1987 PLP 784 (SCMR)

Raja Muhammad Muzaffar, Advocate Supreme Court for Petitioner. Nemo for Respondents. Date of hearing: 16th February, 1987. SAAD SAOOD JAN, J.‑‑This is a petition for special leave to appeal from the judgment and decree, dated 19‑11‑1979 of the Lahore High Court which affirmed the judgment and decree, dated 23‑12‑1964 of the Senior Civil Judge, Lahore.

2. An auction for the disposal of coal ashes and cinder lying at the Shahdara Power Station was held by the respondents on 9‑4‑1960. The petitioner made the highest bid of Rs.1,15,000 and deposited Rs.25,000 at the spot. Acceptance of the bid was subject to confirmation by the Additional Chief Engineer who did not find his way to accept it. Nevertheless, the petitioner deposited the entire bid money on different dates ending with 22‑4‑1960 and started removing the coal ashes and cinder. After he had taken away about 1/3rd quantity of the goods he was stopped by the respondents. He then asked for the return of his money. The respondents informed him that he was entitled to receive only Rs.55,000 by way of refund as the rest of the money represented the value of the goods already removed by him. The petitioner received the sum of Rs.55,000 under protest and then filed a suit for the recovery of the rest of the amount of Rs.60,

000. In addition, he claimed a sum of Rs.17, 250 by way of damages. He also asked for interest on the bid money. His case was that he had not removed any quantity of the goods from the premises of the respondents.

3. The suit was resisted by the respondents. Their case was that the petitioner had in fact taken away 1/3rd of the goods sold to him and that the amount retained by them represented the value of the goods so removed. The trial Court upheld the assertion of the respondents in this regard but worked out the value of the goods taken away by the petitioner at Rs.38, 333.33. Accordingly, it held that‑ out of the amount already retained by the respondents the petitioner was entitled to a further refund of Rs.21,666.67. It dismissed the claim of the petitioner for damages. In the result it granted a decree in the sum of Rs.26, 433.67 to the petitioner with proportionate costs. The decretal amount included some interest also.

4. From the decree of the trial Court the petitioner as well as the respondents preferred appeals in the High Court. The High Court affirmed the finding of the trial Court and dismissed both appeals. The petitioner now seeks leave to appeal from the decision of the High Court.

5. The question whether the petitioner had removed 1/3rd quantity of the goods sold to him before he was restrained from doing so was a question of fact. Similarly, the valuation of the goods so removed depended entirely upon appreciation of evidence. The two Courts have recorded concurrent findings on both these matters. The learned counsel for the petitioner has not been able to show that these findings suffer from any infirmity. We would accordingly dismiss this petition. S.Q./M‑46/S Petition dismissed.