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‑‑ S. 74‑Security, forfeiture of‑Government failing to point out anything in agreement empowering it to forfeit security money in spite of fact that no water supplied in channel and respondents could not enjoy lease which resulted in loss of amount spent by them on development of land in question‑In absence of loss caused to Government on account of rescission of lease by respondents without enjoying land due to default on part of Government, no error of law or fact, held, available justifying interference in second appeal, in circumstances.

Province of West Pakistan v. Messrs Mistri Patel & Co. P L D 1969 S C 80 fol.

Muhammad Shafi and another v. Sher Ali 1970 S C M R 510 and Khairati and others v. Taza Din and others 1968 S C M R 1027 ref.

‑‑ S. 100‑Second appeal‑No error of law can be pointed out in findings of facts concurrently arrived at by two Courts below. [Second appeal].

Abdul Sattar Shaikh, Addl. A.G. for Appellant.

S. M. Abbas for Respondent.

Date of hearing:16th May, 1982.

These are two second appeals Government of West Pakistan v. Fazle Haq II‑A No. 201 of 1970 and Government of West Pakistan v. Abdul Rehman II‑A No. 202 of 1970 have been filed against the common judg ment passed by the learned District Judge, Hyderabad, in Civil Appeal No. 87/1969 and Civil Appeal No. 88/1969 on 14th October, 1969 whereby the appeals of the Government were dismissed and the decrees passed in Suit No. 117 of 1964 and Suit No. 118 of 1964 by the Civil Judge, Hyderabad were upheld.

Since these two appeals have been filed against the common judgments/ decrees and the questions of facts and law are common, the same by the consent of the learned Advocates for the parties were heard together and both the appeals are disposed of by this judgment.

1. Briefly the facts of the case are that Abdul Rehman and Fazle Haq, the respondents in the two appeals are brothers inter se. In the year 1961 Green Belt Scheme was prepared to' develop vegetable cultivation round about the City of Hyderabad. An .area measuring a bout 445 acres of agricultural in deh Jamshoro and Sari was earmarked for the said scheme, out of which pieces of lands were to be let out to individuals on lease basis for a period of 10 years through public auction on the notified terms and conditions. At the auction held on 5th June, 1961 each one of the two plaintiffs made their separate bids, for grant of lease.

Abdul Rehman (plaintiff in suit No. 118/64) gave bid for survey Nos. 28 and 45 measuring 13‑15 acres situated East of Jamshoro Road, at the rate of Rs. 52 per acre and deposited Rs, 695.50 equivalent to half of the one year lease money towards as security and Rs. 348.50 towards one year lease money. A total sum of Rs. 1,044 was thus deposited by Abdul Rehman as per terms and conditions of the auction.

Fazle Haq (plaintiff in suit No. 118/64) made an offer for the grant of lease of survey Nos. 29 and 30 measuring 16‑32 acres situated East of Jamshoro Road, at the rate of Rs. 160 per acre. He deposited Rs. 2,688 towards one year lease money in advance and Rs. 1,344. If of one year lease money towards security. Total amount deposited by him amounted to Rs. 4,032 as per terms of the auction.

Leases were granted to the two respondents separately in respect of the survey numbers mentioned above for a period of 10 years. According to the plaintiffs in spite of their repeated efforts, requests and reminders none of them got water supply as a result of which the amount spent by them for preparing the lands for cultivation and on purchasing seeds, were all lost. According to the plaintiffs they suffered damages due to negli gence on the part of the departmental authorities who made no arrange ment for supply of water though they had earlier represented that it would start latest by 30th June, 1961. The two plaintiffs, therefore, after serving notice under section 80, C. P. C. filed their respective suits mentioned above for following reliefs.

(i) Abdul Rehman in First Class Suit No. 117/64 besides costs and claimed decree for Rs. 1,694 which represented Rs. 695.50 paid as advance rent for one year, Rs. 348.50 paid as security amount and Rs. 654 for the loss suffered by him, and

(ii) Fazle Haq in the First Class Suit No. 118/64 claimed refund of the lease money amounting to Rs. 2688 paid in advance and also Rs. 1,344 paid as security deposit and Rs. 850 for the loss caused to him. He accordingly prayed for a decree for recovery of Rs. 4,882 against the appellants.

2. Both the above‑mentioned suits were contested by the appellants. A number of issues were framed by the trial Court who after recording evidence and hearing the parties passed common judgment and decreed the suits as follows :‑

(i) For Rs. 1,344 in favour of plaintiff Fazle Haq being the refund of the security deposit and

(ii) for Rs. 348.50 in favour of the plaintiff Abdul Rehtnan also for refund of the security deposit.

3. Against the above judgment and decrees passed in the two suits mentioned above the appellants filed civil Appeal No. 87/69 against Fazle Haq and Civil Appeal No. 88/69 against Abdul Rehman. Both the appeals were heard by the learned District Judge, Hyderabad, who by a common judgment dismissed the same with costs,

5. I have heard the learned counsel for the parties. Mr.A. S. Shaikh, learned Additional

A-G for the appellants confined his arguments to issue No.5 which reads as follow:.

"Whether the plaintiff is entitled to get back the lease money and the security amount and the expenses incurred by him "

The learned Additional A.‑G. submitted that the appellants having cancelled the lease of the respondents on account of their failure to pav instalments the security amount was forfeited and, therefore, the security amount could not have been ordered to be refunded.

6. In order to appreciate the contention raised by the learned counsel for the appellants with his assistance, I have gone through the record of the two appeals. It is not denied that the Government was required to ensure the supply of water in the Government channel which was supposed to command the leased area and that no water was flowing in the said (Wadhu Wah) upto 12th August, 1961 when the plaintiffs rescinded the contract. The offer to purchase the land was made on 5th June, 1961 when the public auction took place and the plaintiffs made their respective bids on representation that water would flow from 30th June, 1961. It is not necessary to refer to all the letters exchanged between the parties but relevant it would be to point out that on 25th July, 1961 both the plaintiffs with reference to their telegrams dated 30th June, 1961 and letter dated 10th July, 1961 wrote to the Revenue Officer, Barrage, Hyderabad, request ing him to intimate the final date of supply of water and warned that in case of failure to do so they could be constrained to abandon the lease and claim damages from the department. Thereafter on 2nd September, 1961 in view of the failure of the departmental officers who could give no satisfactory reply the plaintiffs by their letters dated 2nd September, 1961 informed the Divisional Commissioner, Hyderabad that in spite of the assurances given that water would be supplied to them by 30th June, 1961, the promises so made were not kept as a result of which all their invest ments became a total loss and banana seeds collected by them were also destroyed. The plaintiffs in these circumstances notified that they were not in a position to utilise the survey numbers in question any more and requested that their bid money and deposits be refunded to them on 23rd September, 1961 the plaintiffs informed the Executive Engineer that they had surrendered the above land on account of failure to supply water according to promises made. This was followed by a reply from the Revenue Officer, Ghulam Muhammad Barrage, Hyderabad, wherein he asked the plaintiffs to cooperate with the irrigation authorities in getting the supply of water and if these officers fail to give necessary assistance there would be good ground for the grievance on the part of the plaintiffs. The said officer directed the plaintiffs to meet the irrigation authorities who according to the said letter would help them in taking out the watercourse across the link road. It was, however, stated that the responsibility for excavating watercourse was upon those who had taken lands. The plain tiffs in reply by their letter Exh. 55 notified that they had already with drawn their bid and requested for refund of their deposits and lease money. Ultimately after exchange of letters between the parties the plaintiffs filed the two suits for the grant of reliefs mentioned above

7. The learned trial Court under Issue No. 5 (which was the only issue pressed at the time of hearing of these appeals) came to the conclu sion that there was no condition in the terms of the lease agreement for forfeiture of security deposit which therefore could not have been appro priated by the Government and accordingly the plaintiffs were entitled to the refund of the said amounts,

The first Appellate Court also gave clear finding of fact that the Government was not entitled to cancel the lease on 1st February, 1962, as much before that date the plaintiffs had already cancelled the lease and surrendered the land on 12th August, 1961, on account of non‑supply of water to the defendants. The learned lower appellate Court further obser ved that in the present case the Government was bound to ensure the water supply in the Government channel, which was supposed to command the leased area. It has not been disputed in the present cases that no water was flowing in the channel (Wadhu Wah) upto 12th August, 1961 when the plaintiffs rescinded the leases.

Having given findings of facts as above the learned lower appellate Court proceeded to hold that since the lease was rescinded and the plain tiffs had paid the lease money for the first year, without enjoying any benefit from the lands‑ the Government was bound to refund the security deposit and there was no justification for forfeiture of the security deposits.

8. The learned Additional A.‑G. for the appellants has not been able to point out anything in the agreement which empowers the Government to forfeit the security money in spite of the fact that no water was sup plied in the channel and the plaintiffs could not enjoy the lease which according to the plaintiffs evidence resulted in loss of the amounts spent by them on the development of the land as well as on purchases of .banana seeds. In the absence of any loss having been caused to the Government on account of rescission of the lease by the plaintiffs on the expiry of full A one year without enjoying the land due to default on the part of the department. I do not find any error of law or fact, which could justify interference in the second appeals in the findings of facts reach by the two Courts below. In fact decrees passed for refund of the security deposit on the facts and circumstances of these cases were fully justified in view of the principles laid down in the case of Province of West Pakistan v. Messrs Mistri Patel & Co. (PLD 19695 C80) where the Honourable Supreme Court held as follows :‑‑ ,

"In the present case, we are, therefore, to see whether the Province of West Pakistan can claim the whole or any part of the amount which the firm was to deposit by way of earnest money. It will be wrong to argue that since the firm had agreed to deposit a sum as earnest money and in lieu thereof furnished Bank Guarantee for the said amount, the Government would be entitled to claim the whole of this amount simply because there was a breach of the contract by the firm.

Having made the observation as above the Hon'ble Supreme Court on the ground that the plaintiffs instead of suffering any loss for the failure of the firm made a profit held that the plaintiffs were not entitled to any part of its claim, whether the term of the contract regarding forfeiture comes within the purview of section 74 of the Contract Act or not.

The principles laid down by the Honourable Supreme Court, fully justify the conclusions reached by the two Courts below, which are under consideration before this Court.

9. Reference may also be made to the case of Muhammad Shafi and another v. Sher Ali (1970SCMR510) where it was held that the High Court in Second Appeal would not interfere in the concurrent findings of facts given by the two Courts below simply for the reason that some other view could also be taken in the case.

In the case of Khairati and others v. Taza Din and others (1968SCMR 1027) the Honourable Supreme Court observed that findings of facts arrived at by the first two Courts concluded the appeal and that the High Court had rightly refused to interfere in the said findings.

10. The upshot of the above discussion is that no error of law could be pointed out by the learned A.‑G. in the findings of facts concurrently arrived at by the two Courts below. Thus these two appeals fail as being without merits. The same are, therefore, dismissed ‑

M.Y.M. Appeals dismissed

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