2017 PLP 1031 (MLD)

WAZIR SHAKEEL AHMED, J.

Through this civil first appeal the appellants have impugned the judgment/decree of the trial court dated 12-11-2014 whereby the suit of the respondent was decreed against the present appellants.

2. Brief facts of the case are that the respondent named above filed a civil suit against the appellants Farid and his two sons for a decree of payment of Rs.10,00,000/- (rupees one million) along with interest of prevailing bank rate on account of procurements of 1117 bags of potatoes.

3. According to the averments of the plaint the parties are residents of District Astore who were engaged in contract/supply of potatoes inter-se in the year 2011 also, wherein the respondent/plaintiff supplied potatoes to the appellants who paid the amount of potatoes under contract on time. The parties entered into a oral contract of the same nature in the year 2012 also according to which respondent was to supply of potatoes in the season on time to the appellants at price of market rate and a commission of Rs.100/- per bag was also settled between the parties to be paid to respondent.

4. Respondent under the above oral agreement supplied potatoes on different consignments as under:-- (i) 290 bags @ 2100 per bag = 609000/- (ii) 190 bags @ 2150 per bag = 408,500/- (iii) 607 bags @ 2200 per bag = 1335400/- (iv) Potatoes( small) 30 bags @500 = 15000/- (v) Commission as per oral agreement @ 100 per bag = 1,11700 Total:-- 24,79,600 According to the para 6 of the plaint out of above total amount of 24,79,600/- appellants have paid Rs.14,79,600/-while Rs. 10,00,000/-(rupees one million) is still out standing against them to the extent of which he is entitled for a decree prayed for.

5. Appellants vide their written statement filed before the court denied the claim of the respondent putting forward number of preliminaries objections regarding maintainability of the suit. On paras Nos. 1 and 2 of the plaint regarding of the parties and the previous contract and its fulfillment by the respective parties was admitted with the classification that the respondent has supplied 972 bags of potatoes to appellants on different rates and they have paid the amount for the supplied goods.

6. According to the averments of para 3 of the written statement respondent supplied the commodities and was paid as per following schedule:-- (i) 572 bags @ Rs.2100/- per bag = 1201200/- (ii) 90 bags @ Rs.2150/-- per bag = 193500/- (iii) 280 bags @ Rs.200/- per bag = 616000/- (iv) 30 bags @ Rs.500/- per bag 972 = 15,000/- 20,25,700 It is also mentioned in the para that the appellants have paid the entire amount Rs.20,25,700/- to the respondent rather have paid in excess and strongly refuted the claim of commission of Rs.10 per bag to the respondent. The learned trial Judge in the light of divergent pleadings framed the following issues:-- The parties got adduced 3 PWs and 4 DWs of their issues before the trial Court on 14-11-2013 and 5-5-2014 respectively and rebuttal of evidence was got recorded on 11-8-2014. On 17-6-2014 appellant/ defendant filed an application under Order XIII Rule 2 read with section 151, C.P.C. for production of document i.e. bank statement of appellant No

dated 6-5-2014 containing six pages which was finally allowed vide order sheet 19-8-2014 with the cost of Rs.1500/- and the matter was fixed for final arguments on 8-9-2014 and for 15-10-2014 and on this date i.e. 15-10-2014 the matter was finally heard and fixed for order on 3-11-2014. On the above date appellants filed yet another application for filing of the some documents vide under Order XIII Rule 2, C.P.C. and argu-ment on the same was heard on 11-11-2014 and adjourned for orders of the same as well as on the main case and vide judgment dated 12-11-2014, the suit of the respondent was decreed and the application reflected above was also dismissed vide separate judgment both have been made impugned before this court through the present civil first appeal. I have heard the learned counsel for the parties at length and also gone through the record of the case with their able assistance which reveals that the learned trial court has unnecessarily framed 13 issues in the case in hand. The curtail point of determination in the case in hand are the para 5 of the plaint which is also reproduced in para No-4 suppra whereby the plaintiff has alleged that out of total 1117 bags he was entitled to receive 24,79,600/- and has only received 14,79,600/- and he is entitled to remaining payment of Rs. One million from the defendant as reflected in issues Nos.3 and 4 and in the particular circumstances of the case in hand the whole burden of proof was shifted on the shoulders of the defendant defendant/appellant that in fact they have received 972 bags of potatoes from respondent plaintiff and to the contrary the present appellant/ defen-dant failed to prove as per contains of the para 5 of the written statement reproduced in para No.6 suppra that they have received 972 bags from respondent and they have paid a sum of Rs. 20,25,700 to the respondent reflected in issue No.9, so I am of the opinion that in fact issues Nos.2, 3, 4 and 9 are the real points of determination in the case in hand. In the particular circumstances of the case in hand as narrated above the fate of the case revolves upon the issue No.9 referred above as in my humble opinion the burden of proof regarding the payment of contract money was shifted to shoulders of present respondent to that of appellant as they have claimed payment of Rs. 20,28,

400. The perusal of record transpires that the plaintiff vide his statement recorded before the trial court stated that in the year 2012 they had purchased from respondent 280 bags of potato Rs.2200/-, 90 bags Rs.2150, 572 bag @ Rs.2100 and 30 bags @ Rs.500/- and he had paid the total amount Rs.20,25,700/- of the above purchased bags inclusive labour charges , transportation price of bags each expenses inclusive. He further narrates that he had paid the above in the shape of some cash and commodities i.e., rice, Dalda etc. and through cheques. In the last leg of 2012 Rs.142,000/- were outstanding against them which they cleared by issuing of cheque of Rs.150,000/- through son of the appellant ( one of the defendant). During the cross-examination the defendant /respondent admits that they have admitted the payment of Rs.20,28,400 in their written statement. The appellants totally failed to prove the issue No.9 through documentary evidence rather it is admitted in the cross-examination that they have not paid any amount to the respondent in front of any of the DWs. It is also admitted during the cross-examination that all the DWs don't know that the appellants have got purchased how much bags of potatoes and on what price. DW-1 Ali Raza admits that he knows nothing about the transaction of the parties inter se. DW.2 Noor Khan narrated that he has worked with plaintiff/ respondent since last 10 years and in this period he did not work as commission agent. He further states that the present appellant handed over a cheque of Rs.150,000/- to respondent as last instalment but during the cross-examination he not only states that he know nothing about contract between the parties but also say that he does not know whether the delivered cheque was first or the last installment. DW-3 is also the witness regarding the alleged cheque of Rs.150,000/- he also affirms that he does not know anything about the transaction between the parties. The last and 4th DW in also witness of the above referred cheque of Rs 150,000/- issued the respondent but he is unable to say the name of the bank. On the other hand the respondent and the PWs are consistent in their statements regarding claim of the respondent/plaintiff. All of them categorically stated before the court that the parties successfully ended their previous contract in the year 2012 it was also stated that respondent shall supply potatoes to the appellants on market rate with a commission of Rs. 100 per bag. At that time, the prevailing rate was Rs. 2100 per bag. At this rate of Rs. 2100 he supplied 290 bags to appellants. Afterwards 190 bags were presented @ 2150 on the next day the rates were 2200 per bag and further consignment of 607 bags were supplied by respondent to appellant at this rate of 2200 and finally 30 bags of small potatoes were also supplied @ Rs.500 per bag. The total amount of above 1117 bags was 24,79,600 and appellant paid Rs.14,79,600 and one million is still outstanding against them. The appellants have also made impugned a separate judgment of the same day i.e. 12-11-2014 of the trial court whereby the application filed by the appellant under Order XIII Rules 2 was dismissed. It is an admitted state of affair that the appellant after recording statement of PWs on 17-6-2014 before recording of rebuttal evidence appellant file an application of the same nature intending to file a bank statement with the plea that the same was handed over to this counsel who could submit the same along with plaint which was allowed with a cost of Rs.1500 and the matter was adjourned for final arguments as the statement of R/W was already got recorded on 11-8-2014 before the arguments and after 05-11-2014 some adjournments for the said purpose. The appellant again file a similar application under Order XIII Rule 2 which was adjudicated during the final arguments and was dismissed on the same day vide separate judgment. It is on record that the above second application was filed with the same plea as that of previous one therefore the learned trial Judge had no other option but to dismiss the same as there is no provision elsewhere in the code that after accepting the pervious application on a certain grounds i.e. that of non-filing of the same by the counsel with the plaint the 2nd application on the same plea does not lie at any cost under any circumstance. In the light of what has been discussed above we see no force in this appeal as the finding arrived at by the trial court are based on correct appreciation of law and facts and by maintaining the same this appeal stands dismissed. No order as to cost. HBT/130/GB Appeal dismissed.