1987 PLP 706 (PTD)

(7) Whether the present suit is not maintainable in this Court? (8) Whether defendants Nos.2 to 6 are liable to pay the disputed amount in case the above issues are proved in favour of plaintiff? (9) Relief . (10) Whether the suit is within time 9 O.P. (additional issue, treated as issue No.9) The appellant examined 13 witnesses including Arif Din respondent No.2 and relied upon some documents. Respondent No.7 appeared as his own witness. The statement of respondent No. 8 was recorded through interrogatories. Noor Hussain respondent No: 9 also entered the witness box and corroborated the contents of the plaint. The plaintiff-appellant himself did not appear as witness.

5. After thorough scrutiny of the evidence led by the parties, the learned Senior Civil Judge, by an exhaustive judgment maintained that it was neither proved that the goods of the value of Rs.81,996/4/9 were supplied by Noor Hussain & Co. to Shams Din,& Sons nor that the vouchers referred to in para 3 of the plaint were collected by the latter Firm. He further upheld the respondents' contention that S.M. Nasib had no authority either to collect the Vouchers or admit the liability, on behalf of Shams Din and issues Nos.1, 2 and 3 were, thus, answered against the appellant. Likewise, issue No.4 was decided in favour of the contesting defendants. Under issue No.5 it was held that the transfer of their claim by respondents Nos. 9 to 13 to the appellant except to the extent of the share of respondent No.l0 who was a minor, was valid. As the appellant did not produce any evidence regarding damages issue No. 6 was found against him. The trial Court's decision on issues Nos. 7 and 8 was in favour of the appellant. However, in dealing with No. 9 the Court came to the conclusion that the suit brought on 13-3-1947, was barred by time, in respect of supplies prior to 11th March 1944. Resultantly the claim rested on voucher dated 15-3-1944 for Rs.1,895/14, two vouchers each dated 17-3-1944 for Rs.6,548/7 and 2,358/14/6 and another voucher dated 18-3-1944 for Rs.644/4/6 was declared as within time. As a result of its findings on issues Nos. 1, 2 and 3 the learned trial Court dismissed the suit.

6. We have heard the learned counsel for the parties, On behalf of the appellant, learned counsel assailed the trial Court's findings on issues Nos. 1, 2 and 3 only. He referred to the testimony of Haider Ali, Muhammad Boota, Muhammad Bashir, S.M. Nasib, Master Fazal Din, Abdur Rehman and Noor Hussain. He urged that this evidence coupled with the receipt Ex.P. 5 and the copies of the Income-tax assessment orders of M/s. Shams Din & Sons, in which they admitted their liability to the Firm Noor Hussain & Co. to the tune of Rs.82,772, fully proved appellant's suit. In his submission, this evidence amply established that M/s. Noor Hussain & Co. made supplies to respondent No.l and till its dissolution, the suit amount was outstanding against this firm. According to the learned counsel; there is, enough material on the record, to justify a conclusion that S.M. Naseeb, acted as attorney for the Firm Shams Din & Sons and issued receipt Ex .P. 5, He further argued that apart from the oral evidence of the admission of their liability, by respondents Nos. 7 and 8, the admission referred by the income-tax assessment order, was incontrovertible. The learned counsel also called in question the correctness of the view taken by the learned trial Court in refusing to read the income-tax assessment orders, in evidence. In reply to these submissions the learned counsel for the respondents Nos. 7 and 8 adopted the reasoning, which influenced the impugned judgment.

7. We have examined the record to evaluate the arguments of the learned counsel for the parties. Muhammad Alam PW 1, who was clerk of the Post Office Department and was examined to prove a postal receipt dated 3-3-1947, whereby some article was despatched to the QMG Branch, New Delhi. The witness was, however, unable to state as to what was sent to the addressee tinder the said receipt. This document is, therefore, inconsequential for the purposes of the decision of the appeal. Arif Din, respondent was examined as P.W.2, but he did not support the appellant and expressed lack of knowledge, respect of all the material points. Tufail Hussain Gilani is the third witness. According to him, he is an ex-employee of another concern namely Octroi Ltd. which ran business in the Military Camp at Yale and had dealings with the firm of the contesting respondents. He stated that S.M. Nasib, was, in the service of the Firm Shams-ud-Din & Sons and his duty was to enter in the account books the receipt of the goods supplied to the said firm. He added that when Faiz Mohammad partner was present S.M. Nasib did not sign the vouchers. The witness had no personal knowledge of the debt sued for by the appellant and merely, reiterated what was claimed by Noor Hussain.

8. The appellant also produced one Haider Ali (PW.4). He was a Clerk in the Office of the Deputy Commissioner, Sialkot, and deposed, that Noor Hussain told him that Arif Din owe him money and that he might get the sum repaid to him but Arif Din contended that Faiz Muhammad and Muhammad Yousaf, respondents were responsible for clearing the liability. The witness stated that in his presence Arif Din handed over to M/s. Noor Hussain, copies of the suits in Dharam-sala and so also three copies about income-tax. He also proved the endorsement Ex.P1 on the latter dated 2-3-1947 as being in hand of Arif Din but in the cross-examination he had to concede that he could not identify Arif Din's handwriting properly. He does not appear to be an independent witness and his testimony does not create the impression, that he was the proper person to be contacted for exerting influence over Arif Din to Empress upon him to pay off the amount in question to Noor Hussain.

9. Muhammad Boota PW.5 is a tailor by profession and is resident of Sialkot. According to him, he went to Yole Camp on the invitation of Arif Din and while he was sitting at the shop of Noor Hussain, Faiz Muhammad alongwith S.M. Nasib came there and said to Noor Hussain to pass on the vouchers to S.M. Nasib and obtain a receipt from him. Accordingly he scrutinised the vouchers which showed that a sum of Rs.82,772 was due to Noor Hussain. He then issued the receipt. He further stated that in Sialkot Arif Din met Master Noor Hussain. The latter demanded the amount but Arif Din told him that Faiz Muhammad and Muhammad Yousaf respondents, acknowledged the liability of Rs,82,772 and its clearance, was, their responsibility. Before proceeding further, we may, observe that according to his own showing he was a casual visitor to Yole Camp. His narration of facts, with unusual minuteness, despite lapse of sufficient time, renders the acceptance of the testimony, is unsafe.

10. The witness is Muhammad Bashir. He is the marginal witness of the deed of dissolution of firm Noor Hussain & Co. Ex.P.3 and the assignment deed Ex.P.4 and corroborated the statement of Muhammad Boota, regarding the admission of liability by Arif Din. Abdul Hamid (PW.7) endeavoured to prove, that Arif Din acted as attorney for his father Shams Din, Riaz Ahmad (PW.8) a clerk from the office of the C.M.A. Lahore, merely produced some record. S.M. Nasib (PW.9) is the pivotal witness in this case. He explained his duties and narrated procedure for the supply of goods to Shams Din & Sons by other firms or persons, through vouchers. He claimed to have held a letter of authority from the respondent firm. He proved the receipt Ex.P.5 and further identified his signatures on two contingent bills Ex.P.7 and P.8, which had been produced by P.W.8. This witness has been dubbed by the learned trial Judge as wholly untrustworthy.

11. Abdul Aziz (P.W. 19) mentioned the facts concerning the dissolution of the firm Shams Din & Sons and further deposed that S.M. Nasib used to issue receipts on-behalf of the said firm. Muhammad Asadullah (PW 11) stated that he remained in the employment of Shams Din & Sons from the years 1943 to 1946 and when he left the service a sum of Rs.82,000 of Noor Hussain & Co. was outstanding against the firm. It is to be seen that this witness had no concern with the maintenance of accounts and as per his own statement was serving in the bakery. The 12th witness Master Fazal Din testified that towards the end of 1946, on the request of Noor Hussain, he alongwith one Syed Nisar Qutab and Hamid Asghar pleader met Faiz Muhammad, at Yole Camp, who admitted his liability and undertook to clear the same, later on. The learned Senior Civil Judge, while commenting upon the statement of this witness, has maintained that he stood surety for Arif. Din, against the interest of respondents Nos. 7 and and that Noor Hussain had no personal relations with him. The fact that Syed Nisar Qutab and Hamid Asghar were not examined by the appellant also weighed with the learned trial Court. The appellant's last witness, Abdul Rahman, asserted that a dispute arose between the partners of Shams Din and consequently, the payment to other firms including the amount of Rs.82,000/83,000 payable to Noor Hussain & Co. was withheld.

12. Noor Hussain respondent, in his statement, referred to the delivery of the vouchers, to S.M. Nasib, without payment, on the direction of Faiz Muhammad. He further emphasised that in the Income-tax Return filed by Shams Din & Sons. They disclosed a liability of Rs.8,272 to Noor Hussain & Co. He also produced the copies of the assessment orders, made by the Income Tax. Officer.

13. While appearing as his own witness, Faiz Muhammad respondent denied that S.M. Nasib was the attorney of Shams Din & Sons, or that he was authorised to receive vouchers from Noor Hussain & Co. and admit the liability. He stated that S.M. Nasib was employed with the firm as a clerk, on the salary of Rs.50 per month. He controverted the receipt of any goods from Noor Hussain & Co. against the vouchers in question. He also declined to admit the disclosure of the liability to Noor Hussain & Co. in the Income-tax record. Likewise Muhammad Yousaf respondent also refuted the appellant's claim and repelled the assertions on which the suit has been founded.

14. This is no direct evidence of the supply of the goods by Noor Hussain and Co. to the respondents. In this behalf the appellant has placed a wholesome reliance on the receipt Ex.P.5 but as maintained by the learned trial Court, the vouchers in question, are, not essentially the evidence of the fact that the goods for the recovery of the price whereof, the respondents have been sued were really supplied by Noor Hussain and Co. to the respondent firm. In the estimation of the learned trial Court, these vouchers, in fact, were, the orders for the supply of goods placed by Shams Din on the firm Noor Hussain & Co. The learned counsel for the appellant has failed to dislodge this inference. We find that there is material on the record, which renders the authenticity of Ex.P.5 as highly doubtful. In this respect, we may refer to the statement of the learned counsel; for the plaintiff-appellant, recorded by the learned trial Court, one 30-4-1948, before the framing of the issues in which he categorically, took the stand that the vouchers were collected by S.M. Nasib in! Sialkot vide receipt dated 19-3-1944. However, as already stated in the earlier part of this judgment, Muhammad Boota (PW.5) deposed that it was in his presence that S.M. Nasib came to the shop of Noor Hussain at Pole Camp. and on the asking of Faiz Muhammad respondent he collected the vouchers. On the other hand, S.M. Nasib in cross examination revealed that he did not receive any vouchers under Ex.P 5 and issued the receipt at the instance of the plaintiff as the respondent firm had peen dissolved. Thus, there are three conflicting pleas regarding the delivery of the vouchers by Noor Hussain to S. M. Nasib. The appellant's learned counsel had failed to reconcile these divergent versions. If the receipt Ex.P.5 is excluded, the entire edifice of the appellant's suit stands demolished.

15. It is in the impugned judgment, that the appellant's learned, counsel admitted before the learned trial Court, that the two vouchers dated 29-2-1944 and 18-3-1944 for Rs.962.13 and Rs. 644.46 respectively, relate to the payment of commission. In the plaint, the appellant has sued for the recovery of the value of the goods supplied to the respondent-firm, under these two vouchers, alongwith other vouchers. The learned trial Court also came to the conclusion that in the Khata of Noor Hussain and Co. these two items were shown as vouchers, but in the roznamcha, these appeared as commission. The learned trial Court thus formulated the opinion, that 3.M. Nasib issued Ex.P.5 to Noor Hussain, on the basis of the entries in his account-books and not on the strength of the original vouchers. This view of the learned trial Court does not appear to be ill-founded, and has remained unshaken.

16. The stand of the contesting respondents is that S.M. Nasib was in their employment, merely as a clerk and had no such authority to sign the vouchers, issue receipt and admit liability. After hearing the learned counsel for the parties, we find some merit in this contention. Admittedly there was no power of attorney in favour of S.M. Nasib. He claimed to have acted as agent of M/s. Shams Din and Sons on the basis of an authority letter, which has not been filed, nor any effort was made to get the same produced in evidence. Furthermore, if S. M Nasib really had dealings with the firm Noor Hussain & Co. on the strength of letter of authority, the latter, as held by the learned trial Court, should have been obtained a copy thereof from M/s. Shams Din & Sons and retained the same on their record. According to Tufail Hussain Gillani P.W.3, S.M. Nasib could sign the vouchers, only in the absence of Faiz Muhammad respondent. If Faiz Muhammad, really accompanied S.M. Nasib, to the shop of Noor Hussain, as Muhammad Boota (P.W.5) wants the Court to believe, there is no reason as to why Noor Hussain did not procure receipt from Faiz Muhammad, in case, the vouchers were actually passed on to the respondent--firm. There is no plausible explanation for the, omission to get receipt from Faiz Muhammad, which supports the respondents' contention that there was collusion between S.M. Nasib and Noor Hussain who chose his brother-in-law Abdus Salam appellant, as assignee of the debt, to file the suit against them.

17. The learned trial Court has also recorded the finding, that if the procedure, explained in his statement, by S.M. Nasib, regarding the supply of goods by the firm Noor Hussain and Co., or for that matter by other parties, to Shams Din & Sons was to be accepted, then the Roznamcha and Khata of Noor Hussain and Co, must have been signed by: S.M. Nasib in token of receipt of supplies, which according to the appellant ran into thousand of rupees. This inferential finding has also not been successfully controverted. Indeed the appellant's oral evidence, regarding the existence of authority, admission of their liability by the contesting respondents, and the, outstanding of the suit--amount against Shams Din & Sons is, not ate all reliable and has rightly been discarded by the learned trial Judge and S.M. Nasib also justifiably disbelieved by him. We entirely agree with the learned Court below that S.M. Nasib had no authority to sign the vouchers much less to admit the liability of Rs.81,996 and issue receipt Ex.P.5.

18. The appellant has also relied upon the assessment orders of Shams Din and Sons, passed by the Additional Income Tax Officer 6urdaspur, for the assessment years 1944-45, 1943-44 and 1942-43. Since the transactions, forming the subject-matter of the suit, allegedly took place during the period from 1-2-1944 to 18-3-1944, the assessment order for the year 1944-45, which covers the period from 1-4-1943 to 19-3-1944, is otherwise admissible, will alone be relevant. This order specifies the liabilities of the assessee-firm and a sum of Rs.82,772 has been mentioned therein as due to M/s. Noor Hussain and Co., This document alongwith other two assessment orders, is, said to have been delivered to Noor Hussain by Arif bin respondent but there is absolutely nothing in the latter's statement to that effect. The appellant's oral evidence, on this point too, is not credible. It is, therefore, difficult to believe that the assessment order was handed over to Noor Hussain by Arif Din.

19. It is to be noticed that this document has not been formally' exhibited and the learned trial Court has excluded it from consideration among others for the reason that as, all the partners of the firm Shams Din and Sons raised an objection to its admissibility, under section 54 of the Income Tax Act, 1922, it could not be produced in evidence. The Court was also of the view that the copy of the order was not a certified copy as it did not bear the seal of the office of the Income Tax Officer. In this context the learned trial Court referred to the answer to the interrogatories issued for the examination of the Income Tax Officer concerned.

20. The reasons which prevailed with the learned lower Court in rejecting the assessment order, are not without substance. The document does not bear the seal of the Income Tax Officer and thus, cannot be said to be a certified cop, of the public document envisage by section 76 of the Income Tax Act. As regards section 54 ibid. It excludes the evidence of contents of the documents forming part of the income-tax assessment record, unless the same fall within the exceptions given in subsection (3) thereof. Even if Arif Din handed over this document to Noor Hussain, the salve is not admissible in evidence, for one partner not to talk third party, cannot use such a document in the judicial proceedings against the other partner. The law in this point is well-settled and we may refer here with advantage to a Division Bench judgment, in the case of Promatha Nath Pramanick v. Niroda Chandra Ghose AIR 1940 Calcutta

147. The judgment deals with a dispute, in respect of their shares, between the two partners of an unregistered firm. The defendant sought to produce a copy of the Income-tax assessment order, in support of his claim. The Court observed: - "It may be that in the case of sole assessee there is no objection to his using the copy so obtained as evidence in legal proceedings if there are no other objections to its admissibility. It may reasonably be said that the provisions that an assessment order shall be treated confidential is a privilege, which an assessee may waive if he thinks fit to do so. However, it would be starting thing if a joint Assessee were to be permitted to use the copy of such an order to the detriment of his co-assessee in contentious proceedings between them. If a person who has been assessed to income-tax can object to the materials in the possession of the Income-Tax Department being disclosed, it is surely a matter of indifference whether the person who desires to make them public is a co-assessee or a stranger."

21. Earlier in Maung Po Thaung and another v. Maung E Pe and others A I R 1955 Rang. 85; it was laid down that the certified copy of Income Tax Return obtained by a person other than the assessee, is inadmissible in evidence. Similar is the view taken in Methili Ammal v. Janaki Ammal and another A I R 1940 Mad.

161. In this case, certified copies of Income Tax Return was produced in evidence, by a third party, was, not permitted to be used against the assessee. The first two judgments were followed by Patna High Court in Sm. Banarsi Devi v. Sm. Janki Devi A I R 1959 Pat. 72 to hold that the document comprising part of the assessment record cannot be produced in evidence by a third party unless the same is covered by exceptions laid down in the section itself. No law to the contrary has been cited before us by the learned counsel for the appellant. Needless to mention that the assessment order is not covered by any of the exceptions to the section. In these circumstances no fault can be found with the trial Court's exclusion of the assessment order from consideration.

22. As a result of this discussion, we find ourselves in agreement with the learned trial Court that the appellant has failed to prove that the goods of the value of Rs.81,996/4/9 were supplied by Noor Hussain & Co. to Shams Din & Sons: that the latter firm collected the vouchers from Noor Hussain and S.M. Nasib competently admitted the liability with which the respondents are now sought to be burdened under the suit. Accordingly, we uphold the trial Court's finding on issues Nos. 1, 2 and

3. As none of the counsel addressed us on other issues, the trial Court's decision on issues Nos. 4 to 8 and additional issue No. 10, is also not disturbed.

23. For the foregoing reasons, this appeal having been found without any merit, is dismissed leaving the parties to bear their own costs. M. Y.H./A-169/L Appeal dismissed.