1994 PLP 2133 (CLC)

Date of hearing: 26th April, 1994. The plaintiff appeals against judgment dated 27‑3‑1975 passed by the learned Additional District Judge, Lahore dismissing his appeal against judgment and decree dated 6‑2‑1973 passed by trial Court through which the suit filed by him had been dismissed.

2. The only point of law requiring determination in this appeal is whether the two Courts below have rightly held that the appellant failed to prove that the suit had been instituted by a duly authorised person and the plaint had been signed and verified by such a person in accordance with law are correct and does not suffer from any illegality such as misreading, mis‑construction or non‑reading of evidence.

3. The suit was filed through one Hameed Ahmad as authorised agent of the appellant/bank. According to averment in the plaint he held the authority to institute the suit, sign and verify the plaint. In corresponding fara. of the written‑statement the relevant part of the plaint in which it was pleaded that the suit had been filed through an authorised person, the same was denied for want of knowledge. The trial Court framed issues 1 and 2 with regard to this controversy which are as follows:‑‑ (1) Whether suit has not been verified and signed according to law? OPD. (2) Whether suit has been instituted by a person duly authorised on behalf of the plaintiff? OPP.

4. No evidence was produced as to when the appellant‑bank took decision through resolution for filing of the suit. Power of attorney executed in favour of Hameed Ahmad was not produced in evidence nor be was examined as witness to prove that he was authorised by the bank and had put his signatures and verified the plaint in pursuance thereof. Both the Courts below were correct in holding that the appellant failed to prove that the suit had been instituted through duly authorised person.

5. Learned counsel for the appellant submitted that since the allegations in the plaint that the suit had been filed by a duly authorised person had not been specifically denied as denial of the fact for want of knowledge was evasive and was no denial in the eye of law as such the plea raised in the plaint should be deemed to have been admitted as correct.

6. I am afraid the argument has no force. It has been provided in the evidence Act/Qanun‑e‑Shahadat that an admission is not conclusive proof of the fact admitted and that admitted facts though need not to be proved but the Court in its discretion can call upon the parties or any of the parties to prove such facts through evidence. The denial of the plea that the suit had been filed through authorised person for want of knowledge was taken and treated as denial of the said fact in the same manner as a denial in express terms, for a specific issue i.e. issue No. 2 was framed and the appellant was posted with the knowledge that he should not merely rely upon the said alleged evasive denial and was required to prove the said fact through evidence in clear terms.

7. The appellant having failed to prove issue No. 2 in particular as such the findings recorded by the two Courts below do not suffer from any illegality E therefore, the appeal has no force which is hereby dismissed with no order as to costs. H.B.T./N‑258/L Appeal dismissed.