1991 PLP 1713 (CLC)

On the basis of above pleadings of the parties, the following issues were framed:‑-- (1) What was the consideration for the plaintiffs furnishing and equipping portion of 9th Floor of Muhammadi House? (2) Which of the defendants and to what extent are they liable and accountable to the plaintiffs for the furniture, furnishing and equipment in suit? (3) Have the defendants made wrongful gain and caused wrongful loss to the plaintiff? (4) To what decree and what relief are the plaintiff entitled? The plaintiffs examined their Assistant Vice‑President namely, Mr. Ehsanul Haque, who has produced the bill of Messrs Oosman Brothers and correspondence between the parties. The plaintiffs then closed their side while the defendants have not produced any evidence. I have heard Mr. Rehmatullah Qadri, learned counsel for the plaintiffs and Mr. Shamsul Arfin, learned counsel for the defendants. ISSUES NOS.1 & 2.‑‑On these issues, the learned counsel for the plaintiffs has submitted that the evidence brought on record shows that an order was placed with Messrs Oosman Brothers for furnishing and providing equipment in the said premises for which a bill of Rs.1,32,353 has been submitted by them which is Ext.5/1 in evidence. He has further submitted that the defendant No.l exercised the dominating influence over the defendants Nos.2 and 3 also as he was Director of the defendant No.2 and also held major shares of the defendant No.3, which was a family business of the defendant No.l. The learned counsel has further pointed out that it has come on record through their witness that defendant No.l had proposed such furnishing etc. of the said premises; and that it was all done at his instance, which was being used by him for the purpose of his family concern, the defendant No.3. He has also submitted that the plaintiffs' witness has categorically stated that the payment of the said bills of Messrs Osma4 Brothers was made by the Bank. The learned counsel has further submitted that the defendant No.l himself and all the three defendants are liable to pay the said amount to the Bank and their liability is several as well as joint. Repelling the abovesaid submissions Mr. Shamsul Arfin, learned counsel for the defendants has submitted that the burden to prove these issues lies heavily on the plaintiffs and they have miserably failed to discharge the same. The learned counsel has submitted that the documents pertaining to correspondence and the bill of Messrs Oosman Brothers have not been proved by the plaintiffs as none of the writers of the said bills have been summoned or examined by the plaintiffs. It is also pointed out by the learned counsel that no one from Messrs Oosman Brothers were examined to prove the contents of bill (Ex.5/1). The learned counsel has further submitted that even the payment of the said bill has not been proved by the plaintiffs. I have considered the above submissions of the learned counsel for the parties. In the first instance, it may be observed that it is an admitted position that the said premises situate on 9th Floor of Muhammadi House were under the tenancy of defendant No.2, which were in occupation of defendant No.3 as licensee. No doubt, it is also admitted by the defendants that defendant N6.1 held major shares of the defendant No.3 which was his family concern but his case is that he had only given a proposal to the then Standard Bank for use of the said premises for the purposes of their Board and that this proposal was approved by the Board and consequently the order of furnishing etc. was placed by the Bank and, therefore, it cannot be said to be the liability of the defendant No.1. It may also be observed that the case of the defendants is that these premises were being used by the Board of the Bank for the purposes of holding their meetings etc. from 1971 till 22‑5‑1973, and that the stipulation between the parties was that the Bank used these premises without payment of any rent, licence fee or premium to be paid to any of the defendants and in consideration thereof, they will renovate the said premises as the defendant No.3, who were in occupation, were not interested in renovating the same. This fact is also admitted' by the plaintiffs' witness in his cross‑examination. This witness has further stated in his cross-examination that the terms and conditions regarding the use of‑ the office were not reduced in writing; and that there was only oral understanding between the parties. He has also admitted that the premises had not been rented out to the plaintiffs. Not only this, this witness has very categorically stated in his cross-examination that he cannot say as to what was the consideration for the use and occupation of the premises by the Bank.????? There is another aspect of the case. The plaintiffs did not produce the resolution of the Board whereby the above‑referred proposal was approved by the Board, in order to prove the terms and conditions on which the Bank had agreed to renovate the said premises. The Bank also did not produce any document to prove if the said amount is paid to Messrs Oosman Brothers. The witness of the plaintiffs has stated that on two occasions an amount of Rs.50,000 each was paid from suspense account. He has further stated that the record is available with the plaintiffs' Bank. This record has also been not produced by the plaintiffs. In these circumstances, the inference will be against the plaintiffs as provided in Article 129(g) of Qanun‑e‑Shahadat which provides that the Court may presume that the evidence which could be and is not produced, would if produce, be unfavourable to the person, who withholds it. In view of above discussion, I am inclined to hold that the plaintiffs have failed to prove these issues and both are answered against the plaintiffs. ISSUE No.3.‑‑In view of findings on Issues Nos.l and 2, this issue is also a decided against the plaintiffs and is answered in negative. ISSUE No.4.‑‑In consequence of the above findings, the present suit is dismissed with no order as to costs. H‑286/K????????????????????????????????????????????????????????????????????????????????????????????? Suit dismissed.