1968 SCMR 559 (PLP)
USMAN AND ANOTHER-Peititioners Versus SARWAR ALI-Respondent
| Citation | 1968 SCMR 559 (PLP) |
| Forum / Court | High Court |
| Bench Members | A. R. Cornelius, C. J. and Fazle Akbar, J. |
| Parties | USMAN AND ANOTHER-Peititioners Versus SARWAR ALI-Respondent |
Q1: What are the key laws and sections cited in 1968 SCMR 559 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1968 SCMR 559 (PLP)?
The case was heard and decided by the High Court bench comprising: A. R. Cornelius, C. J. and Fazle Akbar, J..
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1968 SCMR 559 (PLP) (USMAN AND ANOTHER-Peititioners Versus SARWAR ALI-Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Ghulam Husain Abbasi, Advocate Supreme Court instructed by Shafiq Ahmed, Senior Attorney for Petitioners.
- Nemo for Respondent.
Headnotes / Summary
(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 10th October. 1967, in lInd Appeal No. 530 of 1967). Civil Procedure Code (V of 1908), O. VI, r. 17 and S. 107(2)- Amendment of pleadings-Suit for recovery of amount due on a bill-Amendment in date of presentation of bill whether rightly allowed by appellate Court- Special Leave to Appeal granted by Supreme Court.
Judgment & Decree
CORNELIUS, C. J.-The point raised in this petition, seeking special leave to appeal against a judgment of a Division Bench of the High Court, is one of limitation. The suit of the respondent Sarwar Ali, which was for recovery of a sum of money, being the amount of a bill for work done on contract allegedly left unpaid, set out the following causes of action, viz :- (1) non-payment of the final bill which was presented on the 24th January 1962; and (2) failure of satisfaction following the last notice sent on the 10th August 1964. The trial Court held that the suit, instituted on the 24th February 1965, was time-barred in relation to the first of the dates mentioned above, and secondly that the "contention that the cause of action arose on (the plaintiff's) second demand which was made on 10-8-64 is not tenable." An Additional District Judge granted an application for amendment of the plaint to make it appear that the date of presentation of the final bill was not the 24th January 1962, but the 24th April 1962. This was done after examining certain documents produced by counsel for the plaintiff appellant, who had pleaded that the mention of the earlier date was through typographical error. Accordingly it was held that the suit was within time. In second appeal, a Division Bench of the High Court:- (a) set aside the order of the first appellate Court, on the ground that the amendment was allowed irregularly, on the mere appearance of some documentary evidence, whose source was not stated; the appellate Court should have set aside the &Eder of the trial Court and sent the case back "for trial on thi., issue or other issues as well"; and (b) themselves allowed the amendment in the plaint, to alter the date of presentation of the final bill to the 24th April 1962, observing at the same time that the amendment "in no manner proves that the bill was in fact presented on the 24th of April 1962, and not on the 24th January 1962," and that this "question must be decided upon evidence." Leave to appeal is sought against this order. It is evident that the defendants' position in the suit is gravely prejudiced by the amendment which has been allowed, again on no evidence, for it will be for him to establish the correct date of the final bill, .A whereas on the view taken in the High Court regarding the propriety of the order of the first appellate Court, the burden lay upon the plaintiff to establish by evidence that the correct date was not the 24th January 1962, as had been stated in the plaint, but was the 24th April 1962. We accordingly grant leave to appeal as prayed. Security-Rs. 1,
000. Further proceedings in the suit are stayed.Very early hearing. Leave granted.