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Suit No.755 of 1984, decided on 25th March, 1987.
---S.42--Suit for declaration and permanent injunction Plaintiff importer of goods and defendant Octroi contractor and dispute arose between plaintiff and defendant about rate of Octroi--Both parties had reached an agreement and plaintiff praying for enforcing said agreement--Held, plaintiff was entitled to a limited relief to extent of agreement entered between parties which was valid and binding on defendant--Suit decreed accordingly.
PICO Industries Ltd. v. K.M.C P L D 1976 Kar. 1011 ref.
S . A . Sarwana for Plaintiff.
Gulab M. Rang for Defendant No.1.
Date of hearing: 25th March, 1987.
The Plaintiff Huffaz Seamless Pipes Industries Limited, Nipa Chowrangi Karachi have filed this Suit for declaration and permanent injunction against the defendants Abdul Rehman, alleged to be the contractor of Union Council Sari and Chairman Union Council Sari and Government of Sind.
2. The plaintiff has imported machinery from China as described in para 4 of the plaint. When the first consignment arrived at site defendant No.1 claimed Octroi at the rate of Rs.1.75 per hundred rupees. The plaintiff objected to it, as being illegal. On this there was an agreement between the defendant No.1 and the plaintiff on 1-11-1984- which is detailed in para 5 of the plaint. Photo copy of the agreement has been filed with the plaint as Annexure 'B'. The Octroi receipt for payment of Rs.32,500 in accordance with that agreement and an affidavit alongwith a receipt have been filed as Annexures 'D' and 'E' with the plaint for receipt of Rs.17,500.
3. The plaintiff has stated that defendant No.1 could-recovered Octroi from him in accordance with that agreement and also in accordance with the law which does not entitle him to recover more than that. He has, therefore, prayed for necessary declaration and injunction.
4. The defendants have chosen to remain absent in spite of service except defendant, No.1, on whose behalf Mr. Gulab M. Rang, Advocate has filed power. No Written Statement was filed by the Defendant No.1 and as such the suit proceeded against him in the absence of any Written Statement and consequently no issues were framed. Mr. Gulab M. Rang Advocate, has filed an application under Order VII, Rule 10 and has also argued the case today. First of all he relied upon Section 66 of Sind Local Government Ordinance, which reads as follows:-
"66. No assessment of a tax, rate toll or fee under this Ordinance or valuation therefore the liability of a person to be so taxed, shall be called in question except by a petition presented to such authority in, such manner and within such period as may be prescribed."
He then referred to Rule 48 of Octroi Rules 1964 and Rule 216 and finally submitted that the jurisdiction of this Court was barred to entertain this dispute which related to the recovery of Octroi taxes. He also submitted that the factory was situated in Nooriabad in District Dadu and therefore the suit should have been filed in,. District Dadu and not in this Court. Mr. Gulab M. Rang Advocate relied upon the case of Pico Industries Limited v. K.M.C. reported in PLD 1976 Kar.1011, wherein a D.B. of this Court ruled in similar circumstances that writ was not maintainable in such a case.
5. As against this Mr.S.A. Sarwana, Advocate has rightly submitted that in fact there was no dispute. The parties had already decided the matter by means of an agreement and the plaintiff had come to this Court to enforce that agreement. As such it was not at all necessary to approach the authorities provided under the Local Government Ordinance.
6. So far as ,the point of territorial jurisdiction is concerned it ,may be stated that the plaintiff can file suit either in the Court within the jurisdiction of which the cause of action has accrued or in the Court where one or more of the defendants reside. He submitted that the agreement was executed at Karachi within the jurisdiction of this Court. Defendant No.1 as well as defendant No. 3 were residing at Karachi within the jurisdiction of this Court and therefore this Court had jurisdiction to entertain the suit and the plaintiff should not be turned away from this Court on this score.
7. He further submitted that he had already paid more than what was due to the defendants under the law and therefore he was entitled to declaration and injunction as prayed for.
8. Mr.Gulab M.Rang, Advocate finally submitted that defendant No.1 was not the contractor but he was an employee of the contractor Ghulam Qadir. He also brought to the notice of the Court that the period of contract of the contractor had already expired long back and that now he cannot recover the arrears of Octroi tax except by filing a suit for recovery of the same. He, therefore, submitted that the suit had already become infructuous.
9. Having taken into consideration the facts and circumstances of this case and arguments advanced by the Advocates of both the parties I feel that the plaintiff is entitled to a limited relief to the extent that the agreement dated 1-11-1984 entered into between him A and defendant No.1 is valid and binding and that the defendant No.1 .be directed to act in accordance with the same. The suit is decreed with costs to that extent.
M. Y. H./H-53/K Suit decreed.
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