P L D 1996 Lahore 702 (PLP)

(2) Whether gold ornaments mentioned in para. 2 of the plaint were prepared on order placed by defendants Nos. I and 2?

0. P. P. (3) Whether the disputed gold ornaments were delivered to the defendants Nos. I and 2 by the plaintiff on credit basis?

0. P. P. (4) Whether the defendants Nos. I and 2 have not paid the price of disputed gold ornaments which comes to Rs.2,69,000? O.P.P. (5) Relief.

4. The plaintiff/appellant examined three witnesses while he himself appeared as P.W.4. The only documentary evidence produced by the plaintiff/appellant was a note book containing entries as to alleged supply of the gold. The said note book was received in evidence as Exh‑PI and the various leafs thereof were exhibited as Exh.Pl/A to Exh. P I /F. The defendants/respondents on the other hand, examined one witness while respondent No.2 appeared as his own witness as D.W.2. No documentary evidence was produced by the defendants/respondents.

5. The learned trial Court having appraised the evidence on the record as also elaborately discussed the same proceeded to dismiss the suit mainly on the ground that the alleged transaction of supply of gold was not established by any cogent evidence. In reaching the conclusion noted above the learned trial Court am took special note of the account book/day book Exh. P. I allegedly maintained by ‑the plaintiff/appellant in regard to the orders placed for the supply of ornaments and found that the said note book was not regularly kept inasmuch as the various intervening leaves were found to be blank and even otherwise the same was not signed by the defendants/respondents. The learned trial Court was extremely critical about the fact that as to why the said note book was not presented at the time of filing the plaint and secondly why the same was not relied in the original list of reliance filed under Order VII, Rule 14, C.P.C. The weight mentioned in the note book was found to be in grams and c‑grams while in the plaint the same was described by Tolas and Mashas. The oral evidence of the plaintiff/appellant was found to be contradictory and even otherwise interested because of some enmity. Consequent upon the findings noted above the suit of the plaintiff/appellant was dismissed with costs vide judgment and decree dated 10‑2‑1992 passed by the learned trial Court.

6. The abovesaid judgment and decree has been assailed in the present appeal which was originally filed on 24‑3‑1992. The office, as per the Rules of Lahore High Court, checked the appeal and raised objection to the effect that the court‑fee of Rs.15,000 be supplied; receipt of Rs.250 advance printing charges be filed as required by Rule 9, Chapter 2‑A of the High Court Rules and Orders, Volume V and that the page marking of the appeal be done with the further objection that the usual index in regard to details of documents be filed. The objection‑sheet attached to the appeal shows that these objections were taken on 30‑3‑1992 and the appeal was ordered to be returned on 31‑3‑1992. The appellant, however, did not care to collect the appeal till 10‑1‑1994 and having collected the same on the date aforenoted refilled the same on 24‑1‑1994, as is evident from the note of the learned counsel for the appellant endorsed on the objection‑sheet duly signed and dated by the learned counsel himself. In this scenerio learned counsel for the respondents has raised a preliminary objection as to the maintainability of appeal on the ground of limitation. It was submitted that the court‑fee of Rs. 15,000 having not been supplied at the time of filing the appeal, the appellant was afforded an opportunity to supply the same within a period of seven days. Similarly the memorandum of appeal being not in accord with the law an opportunity was granted by the office to rectify the same within a period aforementioned yet the appellant did not care to either collect the appeal for supplying the requisite court‑fee or removing the objections raised by the office till 10‑1‑1994 while in the meantime the appeal had become barred by limitation. The precise submission was to the effect that since the required court fee of Rs.15,000 was neither supplied within the period of limitation even in spite of the fact that an opportunity to that effect was provided by the office nor other objections were removed, therefore, the appeal cannot be deemed to have been competently filed. As a matter of fact it was argued that the original filing of the appeal would become inconsequential for the purpose of limitation and that the appeal shall be deemed to have been filed on 24‑1‑1994 i.e. the date of refiling the appeal after removing the objections. Reliance was placed on Manzoor Hussain and others v. Sajawal and others 1983 SCMR 465, Ghularn Hussain and others v. Bahadur and others PLD 1954 Lahore 361, Syed Manzoor Hussain Ghazi v. Syed Ejaz Hussain Shah, Settlement Commissioner, Lahore Division, Lahore PLD 1972 Lahore 743, Sultan Muhammad v. Muhanur Ashraf and 4 others 1991 CLC 269 and unreported judgment of this Court rendered in F.A.0. No.231 of 1991 and Muhammad Ahmad v. Muhammad Ali etc. PLD.1996 Lah. 158.

7. The time for removal of the objections is granted under Rule 4 of High Court Rules, and Orders contained in Chapter I of Volume V which reads as under: ‑‑ "(4) The Deputy Registrar may return for amendment within a time to be fixed by him any memorandum of appeal for the reason specified in Order XLI, Rule 3 of the Code of Civil Procedure." It is matter of common knowledge that the rules of Order XLI in their terms are made applicable to the second appeal because of the provisions of Order XLII, C.P.C. Rule 3 of Order XLI speaks of rejection or amendment of memorandum of appeal. It reads as under: "

3. Rejection or amendment of memorandum. ‑‑(l) Where the memorandum of appeal is not drawn up in ihe manner herein before prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there. , (2) Where the Court rejects any memorandum, it shall record the reason for such rejection. (3) Where a memorandum of appeal is amended, the Judge, or such officer as he appoints in this behalf, shall sign or initial the amendment. " The combined reading of the two rules noted above would show that while in the first appeal the time for removing the objection or matters connected therewith is to be fixed by the Court, the same duty is enjoined on and performed by the Deputy Registrar of the High Court in relation to the second appeal, therefore, it can be safely concluded that the time fixed by the office under the overall supervision of the Deputy Registrar of this Court is to be strictly adhered to because the limitation for filing the appeal having begun to run cannot be stopped or supplemented by act of commission or omission of the appellant unless be it a case of disability as envisaged under the law, therefore, the period of time taken beyond the time specified by the office would neither be excluded nor added to the limitation while computing the limitation for filing the appeal and if in the meanwhile the appeal had become barred by time, the only course open to the appellant would be to apply for condonation of delay by furnishing explanation therefor. In the instant case no such effort was made by the appellant as no application under section 5 of the Limitation Act was filed so as to explain the delay in refilling the appeal. It was at the hearing of the appeal that the learned counsel for the appellant tried in vain to argue that the objections raised by the office and the subsequent "return" (as understood in the parlance of office language) was not duly notified to him, therefore, the appellant was not to be blamed for the delay in collecting the appeal or refilling the same beyond the period of limitation. On our query as to what procedure was normally adopted by the office in returning the appeals, the learned counsel for the appellant candidly conceded that the same is notified either by affixation of list of such cases on the notice board meant for urgent petitions or is otherwise conveyed to the counsel concerned by way of list circulated for case fixed for Pacca hearing. Manifestly, it was the duty of the appellant or his counsel to have watched the list affixed on the notice board or perused the other circulated in regard to Pacca cases. Both of them having failed in their duty no one else is to be, blamed. Needless to add here that the original filing of the appeal would also not come to the help of the appellant inasmuch as the same was, not competently filed and then it does not appeal to reason at all that the appellant did not come to know of the objection raised by the office for a period of about 2 years i.e. from 24‑3‑1992 to 10‑1‑1994. The delay is not only palpable but also contumacious and need it be reiterated here that the time for filing the appeal having expired, the appellant is required to explain the delay of each and every day separately. The appellant on the other hand, exhibited very casual attitude in regard to the serious objections of limitation which cannot be blessed with the discretion of the Court. We are fortified in this view by judgment of the Supreme Court in the case of Manzoor Hussain and others v. Sajawal and others 1983 SCMR 465 and the various judgments of this Court as noted above. The rule of law laid down in all these judgments is to the effect that the time fixed by the Deputy Registrar/office of this Court for collecting and refiling of the appeal should be strictly adhered to and if appeal or petition is not filed within time limited by the Deputy Registrar/office, the same shall be deemed to have been presented on the date when it is refiled and if in the meanwhile the same had become barred by limitation, the delay in refiling the appeal shall not be condoned unless a reasonable explanation is given therefor.

8. For the reasons aforenoted we are not persuaded to condone the delay in filing the appeal, therefore, the same is dismissed as barred by limitation.

9. Coming to the merits of the case it would be noted that the plaint in the suit filed by the appellant was grounded on the plea of custom of trade to the effect that the gold or golden ornaments were supplied to the shopkeepers on credit basis and the value thereof was received by the suppliers on the verification of Accounts. The plaintiff/appellant having pleaded the custom of trade had taken upon himself a very heavy onus of proving the said custom. No precedent of such a custom being in vogue in the market has been produced to discharge the said onus. Ziauddin P.W. 1, who is defendant in the case and has also filed a conceding written statement has appeared to state that golden ornaments were supplied by the appellant to the respondents. Some description of the golden ornaments has been given but without their respective weights. The general statement as to the description of golden ornaments ' and their net weight was rightly not believed by the learned trial Court. Needless to add that even this witness has not stated a word about the custom of trade pleaded by the appellant but has simply contended himself in stating that supply of ornaments was done on the basis of confidence alone. This witness has also stated that although he acted as a go between the suppliers and the shopkeepers yet he was never authorised by the shopkeepers by way of any chit or otherwise to receive the golden ornaments nor did he sign the alleged account book of the plaintiff/appellant or any receipt in regard thereto. It is not believable that golden ornaments worth lacs of rupees were being supplied without any authenticated record at both ends. The other witnesses i.e. P.W.2 and P.W.3 produced by the plaintiff‑appellant are not direct witnesses of the supply of golden ornaments. P.W.2 has stated that he used to mend and correct the defects in the golden ornaments and that the same job was carried out at. the instance of plaintiff/appellant. He has, however, stated that the emoluments for the job done were not paid by the plaintiff/appellant. He has further stated that the jobs were assigned to him by way of written Parchi. He has neither described the golden ornaments nor mentioned the weight thereof. P.W.3 has also not been able to describe the quality and quantity of the golden ornaments supplied except the bald statement that there is dispute between the parties about 70/80 Tolas of golden ornaments. The statement of the plaintiff, who appeared as P.W.4 is also vague inasmuch as he having given the description of the golden ornaments allegedly supplied to the respondents did not care to give the weight of each and every piece of ornaments separately nor has mentioned as to what was the rate of per Tola gold at the relevant time. He candidly admittedly that original defendant No.3 namely Waheed was his real brother. He, however, showed his ignorance that one of the respondents had lodged a criminal complaint against said Waheed and that many of the shopkeepers in the market were defrauded by said brother of him. The plaintiff/appellant tried to lend support to his statement by producing a note book Exh.P. I as according to him he had made entries therein in regard to the ornaments supplied to the respondents. On Court question, it was very candidly admitted by the plaintiff/appellant himself that the book is not a regularly kept account book but has been maintained by the plaintiff/appellant for his own purpose. Perusal of the abovesaid note book would show that the same has not been regularly maintained as various intervening pages were found to be blank and even otherwise not signed by the alleged receivers of the goods, therefore, the same could not be relied for any good purposes.

10. The overall impression which can be gathered from the reading of the evidence noted above would show that the plaintiff/appellant had himself failed to establish that any custom of trade was in vogue in the market whereby the orders for the supply of ornaments were placed orally or that the same were supplied without any writing or contract in that behalf. Even otherwise the plaintiff/appellant has not been able to establish that as to what was the exact description of the ornaments allegedly supplied by him nor the value thereof was sufficiently established. It is in the evidence that certain ornaments allegedly supplied by the plaintiff/appellant to the respondents were studded with precious stones yet the separate value of gold and stones was not given in the evidence. The note book produced by the plaintiff/appellant could also not be relied because the same is not shown to have been regularly maintained. In the circumstances, the findings recorded by the learned trial Court are based on correct and true reading of the evidence on the record, therefore, the same does not call for any interference.

11. For the reasons stated above, this appeal is dismissed as barred by limitation as well as on facts. The plaintiff/appellant shall also pay the costs thereof A.A.IN.21/L Appeal dismissed.