1980 PLP 1666 (CLC)

7-A. (a) (items Nos. IX & X). It will be convenient to take up two items of claim, vie. Rs. 28,000 and Rs. 10,000 being the amount of claim in respect of fittings, fixtures and furniture at the Karachi and Peshawar Offices respectively. For the reasons discussed hereinabove in respect of the claim for office premises. I arty inclined to hold that the deceased plaintiff was not entitled to any separate amount for the above of items. It is significant to note that no inventory for the handing over of the fittings, fixtures and furniture in respect of the two office premises was prepared. It is highly improbable chat if the deceased would have been entitled to receive a separate consideration he would not have insisted upon the preparation of an inventory and for the fixation of the valuation of the above items before handing over the above items to the promoters of the company nor any detail of the above items is given in the plaint. It may be pertinent to refer the statement of P. W. 3 Jilani at lines No. 1240 to 1255 at page 80-81 and line Nos. 2021 to 2032 at page 100 of the deposition in respect of the claim of the above items :

Lines Nos. 1240-1255 read :

"In July, 1963 the deceased did not tell me that he had sold the office premises to daily Anjam Limited. In November, 1963 1 received a voucher to credit the account of deceased Usman Azad with the value of furniture and fittings. I also received a similar voucher in November, 1963 with regard to the office furniture and fittings of the Peshawar Office. The value of the office furniture and fittings of the Karachi office shown in the voucher was Rs. 20,000 and of the Peshawar office also shown in the voucher was Rs. 10,000.' Lines Nos. 2021 to 2032 at page 100 :

Q.-You have stated before that separate account books were being maintained in respect of the Peshawar Branch at Peshawar. Hence why was the entry of Rs. 10,000 made in Karachi books ? A.-This entry was made in the Karachi books as the transfer voucher had been prepared at Karachi. I did not advise the Peshawar office about this entry of Rs. 10,000 as made in the books of the Karachi office. The above statement is consistent with the averments made by the plain tiffs in para. 5 of the plaint, which are based on the assumption that the patties did not agree upon any amount for the items mentioned in the aforesaid para 5 of the plaint and that the estimated cost of the said item was Rs. 4,34,635.05. It was urged by Mr. Zari in respect of the above two items and in relation to other items that the evidence inconsis tent with the pleadings may be ignored. In support of his above conten tion, he has referred to the case of Pakistan v. Abdul Ghani (P L D 1964 S C 68),- M/s. Chowdhary Brothers Ltd. v. Jaranwala Central Cooperative Bank Ltd. (1968 S C M R 804), Hussain v. Mansoor Ali and 5 others (P L D 1977 Kar. 320), Mahagu and another v. Narayan and others (A I R 1952 Nag. 60), Govind Singh and another v. Mungaji (A I R 1920 Nag. 147), Abdul Aziz v. Abdul Rozaq (P L D1971 Azad J & K 20) and the case of Yousuf v. Hashimbaoy 8c Co. and others (P L D 1966 Kar. 456). (b) In the aforesaid Supreme Court case of 1964, it has been held that the plaintiff is. not entitled to rely on the defendant's pleadings and that a ground not taken in the plaint cannot be urged. Whereas in the said Supreme Court case of 1968, it has been held that no evidence can be allowed on the facts neither raised in the pleadings nor incorporated in the issues. In the Karachi case of 1977 it was urged that Quaid-i-Azam was neither a. Shia nor a Sunni but a simple Muslim. it was held that as no such plea was raised in the pleadings the Court was not bound to decide the above question. Whereas in the case of 1952 Nagpur, it was held that no evidence could be allowed on a material fact not pleaded. Similarly in the earlier case of Nagpur of 1922, it was held that any plead ing contravening Order VI, rule 7, C. P. C. was liable to be ignored. Referring to the aforesaid case of Azad Jammu & Kashmir of 1971, it may be observed that in the said case, it was held that a plaintiff could not be allowed to succeed on a ground not taken in plaint or replication. Whereas in the aforesaid Karachi case of 1966 it was held that a party. could not prove case different from that has been pleaded. (c) In my view, the above rulings support the contention of Mr. Zari that the case set up by the plaintiff' to the plaint was that there was no agreement. between the parties about the consideration in respect of the items mentioned in para 5 of the plaint, but whereas P.W. 3 Jilani has come out with the above-quoted statement which presumes that there was an agreement between the parties and that on the basis of the said agree ment two vouchers for the two amounts were given for crediting the same in the account books. It is also not understandable as to why the credit entries were to be made for the above items in November, 1963 when fixtures, fittings and furniture were handed over to the promoters on 10th August, 1963 with retrospective effect. Even otherwise, the evidence produced by the plaintiff is not sufficient to conclude that the values of fixtures, fittings and furniture were Rs. 20,000 and Rs. 10,000 of the Karachi and Peshawar offices respec tively. In view of the above discussion 1 hold that the plaintiff are not entitled to and amount in respect of the above items.. 8. (a) Items No. (iv) Salary July/August, 1963 Rs. for Karachi office 44,000 & (v) Salary July, to November, 1963 for Peshawar offices 36,000 In para. 7 of the plaint it has been averred that deceased Muhammad Usman Azad had also paid salary of the staff amounting to Rs. 80,

000. In the statement of the claim dated 5th September, 1967 (which is marked as Annexure A) filed before the Commissioner, the description of the above two items given is as follows :- "Salary of Karachi office for July, 1963 and Rs. August, 1963 paid direct to Messrs Hyesons 44,000 Commercial Industries Ltd. by the deceased himself. Salary of Peshawar Branch for July, 1963 to November, 1963 paid direct to Messrs 36,000 Hyesons Ltd. by the deceased himself. It may be observed that the above statement before the Commissioner was quite inconsistent with the plea taken in para. 7 of the plaint, which was that the deceased Sheikh Muhammad Usman Azad had also paid salary of the staff amounting to Rs. 80,

000. In support of the above claim the plaintiffs have relied upon the oral evidence of f'. Ws. I and 3, bdul Waheed Qureshi and Jilani respectively. P. W. 3, at line No. 668-680 at page 65-6G has deposed that in December, 1963 he had credited the account of the deceased with Rs. 44,000 and debited this amount to the account of defendant No 1 and that this entry was made by hire on the basis of the vouchers received by him. He goes on to say that the item of Rs. 44,000 shown in the statement of accounts as salary of July and August, 1963 of the Karachi offices had been paid by deceased Usman to defendant No. 1 and had beer entered by him in the cash book, and that a sum of Rs. 36.000 was paid by the deceased Usman to defendant No. 1 being the salary of the Peshawar Branch for July, to November. 1963. In this regard it may be pertinent to refer to the statement of P. W. 1 Waheed Qureshi at lines 1000 to 1028 at pages 26-27 where he has deposed as follows :- "After October, 1963 the salary of the stall' of daily Anjam was not paid by the deceased Usman Azad. I am shown page 37 of the cash book Exh. P. 1/4 and I state that the debit entry of Rs. 20,558.89 shown therein as `staff pay for July, 1963' is in the handwriting of Muhammad Idris Sbah Jilani; and is correct Entry is produced as Ex. P. 1/17. I am shown page 65 of the cash book Exh. PF 1/4 and state that the debit entry therein for Rs. 21,263.20 as staff' salary of August 1963, is in the hand writing of Idris Shah and is correct. Entry is produced as Exh. P. 1/18. I am shown at page 65 of cash book Exh. P. for Rs. 21, 963.20 which reads as cash received from Hyesons Commercial Industrial Corporation for the staff salary, Entry is produced as Exh. P. 1/19. It is in the handwriting of Idris Jilani. I am shown page 89 of ledger Exh. P. 1/15 and I state that the two debit entries shown therein for Rs. 20, 558..88 and Rs, 21,263,20 are the corresponding entries to Exhs P.//17 and P 1/18 shown in the cash book Exh. P. 1/4. Entries is Produced as Exhs. P. 1/20 and F. 1/21." A perusal of the above quoted statements clearly shows that salary foe the months of July-August, 1963 was paid by defendant No.

1. I have examined Exh. P. 1/4 cash book Exh. P. 1/5 ledger containing the above debit and credit entries which are exhibited as Exh. P. 1/17, p. 1/18 and P. 1/9. It is also an admitted position that the above account books are in the handwriting of P. W.

3. In the plaint as pointed out herein above it has been averred that :lie deceased hail paid the salary to the staff but whereas P. Ws. 1 and 3 in their depositions have come out with the assertion that though the salary to the staff but this amount was paid back by the deceased to defendant No.

1. It appears that in order to overcome the accounts books viz Exh. P. 1/4 and Exh. P. 1/5 which were written by P. W. 3 himself, the above wit nesses have come out with the allegation that the above amount was refunded back by the deceased to defendant No.

1. Since the above state ment is in conflict with the pleadings it is liable to be ignored. Even otherwise, the above allegation of P. Ws. 1 and 3 does not stand to reason as it has not been explained as to why the deceased had refunded the amount of salary of the staff for the two months in question to defendant No. 1. (b) Reverting to the second item viz. Rs. 36,000 in respect of the staff salary of the Peshawar office, it may be pertinent to mention that it has come sin the record that till January 1964, defendant No. 6. that is, Anjam Ltd., did not have any bank account and, therefore, the old account maintained with M/s. Australasia Sank Ltd., was operated upon by the deceased plaintiff during the period from July 1963 till the time the account was opened in the name of the limited company. Under clauses 6 of the agreement, the deceased plaintiff was liable to discharge all debits and liabilities contractual or otherwise for the period ending on 3 June, 1963. Similarly he was entitled to receive recoveries in respect the claim contractual or otherwise for the period prior to 1st July, 1963. It may by observed that in respect of the above item, P. Ws. 1 and 3 have deposed that this amount was paid by deceased Usman Azad to defendant No. I whereas is para. 7 referred to herein above, the averment was that the deceased had paid the salary to the staff. The above statements are therefore in conflict with the pleadings. Whereas fayaz Mouji at-Lines Nos.310-371 at pages 150-155 has deposed as follows :-- ` A salary account was maintained in respect of Peshawar branch. This account is at pages 270 to 271 of the ledger Exh. P. 3/13. I produce Exh. P. 3/13 I produce this account as Exh. D. 2/5. The account Exh. D. 2/5 commences on 1st July, 1963 and ends on 31st December 1963. the salary paid from 1st July, 1963 till 31st December, 1963. appear in the account Exh. D. 2/5. From the account Exh. D. 2/5 1 state that the salary for July, 1963 was paid on 10th August, 1963. the amount paid was Rs. 7,815.16. The salary for July 1963 was paid by daily Anjam Ltd. Q.

It is alleged that the salary for July, 1963 had been paid by deceased Usman Azad from his own pocket. Does the account Exh. D. 2/5 show this ? A.

The account Exh D. 2/5 does not show this. For the months of August, September October, November and December, 1963 daily Anjam Ltd. Paid the salary to the staff of the Peshawar Branch. The salaries paid per month are shown in the account Exh. D 2/5 and are as follows-- Rs. August, 1963 7656.38 September, 7392.29 October, 7929.93 November, 7824.17 December, 5901.75 The account Exh. D. 2/5 shows that the salaries from August, 1963 till and inclusive of December, 1963 were paid by the daily Anjam Ltd." It may be observed that the accounts books relating to Peshawar office Exhs. D-1/1 and P-31/ 3 were proved by the defendants through D. W. 1 Ahdur Rehman. The statement of accounts in respect of Peshawar office filed by the defendants, Exh. D-2/2 indicates that the deceased plaintiff was entitled to receive a sum of Rs. 68,288.89 in respect of the following items ;-- Rs. Newsprint stock. 33,320.00 Payment of the bills in respect of the period prior to July 15163 received during July to December 1965 27,866.87 Loan and advances from June 1963 salary record 1,258.S0 Rents of shops 2,200.00 Office rent July-December 1963 3,000.00 Cash balance in hand 643.00 Against the above sum of Rs. 68,288.39 an amount of Rs. 25,442 has been debited which inter alia includes a sum of Rs. 8,408.25 being the amount of salary for June 1963 which. was paid by the defendants, though it was payable by the deceased plaintiff. Whereas Exh. D-2/3, which is another statement of account filed by the defendants in respect of the deceased's account of Karachi office, indicates that the deceased was entitled to receive a sum of Rs. 1,80,346.48 against which a sum of its. 71,173.97 in respect of the 6 items mentioned ;n the debit column has been adjusted. It may be observed that one of the items on the credit side, (the total of which is the aforesaid amount, viz. Rs. 1,80,346.48 mentioned by me earlier) is a sum of Rs. 84,019.88, which has been described as follows :

Cheque paid by Mr. Usman Azad for expenses Rs. 29/7 and 24/ 10. 84,019.88 The above-quoted entry indicates that the deceased had paid for expenses for which he was given the credit of the above sum. In view of the above discussions I am of the view that the plaintiffs are not entitled to any additional amount in respect of the above two items. 9. (a) Items Nos. (vi) Misc. expenses at Karachi. Rs. 32,000 (vii) Misc. expenses at Peshawar. Rs. 3,000 In support of the above claim the plaintiffs have relied upon the evidence of P. Ws. 1 and

3. P. W. 1 in his examination-in-chief has deposed that all the expenses of daily Anjam Karachi.-July/August, 1963 were borne by the deceased Usman Azad from his own account. The total miscellaneous expenses for Karachi for July/August were about Rs. 35,000 whereas at lines No. 729-756 at pages 19-21) he has deposed as follows :

"I am shown cash book page 35 and I state that the following credit entries appearing therein all relate to Misc. expenses, viz. :

Entry for Rs. 559.19 ,, 558.08 ,, 200.00 106.40 ., 150.00 940.00 1000.00 ,. 3009.70 2000.00 Entry marked Exh. P-1/14. I am shown cash book page 99 and I state that the credit entry, for Rs. 20,000 in favour of the deceased Usman relates to Misc. Expenses. Entry marked Exh. P-1/

15. I am shown cask book page 129 and I state that the' credit entry for Rs. 400 shown as paid to Romeo Ltd. is for miscellaneous expenses. Entry marked Exh. P-1/16. 1 state that the total of the items shown in Exhs. P-1/14, P-1/15 and P-1/16 amounts to Rs. 30,769.88." From the above-quoted statement of P. W. 1, it is clear that the deceased was given a credit of Rs. 20,000 on account of miscellaneous expenses. P. W. 3 has deposed that he had given credit entry to the deceased for Rs. 32,000 and Rs. 3,000 in respect of Miscellaneous expenses of Karachi and Peshawar in November 1963 in the books for 25th October 1963 to 31st December 1963 maintained by him. In the cross-examina tion at line No: 4118, page 103 he has deposed that he cannot state as to what miscellaneous expenses on postage, folding charges, etc. had been incurred at Peshawar from let July 1963 to 31st De(ember 1963. Whereas Fayaz Mouji at line No. 372 onwards at page 151 has deposed as follows :-.- "From let July 1963 all miscellaneous expenses of the Peshawar branch were paid by daily Anjam Ltd. These miscellaneous expenses have been styled as 'general expenses' in the ledger Exh. P-3/3 and appear at pages 146 to 151 of this ledger a produce the amount of general expenses marked as Exh. D-2/6 and appear at ledger Exh. P-3/13. The general expenses as shown in Exh. D-2/6 amount to Rs. 955.62 and for the period 1st July 3963 till 31st December, 1963. The account Exh. D-2/6 does not show that deceased Usman Azad had paid the "general expenses of the Peshawar branch from July 1963 till December 1963'." (b) From the above statements of the witnesses, it appears that in fact the deceased plaintiff had incurred certain expenses though there is discrepancy in the amount. As pointed out by me hereinabove that in Exh, D-2/3 the defendants have given credit for a sum of Rs. 84,019.88 on account of cheque paid by Mr. Usman Azad for expenses 29/7 - 24/10. Even the cash book at page 99 which was confronted to P. W. 1 indicates that a credit entry for Rs. 20,000 in favour of the deceased was given, cite above entry is marked Exh. P 1(

15. In my view, the plaintiffs are not entitled to receive any amount in addition to Rs. 94,019.88, for which the deceased plaintiff was given credit. I intend to deal with the question as to whether the plaintiffs have received the total amount mentioned in Exh. D-2/3, hater on hereinbelow in para. 12.

10. Item No. (vii). For printing at Peshawar. Rs. 15,

000. It may be observed that this item was not claimed is the plaint. However, when the matter was referred to the Commissioner, the break-up of the calico given by the plaintiffs included the above item. Since this amount is not a part of the claim in the suit it does not require any adju dication being beyond the pleading. Even otherwise, the plaintiffs have failed to establish this item of the claim. It may be observed that the above amount was allegedly paid by the deceased to Super Art Press Ltd. in respect of Printing charges of Peshawar. P. W. 1 has deposed at line No. 625 at page 16 that the owners of the Super Art Press are the Super Art Engravers Ltd. and that is 1963, the Managing Director of the latter company was the deceased Usman Azad. P. W. 4 Raisuddin was examined by the plaintiff to grove the payment of the above amount, what an employee of the Super Art Press at the relevant time. He has deposed that the amount of Rs. 15,000 has been handed over to him by deceased Usman Azad at the premises of Super Art Press Ltd. and that no body else was present where the deceased handed over Rs. 15,

000. In the cross-examination the above witness admitted that he was at no time the manager of Super Art Press Ltd. and that he load appeared before the Commissioner in response to a summon issued in the name of ex-manager Super Art Press. Whereas P. W. 3 has deposed that he did not know that who had received Rs. 15,000 on behalf of Messrs Super Art Engravers Ltd. It is an admitted position that the plaintiffs have not produced any documentary evidence in support of the above claim. On the basis of the above oral evidence it cannot be concluded that the plaintiffs are entitled to recover the above sum. 11. (a) Before taking up the question, as to whether the deceased plaintiff was paid full amount by the defendants, it would be appropriate that I may dispose of Mr. Zari's objection about the competency of the above suit which he urged after concluding his arguments on merits of the case. It was urged by Mr. Zari that the above suit was dismissed for non-prosecution on 25th April 1966 and that against the above dismissal order, the Official Assignee, who was appointed as the receiver in the administration suit pertaining to the estate of the deceased plaintiff, vie. Suit No. 97/66, filed an application under Order IX, rule 9, C. P. C. which wa not competent. His further submission was that though the defen ds is had raised this objection in the counter affidavit to the above application under Order IX, rule 9, C.P.C. and though the above objection was overruled by the order dated 12th September 1966, whereby the above suit was restored, this Court is competent to go into the above question again as the above order, according to Mr. lark is nullity in law. He has also urged that after the death of the deceased plaintiff, the widow was not impleaded as a party and, therefore, the suit was incompetent. His further submission was that in any case Mr. Afzal Nabi had not filed power of attorney in favour of plaintiff No. 3 who had signed vakalat nama in his favour for himself and as the attorney for the other legal heirs, and, therefore, the suit was not competent as all the legal re presentatives were not before the Court. (b) Reverting to the first contention of Mr. Zari that the Official Assignee was not competent to file the aforesaid application under Order IX, rule 9, C. P. C. (C. M. A 1071/66), it may be observed that the above contentions devoid of any force as I had sent for the file of Suit No. 97166, which indicates that by the order dated 28th April 1966. the appointment of the Official Assignee as the receiver was confirmed and in para. 6 of the said order it was expressly provided that the Official Assignee was empowered to manage the assets of the deceased and to make recoveries. In my view the order empowered the Official Assignee to prosecute the pending legal proceeding, in which any claim was involved. Even otherwise I am not competent to review the order dated 12th September, 1966 passed in the above suit, whereby the Receiver's Above application under Order IX, rule

9. C. P. C. was granted. A perusal of the above order shows that the defendants had raised the above objection before the learned Judge (Feroze Nana, J.) but the above objection was expressly rejected. If the defendants were aggrieved by the above order, they should have filed appropriate legal proceeding against the same. Mr. Zari's contention that the above order being nullity in law can be ignored by this Court, in my view, is un tenable, as the above restoration order cannot be termed as a void order. The Court was competent to restore the suit and by doing so it acted with its power. Mr. Zari has referred to the case of Tolaram v. Custodian of Evacuee Property, Karachi (P L D 1964 S C 89), wherein an observation to the effect that "if an order be nullity then every Court before whom it is brought is not only entitled but bound to ignore it", was made. In my view, the above .ruling has no application to the instant case as the aforesaid order dated l2th September 1966 cannot be termed as an order void or an order in nullity in law. Furthermore, since now the legal heirs are prosecut ing the above suit, after the discharge of the receiver the above objection cannot be pressed into service at this stage. (c) Referring to Mr. Zari's contention that the widow was not impleaded as a legal representative in the amended plaint, it may be observed that the amended plaint was filed on 5th December,. 1964, whereas the defendants filed their written statement on 26th January, 1965, but no objection to the effect that the suit was bad because of non-joinder of the widow of the deceased was taken. Therefore, no issue was framed on the above point. At this stage after the expiry of nearly 15 years the defendants cannot be permitted to raise this 'objection, and that too after the submission of the arguments for a number of days on the merits of the suit. Even otherwise, the above objection appears to be devoid of any force as the widow was very much before the Court as she was appointed by the Court on 16th January, 1967, as the next friend for the minor children in place of their uncle, but she did not choose to become a party to the suit in her personal capacity. (d) Reverting to the last objection that Mr. Afzal Nabi had not filed the powers of attornies in favour of plaintiff No. 3 from the other plaintiffs, it may be observed that Mr. Afzal Nabi submitted 4 original powers of attornies in the Court on 7th November, 1997 and after examining the same Mr. Zari candidly submitted that the above powers of attornies were in order. 12. (a) Referring to the question, as to whether the deceased plaintiff had received full payment of the amount due to him, it may be observed that the defendants have filed two statements of account of the deceased plaintiff, that is Exh. D-2/2 pertaining to the Peshawar Office and Exh. D-2/3 pertaining to the Karachi Office. According to Exh. D-2/2 the deceased plaintiff was entitled to a sum of Rs. 68,288.39 in respect of newsprint and other items mentioned therein, but according to the above statement a sum of Rs. 25,422 was debited against the. above amount in respect of the various items mentioned at the debit side of the above statement. Thus according to the above statement Exh. D-2/2 the deceased plaintiff was entitled to receive a sum of Rs. 42,846.39 an respect of the Peshawar office. Referring to Exh. D-2/3, it may be observed that in the above state ment on the credit side it has been shown that the deceased plaintiff was entitled to receive a sum of Rs. 1,80,346 in respect of the price of news print, and for the cheque paid by the deceased for expenses 29(7 - 24/10 etc. Whereas on the debit side of the said statement it is shown that the deceased plaintiff was liable to pay a sum of Rs. 71,173.97 in respect of the 5 items mentioned therein. Thus the deceased plaintiff was entitled to receive a sure of Rs. 1,09,172.51 in respect of the Karachi office after adjusting the aforesaid sum of Rs. 71,173.97. In other words, according to the above two statements the deceased plaintiff was entitled to a sum of Rs. 1,52,018.90. In Exh. D-2/3, the defendants have debited a sum of Rs. 1.20,000 against the above amount without any detail of the date or mode c/f the alleged payment. After adjusting the above sum of Rs. 1,20,0 the defendants had shown a balance of Rs. 32,018.90, for which ,(mount a cheque was sent by the defendants through their Advocates :letter dated 18th April, 1964 in response to the deceased plaintiff's legal notice dated 31st March, 1964. Therefore, according to the defendants they have paid full amount - to the deceased plaintiff: It may be observed that the above amount payable by the defendants was in addition to Rs. 1 lac provided for the consideration for the goodwill of the business of daily Anjam as per clause (3) of the agreement Exh. P-1/2. (b) 1t may be advantageous to reproduce the summary given in Exh. D-2/3, which reads as follows Karachi .Peshawar Karachi Peshawar Dr. Dr: Cr. Cr. 71,173.97 25,442.00 1,80,346.48 68,288.33 Total Debit Tout Credit Balance 96,615.97 2,48,634.17 1,52,018.90 Paid amount Dr. 1,20,000.00 32,018.90 A perusal of the above=quoted summary indicates that only des cription against the alleged payment of Rs. 1,20,000 is "Paid Amount Dr". It is an admitted position that tire defendants have neither produced any receipt of the deceased nor any cheque pertaining to the above payment. However, reliance was placed on an entry at page 26 of the ledger Exh. P-1/1 in the account of "Usman .Azad A/,; Nc. 2" which reads as follows "Month and date Particulars Folio Debit Rs. P. December 31 HCIC 13 1,20,000.00." According to the above entry R4. 1,20,000 was paid by m/s. Hye sons Commercial and Industrial Corporation Ltd.. (that is bar defendant No. 1 in the suit) on 31st December, 1964 to the deceased. There is a reference to Folio 13 which refers to page 13 of the Journal Exh. P-1/2, At 15 page 13 of the Journal Exit. p-1/4 there t3 no corresponding entry to the above debit entry of the ledger of Rs. 1,20,000 in the; account of the deceased plaintiff. However, when D. W. 2 Fayaz Mouji was asked by the learned counsel for the plaintiffs in the cross-examination before the Commissioner about the above discrepancy Inc relied upon the entry at page 13 of the aforesaid Journal marked as Exh. P.-3/19, which reads as fulloVls :

"Month and Particulars Voucher Folio Debit Credit Date 30th December, Expenses incurred ... ... ... ... 1964 by HCIC on behalf of Sun. Sunderies 2,76,052.10 HIC 50 60 ... 1,76,052,20 Share Corporation amount of various expenses in and by HCIC for daily Anjam. 1,20,000" According to D. W. 2 Fayaz Mouji, the above sum of Rs. 2,76,052.20 included the aforesaid Rs. 1,20,000 debited in the ledger at page; 26 Exh. P-3/2 of Exh 13-1/1. From the above quoted entry from the Journal, it is clear that there is a reference to voucher No. 50, which has not been produced. It is also clear from the above two accounts books that the alleged payment was made by defendant No.

1. In support of the above entries, the defendants have examined D. W. 2 Fayaz Mouji. It may be pertinent to refer to his statement on the above point at line No. 2214 he has deposed as follows :

"I am shows the account of Exh. P-3/2 off the deceased Muhammad Usman Azad appearing at page 26 of the ledger Exh. P.1/1 and 1 state that the debit item of Rs. 1,20,000 dated 31st De cember, 1963 shown in the account Frh. P-3-2 has been posted front the Journal Exh. P-1/2 and has been consolidated with, the item of Rs. 2,76,000 shown at page 13 Journal Exh. P-1/2 and already marked as Exh. P-3/19." At Line No. 2250 the above witness has further deposed as under :

"The debit item of Rs. 1,20,000 dated 31st December 1963 and shown in the account of the deceased Exh;3;/2 has been paid to the deceased by defendant No. 1, but I do not know whether by cheque of by cash. I had made this entry in the advice that I had received. Since the amount of Rs. 1,20,CO0 had been paid by defendant No. 1 to the deceased and not by daily Anjam Ltd. to the deceased, the amount was shown in the Journal Exh. P-1/2 of daily Anjam Ltd. I do not remember the date whey the amount of Rs. 1,20,000 had been shown in the debit advice received by me as having been laid by the defendant No. 1 to the deceased. I do not remember the date, when I had received the debit advice regarding the item of Rs. 1,20;

000. From the above quoted statement of D W 1, it is clear that the above witness had nothing to do with the alleged payment of the aforesaid amount of 1,20,000 to the deceased plaintiff fie way unable even to say whether the above amount was paid in cash r through a cheque nor he was able to remember the date. He wits also unable to produce the alleged advice received by him. (c) Even if it is to be held that the above account books Exh. P-1/1 and P-1/2 were regularly kept in the course of business, the above entry would not be sufficient to prove the alleged payment it) the deceased plaintiff. In this regard it will be advantageous to refer to section 34 of the Evidence Act, which reads as follows :-. "

34. Entries in the books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire, but such statement shall not alone be sufficient evidence to charge any person with liability." A persual of the above-quoted section indicates that in order to charge any person with the liability, an entry in the books of account regularly kept in the course of business is not sufficient but some corroboration 14 required. In the instant case, the alleged payment was made by Messrs, Hyesons Commercial & Industrial Corporation Ltd the defendant No. 1, no body has appeared on behalf of the said defendant to prove the alleged payment in order to corroborate the above entry. Even the account books of defendant No. 1 indicating the alleged payment have not been produced. No voucher or charge has been produced. It is highly improbable that the defendants would have paid in cash the above sum without obtaining a receipt from the deceased. Normally, such big pay ments are made through cross cheques when they are intended to discharge sortie contractual obligation. The above sum was payable to the deceas ed plaintiff in respect of the various items, news print, the amount advanced by him, etc. and therefore, it was incumbent upon the defen dants to secure a proper receipt. A limited company is required to main. that vouchers and receipts for the purpose of audit. It is not under standable as to why no receipt for the aforesaid alleged payment was obtained. In this regard it may be pertinent to point out that the deceased plaintiff had served a legal notice dated 30th March, 1964 in respect of the suit claim, which was replied to by the defendants through their Advocate's letter dated 18th April, 1964 and whereby a statement of account showing debit and credit entries was forwarded. It may be observed that according to the learned counsel for the defendants, Exhs. D-2/2 and D-2/3 were sent to the deceased plaintiff. It may be stated that the defendants' aforesaid reply dated 18th April, 1964 was replied to by the deceased plaintiff through his Advocate's letter dated 30th April, 1964 and in para. 7 of the above letter the following averment was made :- "That para. numbered 6 of your letter under reply is denied. The account sent by you is also incorrect and is denied. In parti cular it is denied that your clients paid a sum of Rs. 1,26,000 to our client. It is significant that the date and mode of pay ment has not been mentioned in the account sent by you in respect of this item when in respect of all other items the date and mode of payment has been clearly indicated in the account sent by you. You have further sent no accounts whatsoever with respect to Anjam Peshawar .and have only made a debit and credit entry with respects to the account of Peshawar This is to call upon your clients to give full and further parti culars of the accounts in these respects. Your clients further have not accounted for 2440 reams news prints valued at Rs.36,600 taken over by your clients on 30th June, 1963 through Abdullah Shamim, your representative acting for the Managing Director Daily Anjam. The cheque of Rs. 32;018.90 sent by you has been retained by our client without prejudice and in part payment of the claim of our client against your client." A persual of the above-quoted para. shows that at the first oppor tunity the deceased plaintiff specifically denied the receipt of Rs. 1,20,000 and pointed out to the defendants that neither the date nor the mode of payment was specified in the statement of accounts in respect of the above item. Apparently the above letter was not replied to by the defendants as they have not filed any reply. In view of the above specific denial as far back as in April 1974 it was more incumbent upon the defendants to prove the alleged payment of Rs. 1,20.000 by furnishing corroborative evi dence. D. W. Fayaz does not provide any corroboration to prove the alleged payment of Rs, 1,20,000. (d) It may also be pertinent to point out that the deceased plaintiff sent a legal notice dated 31st March 1964 addressed to defendants Nos. 3 and 6 pointing out that except for one meeting to be held on 17th September 1963 he had not received any notice for any other meeting of the Board of Directors. He also requested for the minutes of the meet ing held on 17th September, 1963. The contents of the above letter indicate that the deceased plaintiff and the defendants were not on good terms since September 1963 and, therefore, it does not stand to reason that defendant No. 1 would have paid a sum of Rs. 1,20,000 to the deceased plaintiff without even obtaining a receipt. It may also be mentioned that the learned counsel for the defendants at one stage of the arguments had urged that though the defendants were not obliged to pay any separate consideration for the offices premises discussed hereinabove in para. 6, but probably the aforesaid entry for the payment of Rs. 1,20,000 represented payment for the offices premises, but when his attention was drawn to the fact that the aforesaid amount was adjusted against the deceased plaintiff's entitlement reflected in Exhs. D-2/2 and D-2/3, he did not press the above arguments. But the fact that the above argument was advanced reflects upon the vagueness of the alleged payment. I am therefore, constrained to hold that the respondents have failed to prove the payment of the above amount to the deceased plaintiff. (e) In view of the above discussion on the basis of the defendant's own statement of accounts Exh. D-2/2 and D-2/3, the plaintiffs are entitled to recover the following amounts :- (a) Rs. 3380 being the amount unilaterally reduced for the price of the news print discussed hereinabove in para. (5)(a). It may be noted that the burden of proof that the above reduction was justified because of the then prevalent market rates was on the defendants which they have faded to discharge. (b)Rs. 1,20,000 the payment of which the defendants had failed to establish for the reason mentioned hereinabove. Total : Rs. 1,,23,380 13. (a) The only question which remains to be considered is, whether the decree is to be passed against all or anyone on more of to defendants. It may be observed that in the written statement the defendants have not raised any plea to the effect that the decree cannot be passed against any one or more defendants and therefore, no issue was framed on the above point when 19 issues were adopted. The learned counsel for the parties had also not addressed any argument on the above point. However, by an order dated 7th November, 1979 I asked the learned counsel for the parties to submit their arguments on the above question. It was urged by Afzal Nabi that it was a transaction of outright sale by the deceased plaintiff to the defendants. It was further urged by him that the defendants had not raised any plea to the effect that the decree if any could not be passed against any of the defendants. On the other band, Mr. Zari has urged that in pursuance of his two applications viz. an applica tion under Order VII, rule 11, C. P. C. (C.M.A. No. 307/67) and an appli cation under Order XIV, rule 2, C. P. C. (C.M.A. No. 349/67) the follow ing additional issue was framed by an order dated 23rd February, 1967:- "Whether the entire suit is based on agreement dated 10th August. 1963 and if so whether the suit is competent in view of the fact that the agreement was before the incorporation of the daily Anjam Ltd." ? However, his further submission was that the agreement was enforceable against defendant No. 6 by virtue of sections 23(h) and 27(e) of the Specific Relief Act, and also because it was adopted by defendant No. 6. (b) Mr. Afzal Nabi in support of his above contention has referred to the deceased plaintiff's legal notice dated 31st March, 1964 at page 679 of the handwritten evidence's file and the defendant's reply dated 18th April, 1964 at page 685 of the aforesaid file and the fact that cheque of Rs. 32,018.90 was given on behalf of the defendants. He has also refer red to the various paras of the written statement, particularly paras. 1, 2, 4, 6 and 7 and also the counter-affidavit dated 10th September, sworn by one Abdul Majid Hakim as the general advisor to the defendant and filed to oppose the plaintiffs' injunction application. It is correct that the deceased plaintiff had sent his aforesaid legal notice dated 31st March, 1964 addressed to all the defendants and that the aforesaid reply dated 18th April, 1964 was also on behalf of all the defendants, wherein it was not averred that except M/s. Daily Anjam Ltd., other addressees of the legal notice were not concerned. It is also true that in the written state ment, no distinction has been made between defendant No. 6, that is daily Anjam Limited, and the other defendants. On the contrary, the averments indicate that all the defendants had treated the liability as joint. In this regard reference to the following extract from paras. 1, 2, 4, 6 and 8 of the written statement may be pertinent :- "(1) the defendants through their Advocate's letter dated 18th April, 1964 tendered a cheque No. CAY 869285 dated 15th April, 1964 for Rs. 32,018.90 to Sh. Usman Azad, the deceased plaintiff, on the explicit condition that the same was in full and final settlement of all claims of the said deceased against the defendants ...As the said payment was made in full satisfaction of all the claims of the deceased against the defendants, the said deceased/plaintiffs have no cause of action against the defendants. (2) The suit is barred by sections 21 and 56 of the Specific Relief Act, as the plaintiffs' claim in this suit for the recovery of the price of the property sold to the defendants. (4) that the defendants agreed to pay to Shaikh Usman Azad deceased plaintiff a sum of Rs. 1,00,000. ....the said deceased sold and the defendants did purchase all the business of publishing the "Daily Anjam" at Karachi and Peshawar , (6) the defendants have paid for all these items and have also paid the salaries to the staff and incurred miscellaneous expenses themselves. The defendants maintain regular books of account and have sent a statement of account of the said deceased along with their letter dated 13th April, 1964 . .....The said deceased accepted the cheque knowing fully well that the cheque was tendered on the specific condition that it was in full and final settlement of all his claim against the defendants. (8)...... It is denied that a sum of Rs. 5,32,004.77 is due to the plaintiffs from the defendants " The above averments have been reiterated by aforesaid Abdul Majid Hakim, anneal advisor to the defendants, in his aforesaid counter affidavit dated 10th September, 1964. (c) It was urged by the learned counsel for the plaintiffs that in view of the above admission on the part of the defendants, this point cannot be reopened at this stage after the recording of the evidence and after the conclusion of the arguments on merits. On the other hand it has been submitted by Mr. Zari, that in England the law is that a pro motor's agreement is not enforceable unless the company enters into a fresh agreement or it can be inferred from the conduct of the parties that they entered into a contract and that whereas in Indo-Pak a pro. motors' agreement is enforceable by virtue of the provisions of the afore said sections 23(h) and 27(e) of the Specific Relief Act. It may be observed that the above contention of the learned counsel for the defen dants was inn conflict/inconsistent with the averment contained in the defendant's aforesaid two applications to the effect that the agreement was not enforceable, on the basis of which an additional issue quoted hereinahove was framed. In my view, sections 23(h) and 27(e) of the Spec:: Relief Act over the case of a public limited company but private limited companies are outside the ambit of the above provisions, as the words "a public company" have been used and not the words " company" or "a public or private limited company" in the above clauses of the aforesaid two sections. In this regard a reference may be made the case of Dalmia Jain Co. Ltd. v. Kalyanpore Lime Works Ltd. (A I R 1952 Fat. 393), wherein a Rivision Beach while considering the provision of section 23(g) of the Specific Relief Act was pleaded to hold that the above pro vision is confined to the case of an amalgamation of public companies. 'public company" have been used in section 23(g) as well in section 23(h) and, therefore, the above ruling is applicable on all fours to Me instant case Similarly, the words "a public company" hay been used in clauses (d) and (e) of section 27, which correspond to the aforesaid clauses (g) and (h) of section 23 and, therefore, it roust follow 'shat section 27(e) hops not cover a case of a private limited company. (d) In the instant case, Daily Anjam Ltd., was a private limited company and not a public limited company and therefore, the aforesaid sections 23(h) and l7(e) of the Specific Relief Act cannot be pressed into service. But the above conclusion does not affect the instant case as it has not been pleaded by the defendants that the agree ment in question was not enforceable. Furthermore, as pointed out hereinabove according to the learned counsel for the defendants the agreement under reference is enforceable though for different reason given by him referred to hereinabove. It was also urged by Mr. Zari on the basis of the minutes of the meeting of the Board of Directors of the defendant No. 6 held on 19th September, 1963 and the evidence of P. Ws. 1 and 3 that in fact upon the incorporation of the company (i. e. defendant No. 6) it adopted the agreement. It will suffice to observe that on the basis of the pleadings, it cannot be urged that the above agreement is not enforceable. However, from the pleadings of the defendants, from the conduct of the defendants and from the docu ments produced including the account books, it is clear that for all intents and purposes defendant No. 1 was acting upon and performing the obliga tions under the agreement in question not with sanding the incorporation of Anjam Ltd. As pointed out hereinabove that in the written statement no plea was raised that defendant No. 1 or the other defendants (who were directors) were not liable, on the contrary there is an admission therein to the effect that the defendants had purchased the subject-matter of the suit. The various items were entrusted by the deceased plaintiff to defendant No. 1 on 10th August, 1963 with effect from 1st July, 1963. From the account books, it is clear that in fact defendant No. 1 was managing, running and financing the newspaper in question and defen dant No. 6 after its incorporation. In my view defendant No. 1 cannot avoid its liability for the various items entrusted by the deceased plaintiff to it. The question against whom the decree is to be passed apparently has acquired some importance because of the fact that "the Daily Anjam Newspaper" was taken over by the Press Trust more than a decade back and the tenancy rights of the Karachi office premises were surrendered by the defendants on 11th October, 1967, Exh. P/2. It may not be possible for the plaintiffs to recover any amount from defendant No. 6. (e) It may be pertinent to mention that even if it is to be held that there was a fresh agreement between the deceased plaintiff and defendant No. 6 after its incorporation (though not pleaded by the defendants), in that event as well defendant No. 1 would not be able to escape its liability as in my view the doctrine of "lifting the veil of incorporation" would be attracted to the instant case. Reference can be made in this regard to the case of Re : F. G. (Films) Ltd. ((1953) 1 W L R 483) the case of Abbey Malvern Wells Ltd. v. Ministry of Local Government & Planning (1951 Ch. 728) the case of Gilford Motor Company v. Horne (1933 Ch. 935 (C A)) and the case of Malyon v. Plummer ((1964) 1 Q B 330) (i) Referring to the case reported in (1953) 1 W L R 483 it may be observed that the question before the learned Single Judge of the Chancery Division was whether a firm named `'Mansoon" could be registered as a British film. In the above case, the applicant-Company sought to have the film "Mansoon" registered as a, British film under the Cinematograph Film Acts, 1938-48 but the Board of Trade refused the application on the ground that the film had in reality been made by a large American company, Film Group Incorporated. The above contention of the Board of Trade was accepted in the above case as on the evidence, it had come on the record that the American Company had provided the entire finance and that in fact the applicant company was acting as the nominee or agent for the American company. (ii) Reverting to the case reported in 1951 Chancery, it may be observed that the founders of a girls' school formed the plaintiff company to acquire the property of the school and transferred all the shares in the company to the trustees of a trust deed, the objects of which were to secure that the school shall henceforth be carried on under the guidance of a body of persons interested in the education of the girls and with a view to promoting solely the educational work and efficiency of the school. In the above case it was hold while the company theoretically had the power to apply its property and assets for the purpose of making profits and devoting the resulting profits to the distribution of the dividends among the members but the body of persons managing the company were not free persons and were not free persons and were subject to the restrictions contained in the trust deed. (iii) With reference to the case of 1933 Chancery, it may be stated that the first defendant, E.B. Horne had formerly been employed as the Managing Director of the plaintiff-Company and had covenanted in a written agreement not to solicit customers of the company after leaving its employment. When his employment was terminated he began to set up his own business, undercutting the plaintiffs prices but after taking legal advice caused instead the formation of a company J. M. Horne do Co. Ltd. (the second defendant No. 2) in which his wife and an employee were sole shareholders and directors. This company took oven Horne's business and solicited the plaintiff's customers. The plaintiff company filed legal proceedings for injunction which was refused and the suit proceedings were dismissed but the Court of Appeal allowed the appeal and granted injunction notwith standing that a limited company was carrying on the business. (iv) Referring to (1964) 1 Q B, it may be observed that in the above case the plaintiff Mrs. Malyon claimed damages for herself and her children under the Fatal Accidents Act, 1846-1959 after the death of her husband in a car accident which was caused by the defendant. Prior to his death Malyon had run from his home one-man business as sale man and distributor of electrical machinery and he had formed a private company F. P. Malyon Ltd. for the purpose of this business. He had 999 of the 1000, L 1 shares in the company and the remaining share was vested in his wife. For tax purposes, the husband and wife were shown in the company's books as employees of the Company (working as a full time and part time basis respectively) and were paid whole of its profits each year in the form of salaries, wife being allocated L800 ( 668 after tax). The salaries of both husband and wife were invariably paid without any differentiation into the husband's bank account and from this account drawings were made to meet the family expenditure. The defendants claimed a sum of 17,875 on the basis of the annual sum taken by the husband and wife from the aforesaid company. The trial Court awarded the defendants the aforesaid sum disregarding the existence of the company and the salary, it had paid to the wife and treating the whole of the family expenditure as earned by the husband. The above judgment was upheld by the Court of Appeal but it reduced the amount of damages to 15,275 on the ground that some account should have taken of the value of the wife's services, although not to the full extent of 800 per name shown in the book. ( f ) In the above cases referred to in para. 13(e), the doctrine of "Lifting the veil of incorporation" was pressed into service and the existence of the companies was disregarded in order to ascertain the real nature of the transaction for determining the points in issue. In my view in a fit case a Court is competent to ignore the existence of company, in other words to lift the veil of incorporation with the view to ascertain the real nature of the transaction in issue/dispute in order to dispense complete justice.

14. In view of the above discussion, my finding on the above re- casted one issue quoted hereinabove in para. 3(b), is that the plaintiffs are entitled to recover Rs. 1,23,

380. I accordingly pass a decree for a suns of Rs. 1,23,380 as detailed in para. 12(e) hereinabove, with 6% simple interest thereon from the date of the suit till payment and proportionate costs against defendants Nos, 1 and 6, but I do not see any justification to pass any decree against defendants Nos. 2 to 5. who were merely directors inter alia of defendant No.

1. M. Y. M. Suit decreed. accordingly.