased respondent was liable to pay 6‑1/4% compound interest.
4. It appears that the deceased respondent deposited a sum of Rs.12,000 instead of Rs.10,000. It is the case of the deceased that he started the work under the above contract on 1‑2‑1963 and continued upto 10‑3‑1963 when all of a sudden without any rhyme or reason, he was ordered to stop his work by the appellants Nos.2 and 3/defendants Nos.2 and 3 and his labourers and other staff were driven away from the staff in violation of the terms and conditions of the contract. It is also the case of the deceased respondent that he had engaged 200 labourers from Punjab for cutting the said trees and had paid advances to them to the tune of Rs.50,000. It is also the case of the deceased respondent that the work remained stopped for a period of 3 months with the result that he has suffered heavy and in calculated loss of capital invested by him. It is also the case of the deceased respondent that in breach of the Contract the appellants did not affirm or ratify the Contract and that after his repeated protests and reminders the appellants granted permission to him to restart the work on new conditions in super session of the previous contract namely:‑
(a) The appellant No.1 employees used to send a report about the timber or firewood accumulated in the plaintiff's depot, whose approximate price was estimated and the plaintiff was ordered to deposit the amount .
(b) The deceased respondent was given a pass‑book on deposit of the estimated amount and he was allowed to remove the material.
5. It was further averred by the deceased respondent that he deposited Rs.1,25;000/‑ in addition to Rs.12,000/‑ and thus a total sum of Rs.1,37,500/‑. It was further averred by deceased respondent that during the above working the appellant No.2's employees, agents and servants began to harass the deceased respondent and his men, which inter alia, included as follows:
(a) The plaintiff's camels were not permitted to enter into forest for transporting the timber from the forest to plaintiff's depot.
(b) The defendants had been obstructing and creating hindrances in manufacture of charcoal.
(c) The plaintiff was not granted necessary permits and passes to facilitate transport of timber from the Forest to the‑market.
(d) The plaintiff was also harassed by cancelling the pass‑books and permits without any rhyme or reason.
(e) The plaintiff was directed to establish depot, inside the forest even though the permission to establish the depot outside the forest near the bund was already sanctioned and the depot was in existence there."
6. It was further averred by the deceased respondent that he protested against the above illegal acts and the breaches of contract but eventually on 16‑12‑1963, he and his men were completely driven out from the forest and were not allowed to remove various items lying at the depot and forest but were taken by the department and their men. The deceased respondent was served by Appellant No.2 with a notice of demand for a sum of Rs.1,77,748.83, namely,
7. 1
8. Balance of the value of contract.
9. Rs.86,000.00
10. 2
11. Value of total reserved trees cut.
12. Rs.18,098.83
13. 3
14. Fine for cutting the total Reserve Trees
15. Rs.73,650.00
16. Total:
17. Rs. 1,77,748.83
18. However, it may be observed that prior to this, the deceased respondent was served with various letters referred to in para.18 of the Suit No.12 of 1964, demanding payment of fine amount for allegedly cutting the reserved trees, totalling a sum of Rs.1,02,809.83, which was reduced to above sum of Rs.73,650.00.
19. The deceased respondent filed aforesaid Suit No.12 of 1964 on or about 27‑1‑1964 for declared on that the demand of the above sum of Rs.1,77,748.83 made by appellants 1 and 2 was illegal and without jurisdiction and for an injunction restraining the appellants from taking coercive measures for the recovery of the above amount.
20. After that he filed the above second suit, namely Suit No.88 of 1965 on 12‑3‑1965 for the recovery of Rs.2,00,000/‑ on the basis of the averments that he was entitled to recover the following amounts on account of breaches on the part of the appellants:
21. I. Loss of material
(a) Charcoal
22. 10,000 mds. Price at Rs.6 f 8 per md. valued at
23. Rs.65.000
(b) Firewood
24. 25,000 mds. valued at
25. Rs.50,000
(c) Timber
26. 10,000 mds. price valued at
27. Rs.40,000
28. Rs.1,55,000
29. II.
(a) Loss due to advance of labourers
30. Rs.50,000
(b) Loss due to defendants contract entered into by self with other customers.
31. Rs.25,000
(c) Loss due to defendants
32. Rs.25,000
-------------
33. Rs.1,00,000
34. It may be observed that the total amount comes to Rs.2,55,000/‑ but the deceased respondent reduced the amount to Rs.1,00,000.
35. The above two suits were resisted by the appellants. Inter alia it was averred that the original contract period was upto 30‑6‑1963 but later on the period was extended upto 31‑12‑1963, was also averred that originally the value of Contract was to be paid in four instalments of Rs.52,750/‑ each but on account of the activities of some dacoits in the area and other orders of the District Authorities regarding law and order, the plaintiff was given facilities of payment of first, second and fourth instalments on 15‑5‑1963, 15‑7‑1963 and 15‑12‑1963. The third instalment was paid on 15‑9‑1963. It was also averred that after the expiry of the contract period the deceased respondent was not entitled to remove any material either cut or fallen from roots and charcoal without first obtaining extension and that as per clause 31 of the Schedule to the Contract the material not removed within the contract period was to become the property of the Government. It was also averred that the appellants were not aware if the deceased respondent imported labourers from Punjab and advanced them Rs.50,000. It was also averred that there were plenty of labourers available in the area. It was further averred that out of a total consideration the deceased respondent paid a sum of Rs.1,25,000/‑ in addition to the deposit amount of Rs.12,000/‑ thus leaving a balance of Rs.86,000/‑. It was further submitted that the deceased respondent was liable to pay a sum of Rs.75,650/‑ being the amount of fine imposed for illegally cutting the reserved trees and Rs.21,046.88 being the estimated price of the reserved trees illegally cut by the deceased respondent. It was denied that the deceased respondent was entitled to the above sum of Rs.2,00,000/‑ or any other sum.
36. It may be observed that a similar written statement was filed earlier in the first suit.
37. On the basis of the pleadings of the parties the following issues were framed in Suit No.12 of 1964, New No.86 of 1964.
38. "(1) Is the plaintiff not liable to pay the amount of Rs.1,82,696.88 or any amount to the defendants?
(2) Are the defendants responsible for the breach of the contract as alleged by the plaintiff? If so, can some judgment be made for the claim of the defendants?
(3) Did the plaintiff cut reserved trees? If so, are they liable for it and to what extent?
(4) Was the penalty of Rs.73,000 or any amount justified?
(5) Is the plaintiff liable to pay Rs.86,000/‑ or any amount as dues of the contract?
(6) What should the decree be?
39. Whereas the following issues were framed in Suit No.88 of 1965.
40. "(1) Whether this suit is maintainable because of the pending of two other suits on the same subject‑matter?
(2) What were the terms of contract between the parties and which of the parties are responsible for breach of that contract?
(3) Is the plaintiff entitled to any damages, if so for what amount?
(4) Relief?"
41. Both the suits were tried together. The deceased respondent in support of the above two suits examined himself on 3‑9‑1963 on commission and produced a number of documents; whereas in respect of the second suit he was also examined on commission. He also examined P.W.2 Habibur Rehman Ex.151 P.W.3 Ataur Rehman Ex.158, P.W.4 Ghulam Chisti Ex.159, P.W.5 Shamsuddin Ex.160 and P.W.6 Muhammad Ali Ex.161.
42. The appellants did not examine any witness in rebuttal nor cross- examined above P.Ws. Shamsuddin and Muhammad Ali, who were the material witnesses.
43. After hearing the parties the learned Senior Civil Judge, Hyderabad, passed the above judgment/decree. The appellants being aggrieved by the above judgment/decree have filed the above appeals.
44. The appellants being aggrieved by the above judgment/decree have filed the above two First Appeals.
3. In support of the above appeals, Mr. G. R. Warisi, learned counsel for the appellants has urged as follows:
(i) That the appellants were entitled to recover their dues as arrears of land revenue and, therefore, no decree could have been passed to restrain them from recovering the above dues.
(ii) That the deceased respondent had not proved his case for a decree of Rs.1,75,000/‑, as there was no breach on the part of the appellants but the breach was on the part of the deceased respondent.
45. On the other hand Mr. Afzal Ahmed one of the legal heirs and learned counsel for the other legal heirs of the deceased respondent has contended as follows:‑
(i) That as the deceased respondent was not liable to pay any amount to the appellants, the learned trial Court was justified in decreeing the suit for restraining them from recovering any amount as arrears of land revenue.
(ii) That there was substantial evidence on record to prove the commission of the breach on the part of the appellants and, therefore, the learned trial Court was justified in decreeing the deceased respondent's aforesaid suit to the extent of Rs.1,75,000/‑.
4. Adverting to the first submission of the learned counsel for the parties, it may be observed that the break up of the amount of impugned demand notice of appellant No.2, i.e., Rs.1,77,748.83, which was impugned in the aforesaid suit No.12 of 1964, has been reproduced hereinabove in para.2, which indicates that a sum of Rs.86,000/‑ was claimed as the balance of the Contract consideration, Rs.18,098.83 as the value of the reserved trees allegedly out by the deceased respondent and Rs.73,650/‑ being the amount of fine imposed of allegedly illegally cutting the trees. Mr. C. R. Warsi, learned counsel for the appellants has not been able to cite any provisions of law under which the appellants were authorised to impose the above fine. In this view of the matter, it cannot be said that Rs.73,650/‑ was an amount due recoverable as the arrears of land revenue.
46. As regards the second item namely Rs.18,098.83, it may be pointed out that there seems to be controversy as to the amount. According to Mr. Warsi factually a sum of Rs.21,046.83 was due and payable by the deceased respondent as the value of the reserved trees illegally cut and not Rs.18,098.83. Be that as it may, in this regard it may be stated that there are a number of documents on record indicating that the appellants had been making allegations against the deceased respondent that his agents/employees were illegally cutting the reserved trees. Reference may be made inter alia to Divisional Forest Officer's (hereinafter referred to as the D.F.O.) letter dated 6‑7‑1963 which indicates that a sum of Rs.2,502 at Rs.350/‑ per 1,000 ft. was demanded being the price of reserved trees illegally cut and Rs.850/‑ being the fine amount at Rs.10/‑ per tree were demanded, Ex. C.49 D.F.O's letter dated 2‑12‑1963 alleging therein, that the deceased respondent had cut 390 reserved trees illegally, Ex.C‑50 D.F.O's letter dated 7‑11‑1964 demanding a sum of Rs.2,948.05 being the value of the trees and Rs.2,000 being the amount of fine, Ex.C.53 D.F.O's letter dated 14‑12‑1963 demanding Rs.12,648.78 as the value of the material and Rs.77,800 being the amount of the fine at Rs.200 per tree in addition to the previous demand and thus a total sum of Rs.93,800.78 was demanded.
47. There are a number of documents from the side of the deceased respondent in which he has denied the factum of the cutting of reserved trees illegally. However, in one of the letters deceased respondent's son Wali Muhammad, i.e., in the letter dated 11‑6‑1963. Ex.C‑60, admitted the factum of cutting 30 trees which were of the thickness of 2 feet to 3 feet and he was willing to pay for the same. (All the above Exs. referred to hereinabove are in the paper book of First Appeal No.35 of 1975). It may be pointed out that said Wali Muhammad was appointed as the agent by the deceased respondent for the above contract by his letter dated 10‑4‑1963. 1 may observe that the appellants have not examined any witness to prove the contents of the various letters and to prove the factum that the trees were factually cut by the deceased respondent. In this view of the matter, it can be concluded that barring the above admission on the part of the deceased respondent's son the appellants have failed to prove the above item, and consequently the factum that the above sum of Rs.18,098.83 or the increased amount namely, Rs.21,046.83 was due and payable in respect of the value of the reserved trees illegally cut. It may further be observed that at the most the appellants could have been entitled to the value of the trees admitted by the deceased respondent's son under above Ex.C.60 but no evidence has been led in this behalf. In any case, the demand for the above sum of Rs.18,098.83 was not legal and the same could not have been recovered as the dues.
48. As regards the balance amount of the contract consideration, namely, Rs.86,000/‑ it may be observed that it is an admitted position that the deceased respondent under the contract was to pay a sum of Rs.2,11,000/‑. As per averments in the plaint as well as per his deposition he had paid Rs.1,25;000/ altogether and had deposited a sum of Rs.12,000/‑ as a security. If we adjust the above sum of Rs.1,25,000/‑ the balance which remained payable was the above sum of Rs.86,000/‑ apart from the claim for the refund of the. above security deposit amount. I will deal with the question, whether the appellants could have recovered the above amount from the deceased respondent here in below, more in detail, at the above amount was due and payable by the deceased respondent under the Contract. It can, therefore, be urged that the above amount, could have been recovered as the arrears of land revenue. However, the contention of the deceased respondent was that since the appellants had committed the breach of the contract, they were not entitled to claim the above amount but on the contrary they were liable to pay the damages.
49. I am inclined to hold that 'it is not necessary to dilate upon the above question, whether the appellants could have resorted to the provisions of the Land Revenue Act for the recovery of the above amount, for tile reason that the view which I am inclined to take does not require any detailed discussions on the above aspect.
5. This leads us to the question, whether the deceased respondent was entitled to recover any amount out of the suit claim. In this regard, it may be observed that it seems to be an admitted position that immediately after the start of the or under the contract, the same was stopped by the police as well as by the appellants on account of the activities of dacoits in the forest. In one of the letters the period of the stoppage given by the deceased respondent was three months but in his letter dated 15‑11‑1963, whereby he sought the extension for the payment of 4th instalment and also extension of the period of contract, he has given the above period of stoppage as 1‑1/2 months. (The above letter is at page 52 of the First Appeal No.25 of 1975). Another admitted position seems to be that the local police directed the deceased respondent through the S.H.O's Sekhat Police Station, which direction was repeated by D.F.O's letter dated 6‑3‑1963 addressed to the deceased respondent (at page 70 of the paper book of First Appeal No.25 of 1975) that the deceased respondent (1) should have at least 10 armed labourers preferably Ex.Military men who could handle the weapons properly, (2) the above arms would be registered at the police station and the same would be presented at the police station for checking every month, (3) that all the licence‑holders must be desirable persons whose character would be verified and (4) that all the labourers should stay together in the forest and should stay out of the forest at night.
50. It also seems to be an admitted position that instead of receiving the payment as per terms of the Contract in instalments. The pass book system was introduced under which the deceased respondent was allowed to remove the material upon assessment of the value of the same and upon its payment through the pass book. There are some documents on record indicating that either the pass book was not issued in time or it was cancelled resulting into stoppage of the removal of the material. In this regard, reference may lie made to deceased respondent's letter dated 8‑11‑1963 addressed to Chief Conservator of Forest in which reference has been made to the cancellation of the pass books several times by the D.F.O. Mr. Siddiqui and the factum that considerable material was lying which could not be removed because of the non‑issuing of any pass book, another letter dated 12‑11‑1963 from the deceased respondent to the Chief Conservator of Forest Hyderabad again complaining about the cancellation of the pass book from time to time and non‑issuance of the same. The deceased respondent's Advocate's letter dated 14‑11‑1963 was addressed to D.F.O. in which also inter alia a demand was made to issue the pass book. (The above letters are at pages 56, 58 and 48 respectively of the paper book of First Appeal No.25 of 1975). After that it scans that the deceased respondent's labourers were driven out of the forest by the department staff. Thereupon the deceased respondent lodged a complaint with the Station House officer Sekhat Police Station by the letter dated 13‑12‑1963. Reference may also be made to the deceased respondent's letter undated addressed to the Chief Conservator of Forest stating therein, that the various department staff Jamadar Gulzar drove away all his labourers and stopped cutting of various trees from 15‑12‑1963 and charcoal and fuel roots worth Rs.75,000/‑. This was followed by the exchange of legal notices and replies. It may also be mentioned that the deceased respondent filed apart from the above two suits an earlier suit namely Suit No.144 of 1964 in the Court of Senior Civil Judge at Hyderabad in which he had obtained stay order restraining the; appellants' staff from interfering with its working, which remained operative from 6‑11‑1963 to 25‑12‑1963. In the above case contempt application was also filed against the D.F.O and his subordinates. It is not clear from the record what had happened to the above suit. It may be observed that though in Suit No.8 of 1965, Issue No.1 related to the non‑maintainability of the third suit, in view of pendency of two earlier suits, but the same was not pressed by the learned counsel for the parties, which indicates that the aforesaid earlier first suit might have been withdrawn.
51. The deceased respondent in his aforesaid suit No.88 of 1965 tiled on 12‑3‑1965 had claimed Rs.1,55,000/‑ being the cost of the material left at the site of work and a sum of Rs.1,00,000/‑ being loss, total of which comes to Rs.2,55,000/‑ but he prayed for a decree of Rs.2,00,000/‑ only the detail of which is given hereinabove m para.2.
6. In support of the above claim the deceased respondent examined himself on commission, which examination was concluded on 13‑3‑1969 by the Commissioner, Hassan Ahmed Shah, Advocate and also examined the witnesses referred to hereinabove, namely P.W.2 Habibur Rehman Ex.151, a commission agent of wood and coal at Hyderabad, P.W.3 Altafur Rehman Ex.158 a business man in fuelwood and timber, P.W.4 Ghulam Chisti Ex.159, who was running fuel wood business at Hyderabad. The above three witnesses have deposed that they had entered into contract for purchasing various quantities of the fuel wood, timber, etc., and that the deceased respondent was unable to honour his commitment. The above three witnesses also purported to prove that quantities of the various material were found by them in the month of December, 1963 in the depot of the deceased respondent which he was not allowed to remove.
52. According to P.W. Habibur Rehman he had seen about 10,000 maunds of timber, 25,000 to 26,000 maunds of fuelwood and 5,000 to 7,000 maunds of coal at the depot situated at Hala Road, whereas according to P.W.3 Ataur Rehman he saw 25,000 maunds of fuelwood, 10,000 maunds of timber and about 8,000 maunds of coal. As per P.W.4 Ghulam Chisti he saw 25,000 maunds of fuelwood, including roots of trees about 10,000 maunds of timber and 8,000 maunds of coal. In addition to the above witnesses the deceased respondent examined P.W.5 Shamsuddin Ex.160, who was said to be a Jamadar supplying labourers and was engaged by the deceased. According to him a total sum of Rs.50,000/‑ was paid to the labourers numbering 200 and because of the stoppage of the work for 1‑1/4 months the above labour force remained idle and then they went to Punjab. P.W.6 Muhammad Ali, Accountant of the deceased respondent. He apart from reiterating the factum of employment of 200 labourers produced account book Ex.69, Cash Book Ex.67 Stock Register Ext.66 which contain the entries relating, to above items. According to him the advance paid to the labourers to the tune of Rs.53,000 is reflected inter alia in the ledger books, whereas the quantities of the various items referred to hereinabove are reflected in the stock register. It may be pointed out that the above two witnesses were not even cross‑examined by the appellants nor any application was apparently made for recalling them for cross- examination. Their statements remained unchallenged. However, the deceased respondent in his cross‑examination of 13‑3‑1969 at page 90 of the paper book of First Appeal No.25 of 1975 has admitted the fact that the above Exs.66, 67 and 60, i.e., ledger, stock register and cash books were not produced before the income tax authorities. The question therefore, arises whether the version contained in the above account books is to be accepted or the learned Civil Judge should have assessed the quantity and the amount on his own. The above three witnesses namely P.Ws. Habibur Rehman, Altafur Rehman and Ghulam Chisti attempted to give the quantities of various materials lying at the depot on the basis of their impression on visiting the site without any further basis. I am not impressed by their evidence and it is highly improbable that any one could on visual inspection assess the weight of the various items which were allegedly lying at the depot. It may again be pointed out that the deceased respondent in his aforesaid letter undated addressed to the Chief Conservator of Forest at page 66 of the Paper Book of First Appeal No.25 of 1975 had given the value of the material as Rs.75,000/‑ and not Rs.1,55,000/‑ as illegally mentioned in the stock register. I would, therefore, reduce the above amount of Rs.1,55,000/‑ to Rs.75,000/‑
7. As regards the amount of loss, it may be observed that the first item is loss due to advance to labourers Rs.50,000/‑. Though there is evidence on the above point; referred to hereinabove, inter alia of P.W.5 Shamsuddin and P.W.6 Muhammad Ali, the above amount seems to be on the high side. There is no detail as to the persons to whom the above payment was made. However the factum that the work was stopped for 1‑1/4 months to 1‑1/2 months and, therefore, the deceased respondent must have suffered loss, I would, therefore, assess the amount at Rs.25,000/‑.
53. The second item is Rs.25,000/‑ due to breach of contract entered into by the deceased respondent with other customers. There is evidence of the above three witnesses, Habibur Rehman, Altafur Rehman and Shamsuddin, but in my view their testimony does not prove the above amount of damages. There is no break up as to how the above amount of Rs.25,000 has been worked out. I would, therefore, disallow the same. Similarly, there is no detail of the alleged loss of Rs.25,000/‑ allegedly suffered by the deceased respondent. I would, therefore, disallow the same.
8. In view of the above discussion, the deceased respondent was entitled to a decree of the above two items namely Rs.75,000/‑ being the vaiue of the material and Rs.25,000/‑ being the loss on account of stoppage of work, totalling Rs.1,00,000/‑.
9. Reverting back to the question whether the appellants were entitled to receive the balance contract consideration from the deceased respondent, namely, Rs.86,000/‑ it may be observed that Mr. Muhammad Afral has vehemently urged that the original contract stood extinguished and that there was fresh arrangement. Apart from the fact that the above contention is contrary to the pleadings of the parties and, therefore, there was no issue on the above point, it is factually incorrect. He was unable to point out any new contract, which was entered into between the deceased respondent and the appellants after the super session of the Contract in question. There is no doubt that there was fresh arrangement as to the removal of the material from the site namely, on the basis of the pass book Ex.C‑70(1) to C‑70 (13) but the above facility was in fact for the benefit of the deceased respondent as there are letters on record indicating that he was unable to pay certain instalments on due dates. In my view if the deceased respondent wanted to recover certain amounts under the contract, he was bound to pay the full amount of consideration under the Contract. The above Contract could not have been relied upon by the deceased respondent only for the purpose of making certain claim against the appellants but he was obliged to fulfil the obligations on his part under the terms of the contract. In this view of the matter the appellants were entitled to claim the above sum of Rs.86,000/‑ being the balance amount minus Rs.12,000/ being the security deposit which was lying with the appellants. Thus they were entitled to claim Rs.74,000/‑.
54. However, then‑ it was contended by Mr. Muhammad Afzal that the appellants have not claimed any set off. Technically the above submission seems to be correct. But he has overlooked the fact that the aforesaid Suit No.88 of 1965 was filed by the deceased respondent for the recovery of damages and, therefore, the Court while computing the amount of damages, can take into consideration the factum whether any amount was due and payable by the deceased respondent to the appellants in order to eliminate further litigation between the parties, particularly in view of the fact that issue No.5, referred to hereinabove in para.2 in Suit No.12 of 1964 was on the above point. Additionally the deceased respondent under the aforesaid suit was seeking an injunction for restraining the appellants from recovering inter alia the above amount as the arrears of land revenue, which relief cannot be granted if the above sum of Rs.74,000/‑ is not adjusted.
55. I would, therefore, give adjustment of the sum of Rs.74,000/‑ referred to hereinabove against the above decrial amount of Rs.1,00,000/. Thus the deceased respondent shall be entitled to a decree of Rs.26,000/‑ and accordingly I modify the decree to the above extent.
10. Before parting with the above discussions, I may observe that the legal representatives of the deceased respondent filed Miscellaneous Application No.1293 of 1987 under Order VI, Rule 17, C.P.C. on 7‑12‑1987 in First Appeal No.25 of 1975 for amending para.23 of the plaint of aforesaid Suit No.88 of 1965 adding the prayer of interest at the rate of 14% on the principal amount from the date of suit until final realisation, apparently, the above application has been filed after the expiry of about 22 years from the date of filing of the suit. The same has been opposed by the learned counsel for the appellants, Mr. G.R. Warsi on the ground that factually under the terms of the contract the appellants were entitled to recover interest on the above balance amount at the rate of 6‑1/4% which comes to over Rs.2,00,000/‑. In my view, it will be just and proper to allow the interest on the above balance amount of Rs.26,000/‑ from‑the date of the decree i.e. from 23‑12‑1978 till payment at the rate of 8% per annum.
56. There will be no order as to costs.
57. A.A./G‑66/K Order accordingly.