1989 PLP 2968 (MLD)

Chaudhry Sadiq Hussain for Respondent. Date of hearing: 11th March, 1989. This regular First appeal impugns the judgment/decree dated the 1st of April, 1986, passed by the learned Civil Judge 1st Class, Sheikhupura, whereby the respondent-plaintiff's suit for recovery of Rs.2,90,957 was decreed with costs against the appellants-defendants.

2. The respondent-Company, Messrs Qadria Board Mills Limited, allegedly supplied chipboard to the appellants-defendants on their demand on various occasions in the year 1979 on the basis of a mutual, open and current account maintained in the name of the parties. The last consignment was supplied to them on the 15th of December, 1979k. The balance recoverable from them amounted to Rs.2,90,957 on the 31st of December, 1979. The plaintiff-company averred that though they had been asking for payment of the dues, yet the defendants did not care to liquidate their liability and hence the suit,

3. The appellants-defendants denied' haring any business relations with the plaintiff-company, or received goods from them on credit or having ripened any mutual, open and current account with them. They objected to the territorial jurisdiction of the Court and also the competence of the person who instituted the suit on behalf of the plaintiff-company. Additionally, they claimed that the suit was barred by time. The following issues were framed by the trial Court:- "(1) Whether this Court lacks territorial jurisdiction to try this suit? O.P.D. (2) Whether .the suit has not been instituted through competent person O.P.D. (3) Whether the suit is within time? O.P.D. (4) Whether there was no mutual, open and current account of the disputed period between the parties? O.P.D. (5) Whether the plaintiff supplied certain goods to the defendant as contended in para. No.2 of the plaint and on the basis of alleged agreement consequently the mutual and current account was maintained between the parties? O.P.P. (6) .If issue No. 5 is proved then whether the plaintiff is entitled to recover Rs.2,90,957 from the defendants? O.P.P. (7) Relief."

4. The respondent examined two witnesses besides the statement of their Managing Director P.W.3. They relied upon vouchers (Exhs.l to P.17), ledger (Exh.P.20), and the appellants' letters (Exhs. P.19 and P.21). The appellants did not produce any evidence despite having been given a number of adjournments. Instead, they started making various miscellaneous applications which were dismissed for one reason or the other. Thus, the respondent's evidence was considered to have been left unrebutted, and relying thereupon the suit was decreed with costs.

5. Mr. A.H. Najafi, Advocate for the appellants relying upon Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore PLD 1971 SC 550 (560-B) urged that the suit had not been brought by a competent person on behalf of the respondent-company. Although an objection to that effect was raised yet the onus to discharge the same lay on the appellants who did not care to produce any evidence whatsoever. The Managing Director of the respondent-company, Shahbal Khan P.W.3, clearly stated that he was authorised by the Company through their resolution (Exh.P.17) to bring the suit. This document was more than sufficient to establish the credentials of the A Managing Director to file the suit on behalf of the respondent. The precedent case cited above was of no assistance to the appellants in this respect. Next, Mr. Najafi urged that the trial Court had unjustifiably turned down their various applications brought either for additional evidence or for summoning document or for amendment of the written statement. The order-sheet shows that the appellants were given a number of adjournments to produce their evidence, which ultimately was closed under Order XVII, Rule 3, C.P.C., for their consistent failure to avail them. It looked as if they had no evidence to produce in rebuttal and instead, they took to making miscellaneous applications on various excuses. Those were mostly made after their evidence was closed. The idea obviously was to make the confusion worse confounded. Making those applications subsequently in a way reflected that they had a second thought to defend the suit on somewhat different lines. Initially their singular stance was of having denied totally the commercial relations with the respondent-company. Later, however, by their application dated the 14th of February, 1985, (page 103 of the original file) they 'wanted to prove that they had been making payments either through telegraphic. transmission or Bank accounts for supplies of the chipboard received by them. They wanted even to examine certain witnesses to prove those payments. The main reason which weighed with the trial Court to dismiss those applications was that the pleas raised therein were quite inconsistent with what was stated at the earliest in the written statement. Besides, they were made after the punitive provisions of Order VII, Rule 3, C.P.C., had been applied to close the appellants' evidence for the reason of their persistent indifference in producing the same.

6. Counsel tried to argue that those applications were dismissed on technical reasons and that mere technicalities should not have been allowed to obliterate justice or entrap the appellants. He referred to Rana Taleh Muhammad Khan etc. v. Additional District Judge etc. P L D 1979 Lah. 145 but it was a decision rendered by Single Bench. He then relied upon Mst. Ghulam Bibi etc. v. Sarsa Khan etc. P L D 1985 SO 345 showing that amendment of the pleadings should have been allowed as a matter of course. As already remarked, one of the basic rules in the context of amendment of pleadings is that the complexion of the case may not be allowed to be changed. The appellants pleaded total denial in the written statement but subsequently they were trying to C present something diametrically opposed to it viz., they had been receiving the goods making part payments, and entering into correspondence with the respondent-company. They should have been vigilant enough to plead those events at the earliest. Their conduct disentitled them from making a somersault. There, was no question of laying a trap against the appellants, nor were they hooked up by any hypertechnicality. They have to blame themselves for making brazen-faced denial of having received goods worth such a huge amount and then trying at a later stage to establish that they had paid up the entire cost thereof. Application of Order XVI1, Rule 3, C.P.C. was pre-eminently justified because of their repeated omission to produce or call evidence in rebuttal. Issues were framed on the 3rd of May, 1984, whereas the appellants' evidence was closed on the 1st of April, 1986, that is after allowing them almost a couple of years. Pak American Fertilizers Ltd. v. Amir Abdullah Khan etc. 1984 C L C 2170 (2173) was cited in support of the contention that the appellants were required to produce evidence within a short span of period after the close of the evidence of the opposite party. We do not think the contention was correct. After framing the issues on the 3rd of May, 1984, the respondent-plaintiff-company was directed to produce their evidence on the 5th of July, 1984, and, in fact, they closed it on the said date. On the other hand, the appellants' evidence was closed on the 1st of April 1980, that is after allowing them almost two years' period. No adjournment was given to the respondent-plaintiff, nor had they asked for any. Contrary to it, the appellants had been availing the said period of two years on one pretext or the other. Pak American Fertilizers Ltd.'s case lends no support to their contention.

7. The evidence relied upon by the respondent-plaintiff mostly consisted of documents like vouchers P.1 to P.17, the appellants' own letters P.19 and P.21 and the mutual, open and current account maintained in the names of both the parties. These documents appear for all purposes to be worth their while to substantiate the respondent's claim of having had business dealings with the appellants through maintaining a mut44al, open and current account. Absence of rebuttal thereof lent further strength to the veracity of those documents. Indeed, g the subsequent conduct of the appellants by showing payment of the debt, made it still more credible against them. The suit filed on the 14th of November, 1982, was in time because the last payment was shown to have been made on the 10th of December, 1979. We do not find anything wrong with the impugned judgment and consequently affirm it.

8. The appeal is dismissed with costs. H.B.T./P-73/L