2016 PLP 146 (CLCN)

MUHAMMAD IQBAL KALHORO, J.

Appellant is aggrieved by the judgment dated 03.02.2011 and decree dated 18.02.2011, whereby Civil Appeal No.160/2010 filed by him was dismissed by the learned I-Additional Sessions Judge, Karachi-Central.

2. The facts in nut-shell are that the respondent/Messrs Royal Group filed a Civil Suit bearing No. 691/2007 for recovery of US $ 30,134/- equivalent to Pak Rs.1,838,174/- with mark-up against the appellant that was decreed by means of a judgment dated 30.08.2010 and decree dated 02.09.2010 passed by the learned IV-Senior Civil Judge, Karachi, Central. The said suit was filed by the respondent on the facts that it is a firm dealing in the business of export and import. The defendant/appellant entered into a sale contract with it on 18.09.2004 for purchase of 34,869 pieces of T-shirts against credit facility of US $ 24,206/-. It was shipped from Port Qasim to Calabar, Nigeria to the agent of the appellant namely Tobechi who was doing business under the name and style of Messrs First Gold Link. The packing, loading, transportation, and all the allied works in respect of said consignment were performed by the respondent for US$ 5,928/-. And although as per terms of the contract the appellant was required to pay US $ 30,134/- before he actually received export documents for release of the said consignment, but on his assurance to pay the said amount, the export documents were sent to his agent Tobechi at Calabar, Nigeria. The appellant, thereafter, despite several requests of the respondent, failed to make payment of the said consignment. A legal notice was also sent in this regard to him but without any result. Finally the above suit was filed by the respondent. In the written statement, the appellant disputed the claim. He made a counter claim rather that although he availed the credit facility against the shipment of 34,869 pieces of T-shirts and accompanying charges, but the goods that became his property were worth US $ 120,000/- equivalent to Pak Rs.7,200,000/-, and were not released by the respondent to him or his agent nor the bill of lading was ever delivered to them. According to him actually the consignment was delivered by the respondent to its own agent, who by selling the same in the open market at Nigeria earned US $ 120,000/-. Therefore it was the respondent who was required to pay remaining amount after deducting the claimed amount. After assessing the evidence adduced by the parties, learned trial Court decreed the said suit judgment and decree mentioned above. The appellant preferred the appeal against that but it was also dismissed through the impugned order.

3. Learned counsel for the appellant Mr. Adil Ghanchi argued that the trial Court as well as the appellate Court did not properly appreciate the evidence of the parties; that although the burden of proof to establish existence of alleged sale contract and delivery of shipment either to the appellant or his agent was on the respondent but it was so assumed that appellant was required to disprove the same; that neither any original contract was produced by the respondent nor it was proved that bill of lading was ever delivered to the appellant or his agent; that admittedly without bill of lading the consignment could not be released; that the respondent during the trial miserably failed to establish its case through confidence-inspiring evidence. According to him there was no such evidence, which remotely suggested that said consignment either reached its destiny or it was handed over to appellant's agent. He emphasized that the respondent was required to produce delivery certificate of the alleged consignment to the appellant or his agent to establish its delivery, but no such certificate was ever produced. He urged that in view of appellant's counter claim it was the respondent who was required to pay money to him. Learned counsel was of the view that necessary party who was agent of the appellant and to whom alleged delivery was made was a necessary party and since he was not party in the suit, the suit for want of necessary party was not maintainable. His argument on the findings of the appellate Court was that the appellate Court also could not appreciate the essence of dispute between the parties; that although it was required to discuss each issue framed by the trial Court in compliance of the provision of C.P.C., but contrary to it, it framed its own points for determination and delivered the judgment thereon, which according to him, was violative of the provisions of C.P.C. In support of his arguments he relied upon the decisions reported in PLD 1973 SC 160, PLD 1975 SC 311; PLD 1974 SC 204; 1970 SCMR 130, 2009 CLC 1070 and 2010 CLC 420.

4. Canvassing the opposite view, Mr. Mir Muhammad Ali Talpur, learned counsel for the respondent first took exception to the maintainability of the appeal by urging that in terms of section 100, C.P.C., the scope of second appeal was limited to only legal aspects of the case. He stated that in the appeal like in hand the controversial facts could not be either attended to or appreciated. He was of the view that no defect of law was revealed, by the learned counsel for the appellant in the judgment of the appellate Court. According to him the grounds urged by the appellant's counsel were of general nature which did not attract provisions of section 100, C.P.C. There were no flaws in the judgments delivered by both the Courts below and the way the evidence was appreciated by them. In addition to above, learned counsel also urged that on the basis of admissions made by the appellant himself in his cross-examination, the case was decided against him. He in order to highlight his point referred to the relevant parts of the cross-examination of the appellant and admissions made by him. He stated that the respondent was not required to prove its case, as admitted facts need not to be proved. Lastly he relied upon the decisions reported in 1996 SCMR 808; 2001 SCMR 1645; 2008 SCMR 190; PLD 2002 SC 446; 2003 SCMR 41, PLD 2000 SC 792 and 2005 SCMR 977.

5. I heard the learned counsel for the parties and perused the material available on record including the case laws cited by them. In the written statement, the appellant has taken divergent pleas in respect of the sale contract. On the one hand he has totally denied the execution thereof by submitting that no documentary evidence has been produced in this regard and merely by scanning his signature affixed on another contract, the subject contract has been prepared by the respondent with mala fide intentions. Yet on the other hand in paras Nos. 3, 5 and 10 of his written statement he admits availing financial facility on credit form the respondent in respect of the said consignment of T-shirts. A perusal of these paras evidently reveals that the appellant has confirmed the suit amount as outstanding against him. The only anxiety he has shown there is in relation to his claim of set-off. That he has set out by asserting that the said consignment was not delivered to him or his agent at Nigeria but was delivered by the respondent to its own agent who sold it out in open market there for US. $ 120,000/ -. Since that sum is equivalent to Pak Rs.7,200,000/, the respondent be directed to return back that amount to him after deducting the suit amount. It is therefore obvious that the appellant does not deny that there was no contract between the parties for purchase of T-shirts that were sent by the respondent to Nigeria at his instance, but he disputes its delivery to either him or his agent in the said country.

6. In the evidence the appellant has reiterated the above position. He has again questioned the existence of the subject contract, but at the same time admits his liability that has accrued upon him as a result of that contract. He admits the business relations with the respondent and concedes Messrs First Gold Link is his agent in Nigeria. He also claims that 34,869 pieces of T-shirts, which were shipped to his above agent, is his property. But according to him that was delivered by the respondent to its own agent in Nigeria, who sold it out on his own for US $ 120,000/- and that amount the respondent owes to him. He categorically admits an amount of US $ 5,928/- towards service charges besides an amount of US $ 24,206/- the price of said T-shirts, which he has not paid yet. He has also admitted in his cross-examination that this amount (US $ 30,134/-) is in respect of the subject contract. In relation to his claim of US $ 120,000/ against the respondent on account of non-delivery of the consignment, he concedes that no proceedings have been initiated by him; and then simply by referring to the claim of set-off raised by him in his written statement, he states that he has made such counter-claim in the suit. He concedes that bill of lading was prepared in the name of his agent First Gold Link but then insists that the respondent issued another bill of lading to another person, He appears to be entirely unaware of the antecedents of that person to whom alleged second bill of lading was issued. He does not know where the consignment went or sold out. The cumulative contours that emerge from the examination of pleadings of the appellant appear to be that he does not dispute the subject contract and his liability but rows over the factum of delivery. It, however, may be observed that when appellant admits his liability in respect of suit amount, it tends to be unconditional. Otherwise, there is no need for him to accept a fact which goes against his cause and interest involved in the matter. He could have said that he owed nothing to the respondent because he did not get any delivery of the subject consignment; that it was not shipped; and that no such contract was ever executed. It appears that he has tried to confuse the facts to hide his liability by first admitting the suit amount outstanding against him and then stating that no delivery of the consignment took place. If no delivery of the consignment took place then how he is liable to pay for that consignment and how can he say that it was sent but was sold out by the agent of the respondent and that after deducting the suit amount, the respondent should pay him the remaining amount. When the appellant admits facts about the transaction and outstanding amount against him, but then takes up a plea that is independent of his admissions, the burden would lie on him to prove that. Admittedly the appellant has not produced any evidence in support of his plea that the said consignment was handed over by the respondent to its own agent in Nigeria who sold it out for US $ 120,000/-.

7. The judgments of the Courts below show that their findings are premised on the admissions of the appellant, which I have discussed above. Conclusion so drawn does not call for any interference by this Court. Nothing convincing was pointed out by the learned counsel for the appellant that impugned decisions are contrary to law; or the Courts below have failed to determine material issue of law. And he also failed to indicate a substantial error or defect in the procedure provided by the Code or error or defect in the decisions of the case upon merits to warrant reversal of these findings. The contract was between the appellant and the respondent as such they are the parties between whom the subject issue is pending. Therefore, the suit does not suffer from any maintainability issue for want of necessary party. I am, therefore, of the view that instant appeal merits no consideration. The appeal was dismissed on 30.11.2015 by short order and these are the reasons for the same. MH/A-105/Sindh Appeal dismissed.