1992 PLP 1731 (CLC)

Yousuf Kazmi for Petitioner. Syed Mumtaz Hussain Jaffary for Respondent. Date of hearing: 11th December, 1991. Syed Rizwan Hussain Bokhari respondent filed a suit against Tariq Adrees petitioner for recovery of Rs.25,

000. The learned Civil Judge vide his judgment dated 25‑11‑1989 dismissed the same. The claim of the petitioner for set‑off of Rs.14,000 was also disallowed. Both the parties appealed. The Addl. Distt. Judge vide judgment and decree dated 9‑6‑1990 decreed the suit of Syed Rizwan Hussain and dismissed the appeal of the petitioner as to set‑off. The same has been challenged in the revision petition.

2. Preliminary objection has been raised by the learned counsel for the respondent that there being two orders one decreeing the suit for Rs.25,000 and the other disallowing the appeal for the set‑off of Rs.14,000 two revisions should have been riled. The objection is too technical one. The disposal of the reliefs claimed by the respective parties being by the same judgment A only one revision petition is competent. Even otherwise as many matters as are connected can be taken in revision at the same time by the High Court.

3. The facts lie in a very narrow campus. The claim of Rizwan was that he had advanced the amount of Rs.30,000 under receipt (Exh.Pl) but due to inability to pay the court7fee only Rs.25,000 were being claimed. This was admitted in the written statement as well as in witness box by the defendant (D.W.1). The defence of the respondent/defendant was that he had on the claim of the plaintiff given him cheque for Rs.44,100 which he had encashed and the amount of Rs.30,000 was kept by the plaintiff but the remaining Rs.14,100 was not paid back. It is an admitted fact that the cheque was given by the defendant and encashed by the plaintiff. His further plea was that he had paid the amount of the cheque to the defendant. In this regard there is no evidence except his bare statement.

4. The pleadings were departed from by the plaintiff who claimed that he had been acting as an agent of the defendant from December 1982 to March 1983. It was in that capacity that the cheque was received and the money thereunder given to the defendant. This was nowhere stated or pleaded in the plaint. Similarly the defendant also departed from his pleadings and in the witness box claimed that he had actually received an amount of Rs.30,000 from Ijaz Hussain Jafari, a brother‑in‑law of the plaintiff and an S.D.O. of WAPDA posted at Sahiwal and even the cheque was, on the telephonic message of said Ijaz given to the plaintiff who received the amount thereunder. There being departure from the pleadings by both the parties the Courts are expected to go by the admitted documentary evidence on the record.

5. It is a fact that the plaintiff advanced Rs.30,000 to the defendant and in return received an amount of Rs.44,100 under the cheque. He has not proved the return thereof to the defendant. The findings recorded by the learned Civil Judge are apt and correct. The learned Addl. Distt. Judge not only that he misappreciated the evidence rather made wrong statements of facts in paras 7 and 10 of his judgment. He observed that the plaintiff admitted that he was the representative of the defendant from December 1981 to March 1982. This is absolutely incorrect. He also observed in para‑10 that Rizwan Hussain Bokhari had been receiving the other payments through cheques. This is, also incorrect.

6. The result is that revision petition is allowed and the decree for the amount of Rs.25,000 granted to the plaintiff against the defendant is hereby set aside.

7. Though I have concluded above that the amount of Rs.44,100 was received by the plaintiff from the account of the defendant under the cheque but I am constrained not to grant the claim of set‑off. Reading between the lines there seems to be something fishy in the whole matter and I need not finally discuss inasmuch as ljaz Hussain Jafari is not before the Court. It is an admitted fact that he is an officer in the WAPDA and was posted at Sahiwal. The defendant through his Engineering concern was a contractor of WAPDA and had dealings with the WAPDA at Sahiwal. As has come out in the statement of the defendant in the witness box, which as pointed above, is departure from his pleadings, the transactions of the receipt of Rs.30,000 and of cheque of Rs.44,100 were through or at the instance of said Ijaz Hussain Jafari. How he was dealing with the contractor of WAPDA is something nebulous. For this reason the claim of set‑off is not allowed. The revision petition is disposed of accordingly. The suit stands dismissed. AA./T‑16/L Order accordingly,