2006 PLP 220 (CLC)

MUHAMMAD NAWAZ BHATTI, J.

This appeal filed under section 96, C.P.C. is directed against the judgment and decree, dated 25-4-2002, whereby the learned trial Court dismissed the suit of the appellant instituted against the respondent for recovery of Rs.31,.04,413.

2. It is stated in the plaint that the plaintiff/appellant deals in the business of pesticides and the defendants/respondent being the Divisional Manager, Multan received pesticides to the tune of Rs.36,27,913 from August, 1997 to November, 1997 but he paid only a sum of Rs.9,57,500 and the remaining amount of Rs.26,70,413 was not paid despite having been repeatedly asked; that he had also received Rs.4,34,000 in cash from PBAE D.G. Khan Alipur and failed to deposit the same in the account of the appellant/plaintiff; that because of his misconduct, he has also been terminated. He was asked to pay the outstanding amount but he declined to do so, hence necessity arose to file the suit for recovery of the aforesaid amount along with costs.

3. This suit was vehemently contested and the learned trial Court framed the following issues, with reference to the pleadings of the parties:-- (1) Whether the plaintiff is entitled to recover Rs.31,04,413 from the defendant? OPP (2) Whether the suit is not maintainable in view of the preliminary objection No.1 of the written statement? OPD (3) Whether the plaintiff has no cause of action? OPD (4) Whether the plaintiff is estopped to file the suit by his words and conduct? OPD (5) Whether the plaintiff has not come into the Court with clean hands? OPD (6) Relief.

4. After having examined the evidence led by the parties, the learned trial Court dismissed the suit vide its judgment and decree dated 24-1-2002, now being impugned through the instant R.F.A.

5. Learned counsel for the appellant vehemently argues that the impugned judgment is an outcome of misreading and non-reading of the material pieces of evidence substantiating the assertions of the appellant and negating the stand put forth by the respondent. Particular reference has been made to the statements of D.W.3 Sharaf-ul-Haq and suggestions put to P.W.5 as well as Exh.P.10 to Exh.P.127; that the respondent who is guilty of foulplay with reference to performance of his duty as Divisional Manager of the appellant, has been receiving the pesticides of the value noted above, in the name of "Bismillah Agricultural Service, Makhdoom Rasheed" but he could not prove existence of the same, that the impugned judgment is also based on the reasons not legally and factually tenable.

6. On the other hand, learned counsel for the respondent had vigorously supported the impugned judgment and decree by submitting that the same had been passed strictly in accordance with law and facts.

7. We have considered the submissions made at the bar and perused the record with the assistance of the learned counsel for the parties.

8. It is stated in ground IV of the instant appeal that "through documentary and oral evidence it stands proved beyond any shadow of doubt that the respondent/defendant himself, in the fictitious name of Bismillah Agricultural Service, Makhdoom Rasheed, swallowed a sum of Rs.36,27,913 from August to November, 1997". But strange enough such a fact has not been stated in the plaint filed by the appellant. On a Court question as to how the evidence regarding a plea/fact not averred in the plaint can be looked into or can be given any weight legally being beyond the pleadings? The counsel for the appellant, at first did not come forward with any reply however, after a bit hesitation he stated that the said plaint was received by him from the head office of the appellant situated in Karachi and submitted the same as it is in the trial Court, after having signed. This can hardly be taken as a justification to meet with the settled proposition of law, put to him. On another Court question as to whether such a fact was stated in the notice/order terminating the services of the respondent? Learned counsel replied in negative but he did concede that such a fact of business in the name of Bismillah Agricultural Service, Makhdoom Rasheed was in the knowledge of the appellant, at that time and that was the reason for termination of the service of the respondent, but on a further Court question as to what for such a fact was not incorporated in the said notice of termination of service of respondent, no answer was given.

9. Viewed from the above dimension, the case of the appellant had tried to be set up in the evidence with reference to Bismillah Agricultural Service Makhdoom Rasheed being beyond the pleadings was not rightly given any significant weight by the learned trial Court.

10. We have also noticed that the claim of the appellant to the tune of Rs.1,00,000 allegedly taken by the respondent from a representative of the company namely Muhammad Abdullah (P.W.4) was also not available in the plaint of the appellant. So the case of the appellant in this respect tried to be established in the evidence by producing Muhammad Abdullah (P.W.4) is also not tenable.

11. Even otherwise we have noticed that D.W.3 (Sharaf-ul-Haq) appeared in the witness-box and stated on oath: He lastly stated in the examination-in-chief that he has always been willing for rendition of account with the appellant.

12. In the presence of this categorical admission of D.W.3 qua Bismillah Agricultural Service, Makhdoom Rasheed we asked the learned counsel for the appellant as to whether any step was taken against him after having gone through this statement made by him on oath in the learned trial Court, no satisfactory answer was given except that said D.W.3 was in fact not the proprietor of Bismillah Agricultural Service, Makhdoom Rasheed. At this stage learned counsel has also referred to a suggestion put by the respondent to. P.W.5 (Qamar-uz-7.aman) and submitted with reference to the same that statement made by D.W.3 was not in line with the said suggestion, hence the same cannot be relied upon. But we are not in agreement with the learned counsel on this score as statement of D.W.3 made on oath went a long way to suggest that he was prima facie the proprietor of Bismillah Agricultural Service, Makhdoom Rasheed. Had the appellant moved any step with reference to the said statement of the said D.W.3, truth would have come out in the context of real ownership/proprietorship of the said Bismillah Agricultural Service, Makhdoom Rasheed. During the arguments we have also asked the learned counsel for the appellant as to whether any action was taken against the respondent on criminal side qua the alleged misappropriation, no answer was given. We have also asked the learned counsel as to whether any inquiry (departmentally) was held with reference to the alleged misconduct/misdeed of the respondent, no answer was given. We have asked these questions to the learned counsel for the appellant, he was of the view that the respondent was the servant of the appellant and not his agent as observed by the learned trial Court in the impugned judgment.

13. It is stated by respondent (D.W.5) that he had joined the appellant in the year 1989 as Sales Officer and because of his extraordinary performance towards promoting the business of the appellant, he had been promoted to the Regional Manager, Multan and he worked in such capacity till 1996. Thereafter with reference to his superb performance for increasing the business of the appellant, he was promoted to the Divisional Manager and in this capacity too he performed his duties honestly. In the year 1997 sale of the pesticides delivered by the appellant was Rs.90,00,000 out of which business of Bismillah Agricultural Service, Makhdoom Rasheed was to the tune of Rs.70,40,759 and out of the same a sum of Rs.46,67,567 was deposited by the said concern/company and he did not have any special relation with the same and dealers withheld the remaining payment on the ground that the appellant had failed to honour their incentive scheme with particular reference to the payment of commission and fulfilment of other attractive terms and no amount in any context as alleged by the appellant was outstanding against him. He was thoroughly cross-examined by the appellant but he remained firm and consistent with the statement made in examination-in-chief. On a Court question he did admit in all fairness We have invited the attention of the learned counsel for the appellant to this admission made in response to a suggestion of the appellant and asked that if the delivery of the goods (pesticides) had been made onward to any other concern/dealer, whether the appellant could be held responsible if that company/concern failed to make payment qua the same and what for no claim was made against said concern/dealer learned counsel could not come forward with any convincing reply. However, learned counsel contended that because of the alleged misappropriation, the appellant had 'purchased some immovable property in Makhdoom Rasheed and this fact was also admitted by him while appearing as D.W.S. We have noticed that he simply stated We asked the learned counsel for the appellant as to how far this piece of evidence would substantiate that such land was purchased from the alleged misappropriated amount. No answer was given.

14. The only evidence led by the appellant to prove that the respondent was running Bismillah Agricultural Service, Makhdoom Rasheed was in the shape of statement of Sajid Hameed (P.W.3) a driver of the appellant, who simply stated that he had delivered pesticides of the appellant to the office of the said concern 5/7 times, where son of respondent namely Nadeem or Naeem was found sitting there. This evidence is not sufficient to hold that said concern was in the proprietorship/ownership of the respondent. Similarly is the claim of the appellant to the tune of Rs.4,34,000 could not be proved convincingly and factually against the respondent.

15. A perusal of the impugned judgment shows that the learned trial Court had taken great pain to examine the matter in its true perspective with reference to the evidence available on the file and no material piece of evidence went unnoticed in doing so. We are convinced that the learned trial Court has passed the impugned judgment and decree on a due appreciation of law and facts, calling for no interference in this appeal, which stands dismissed, leaving the parties to bear their own costs. H.B.T./R-154/L?????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.