1999 PLP 3186 (MLD)

(3) Whether the suit is not valued for the purposes of court-fee and jurisdiction, if so its effect? O P D. (4) Whether the suit is bad for non-joinder of necessary party, if so, its effect? O P D. (5) Whether the plaintiff has not come in the Court with clean hands, if so, its effect? O P D. (6) Whether the suit is false, frivolous and has been filed with mala fide intention, if so, its effect? O P D. (7) Whether the consignment documents were not delivered to the foreign buyer due to negligence/bank laxities of the defendant, if so, its effect? O P P. (8) Whether the plaintiff has suffered loss of business and damages including the expenses owning the under negotiation of documents and failure for disposal, if so, its effect? O P P. (9) If the above issues numbers 7 and 8 are proved whether the plaintiff is entitled to recover the damages of Rs. 15,73,200 from the defendant? O P P. (9-A) If the above issues Nos. 7 and 8 are proved whether the plaintiffs are entitled to recover the damages of Rs. 15,73,200 from the defendant if not then to-what extent? O P P. (9-B) Whether the defendant was bound to verify and check the credentials of the importer i.e. M/s Oriental Gallery including his bank account at the Merchants Bank of New York and credit worthiness? If so, its effect? O P P. (9-C) Whether the defendant bank failed to follow any uniform customs and practice relating to the documentary transaction? O P P. (10) Relief.

10. In support of its case the respondent/plaintiff examined Shahid Usman as P. W. 1 and Muhammad Ali as P. W.

2. The appellant examined Muhammad Afzal as D. W.1 and Ghulam Sarwar as D.W.2.

11. The documentary evidence produced by the appellant through D. W .2 consists of documents from Exh. D. 1 Exh. D. 28 some of which were admitted in evidence subject to objection raised my the plaintiff, whereas the documentary evidence produced by the plaintiff in (lie cross-examination of D. W. 2 consists of documents Exhs .D. W. /P.1 to D. W. 1/P.7.

12. The trial Court answered issue No. 1 in favour of plaintiff. Issue No .2 was decided against the appellant on the ground that no evidence was produced to prove the said issue. Issue No. 3 was decided in favour of the plaintiff by holding that court-fee of requisite value of Rs. 15,000 had been affixed on the plaint. Issue No. 4 was decided against the appellant by holding that the suit has been filed against the proper party and no other person was proper or necessary party in the suit. Issue No. 5 was also decided against the appellant by holding that the appellant failed to prove that the plaintiff had approached the Court with unclean hands.

13. Issues Nos. 6, 7, 8, 9 and 9-A were inter-connected, therefore, they were discussed and decided together against the appellant. The damages granted to the plaintiff by the trial Court were so follows:-- (i) The price of the Invoice (Shipment) Rs. 8,53,200.00 (ii) Order cancelled and interest loss. Rs. 60,000.00 (iii) Mental torture and money spent on other expenses. Rs. 1,10,000.00 Total Rs. 10,23,200.00

14. Issues Nos. 9-B and 9-C were discussed and decided together. They were decided against the appellant. In the result the suit was partly decreed to the tune of Rs. 10,23,200.

15. The defendant has challenged the said judgment, and decree in this appeal and has prayed for reversal of the same and dismissal of the suit. The plaintiff has filed connected R. F. A. No. 71 of 1994 for passing decree for the remaining amount which has been disallowed by the trial Court.

16. The material issues in the case are issues 6, 7, 8, 9 and 9-A. The decision of both the appeals centres around the decision on these issues one way or the other. Learned counsel for the parties addressed arguments only on these issues.

17. Since the respondent/plaintiff had claimed specific amounts as damages on account of the price of the invoice, order cancelled ,and interest loss and mental torture and money spent on other expenses, therefore, it was bound to prove that he had in fact suffered the said losses. The respondent examined Shahid Usman as P. W. 1 who is an employee of appellant firm who merely stated that the shipment of the items in question were remained unsuccessfully on account of which losses were suffered on account of cancellation of other order mental agony and the reputation of the firm was also adversely affected. No specific amount was mentioned as to how much loss in terms of money was suffered by the firm on account of cancellation of other orders and reputation of firm in the eye of the public and mental agony. No witness from the public dealing with the plaintiff firm as regards loss of reputation in the business was produced and examined. The statement of Shahid Usman P. W. 1 was merely repetition of averments made in the plaint in the general terms and it is well -settled law that the averments in the plaint are no evidence unless they are proved through evidence. Muhammad Ali appeared as P. W.

2. He has also made general statement about the cancellation of other orders and loss of reputation etc. without specifying the amounts and particulars of other orders which were cancelled by the customer and the amount involved in the said orders and the manner in which the respondent firm suffered the losses in terms of money as it was necessary for the respondent to prove on the record that the appellant would have earned profits in specific amount from the said orders had they not been cancelled. There is sufficient evidence on record in the form of documents particularly Exh.D.W.I/P.1 produced by the respondents which shows that it was the appellant who was to ship the consignment in dispute and intimated the party concerned abroad about its shipment. There is no evidence except mere delivery of documents that the consignment was in fact shipped. The appellant/defendant intimated the respondent through letter that the documents had been returned by the foreign bank and were pending at its risk and responsibility as particulars of the consignee were not available with the bank abroad. Exh.D.19 is a letter written by partner of plaintiff-firm which reads as under:-- "We refer to your meetings and verbal discussion on the subject noted above. As decided to call back the goods from U.S.A. to Pakistan. You are requested to please forward the case to State Bank of Pakistan and obtain their permission in this regard."

18. Learned counsel for the respondent/plaintiff when questioned as to how the respondent could recover the value of the goods shipped and as to what is the evidence available on the record that the said goods were not disposed of by the respondent/plaintiff after its return from abroad if they were shipped at all has no answer except that the Court should examine the relevant provisions of he Negotiable Instrument Act as to a normal practice and procedure for the shipment and return of the goods. We are afraid unless the facts as alleged in the plaint are proved the question of application of law in the air does not arise.

19. The findings of the trial Court on these issues are based on conjectures and surmises and on no evidence and the suit has been decreed for the recovery of damages to the tune of Rs. 10,23,200 without proof by the respondent/plaintiff that they had in fact suffered the said losses as no evidence whatsoever was produced as observed above. Merely because the goods could not reach the consignee was not sufficient proof of the damages on account of loss of business, reputation etc unless the particulars of the business lost and the . loss accrued had been proved.

20. For the foregoing reasons the findings on issues 6, 7, 8, 9 and 9-A, are hereby reversed as a consequence of which this appeal is accepted and judgment B and decree passed by the trial Court in favour of the respondent set aside and the suit filed by it dismissed. 21 The connected R.F.A. filed by the plaintiff for the foregoing reason has no force which is hereby dismissed. The parties are left to bear their own costs. Q.M.H./M.A.K./H.84/L Appeal accepted.