PAGE 507 (PLP)

9. The learned counsel for the appellant next contended that inasmuch as the amount offered under Exh.49, namely, Rs. 34,740‑6‑0 was received by the respondent No. 1, this acceptance on his part operated as a discharge under section 63 of the Contract Act, which reads as follows:‑ "Every promisee may disperse with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit." Tire learned counsel in particular relied on illustration (c) to this section which is in the following terms:‑ "A owes B 5,000 rupees. C pays to B 1,000 rupees, and B accepts them, in satisfaction of his claim on A. This payment is a discharge of the whole claim." This contention also was not raised at any stage in the trial Court nor has it been taken even in the memorandum of appeal. The learned counsel for the appellant, however, contended that this was a point of law and could, therefore, be urged by him even at this stage. While there can be no quarrel with the general proposition canvassed by the learned counsel, we are not inclined to agree with him that the contention raised by him is a pure question of law. As observed by their Lordships of the Supreme Court in Abdullah Khan and others v. Nisar Mohammad Khan and others (P L D 1965 S C 690):‑ "A pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that It could have been met by an: allegation of fact." In the present case if this plea had been taken by the appellant in his written statement or even at a later stage in the trial Court, the respondent No. I could have repudiated the same by leading evidence to show that the payment of Rs. 34,740‑6‑0 was received by him as a part payment and not in satisfaction of his entire claim. On the document itself, namely, Exh. 49, there is no acknowledgment or even an endorsement by the respondent No.1 to show that he had accepted payment of this amount in satisfaction of his entire claim against the appellant. Indeed, there is no evidence at all on record to substantiate this contention of the learned counsel for the appellant. Besides, mere acceptance of this amount did not necessarily mean that the respondent No. I was aware of the contents of Exh. 49, as there is no evidence on record to this effect. In fact the case of the appellant was that payment of Rs. 34,740‑6‑0 was not even sanctioned but the same was obtained by respondent No. 1 on the basis of a forged document namely, Exh. 66, The appellant could not possibly take this stand as advanced by the learned counsel before us, in its written statement, as in that case the defences taken by him would have been self contradictory. In any view of the matter, as observed by their Lordship, of the Supreme Court in Abdullah Khan and others v. Nisar Mohammad Khan and others cited above, points involving enquiry into facts or to which answer could be on facts if raised in trial Court, cannot, in absence of strong reasons be allowed to be raised for first time in appeal. We have, accordingly, no hesitation in overruling this contention of the learned counsel as well.

10. We shall now consider the evidence on issue No. 1 which is the most important point for determination in this appeal. The entire case of the appellant on this question rests on the oral evidence of Faiyaz Hussain, D. W. 3, who was an Overseer employed by the appellant. Municipality from 1954‑

56. He admitted in cross‑examination that before he recorded measurements of the work done by the respondent No. 1, the latter had made an application against him and some others to the Deputy Commissioner, Sanghar regarding demands of illegal gratification. The learned trial Judge was, there fore, justified in not placing implicit reliance on his oral testimony.

11. It has not been disputed by the appellant at any stage that the entire work on the road from Shahdadpur Railway Station up to Hala Octroi Post had been completed and that an amount of Rs. 86,550‑6‑0 was due thereon. This can be seen from Exhs. 47 and 48, namely, the report of Assistant Engineer, Gambat Sub‑Division and the report submitted by the Executive Engineer, Nawabshah Roads Division to the Deputy Commis sioner, Sanghar. In his report to the Deputy Commissioner, Sanghar (Exh. 48) Mr. S. M. Askari Taqvi, Administrator of the appellant‑Municipality has also stated that the total amount as per the calculations of the office for the entire work came to Rs 86,550‑6‑

0. This was based on the report submitted by the Chief Engineer of the Municipality (Exh. 67). The case of the appellant, however, all along was that a part of this work was done by Zamir Hyder, respondent No. 2 and as the latter was paid Rs. 26,000 for this work this amount had to be deducted from the total amount claimed by the respondent No.

1. The appellant did not examine Zamir Hyder. In the written statement filed by the latter, (Exh. 20) Zamir Hyder stated that he had always taken contracts from the Municipality independently and he had received payments for those contracts. In other words, he denied that any payment was made to him by the appellant‑Municipality for this particular contract. This admission of respondent No. 2 no doubt could not be admissible against the appellant. The fact however, remains, that if the appellant had entered into any such contract with Zamir Hyder and had in fact paid him a huge amount of Rs. 26,000.00 for that purpose he could have very easily produced a copy of the agreement itself in addition to the receipt for payment and other correspondence etc. relating to this work. All these documents would have normally remained in the custody of the appellant and respondent No. 1 could not be expected to be in a position to say anything regarding them. The burden of proof in such a case would lie on the appellant and he could have easily discharged that onus by leading documentary evidence relating to the contract alleged to have been entrusted to Zamir Hyder. Instead, the appellant‑Municipality contended themselves by relying on the oral word of D. W. Faiyaz Hussain, who had a grievance against respondent No. 1 as the latter had made allegations regarding demands of illegal gratification against this witness.

12. It is a settled principle that the best evidence of which the case in its very nature is susceptible should always be presented. Sections 91 and 92 of the Evidence Act are common illustrations of what in English Law is known as "the best evidence rule". As observed by Taylor in his Treaties on the Law of Evidence "when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it, which would be frustrated if it were offered." Similarly in Dinomoyi Debi v. Roy Luchmiput Singh (7 I A 8) their Lordships of the Privy Council observed as follows:‑‑ "It is a cardinal rule of evidence not one of technicality but of substance, which it is dangerous to depart from, that where written documents exist they shall be produced as being the best evidence of their own contents." The evidence of respondent No. 1 Jumo Khan and his Road Mistri Kadir Baig, P. W. 2 showed that the entire work originally entrusted to the respondent No. 1, was carried out by him during the period of extension granted to him by the Munici pality. The letter: of respondent No. 1 (Exh. 80) addressed to the General Board of the Municipality on which reliance is placed by the learned counsel for the appellant, is not really inconsistent with their evidence that on the request of respondent No. 1, extension of time was granted to him to complete this job. These two witnesses are also supported by Exh. 47, namely the report of Assistant Engineer, Gambat Sub‑Division, as well as by the report of the Executive Engineer, Nawabshah Roads Division, namely, Exh.

48. The case of respondent No. 1 received support from certain admissions in Exh. 49, which is the report of Mr. S. M. Askari Taqvi, Administrator of the appellant Municipality. In addition, Exh. 52, the report dated 14‑I1‑1958 of Mr. Ghulam Nabi Memon, successor of Mr. Taqvi also supports the case of respondent No.

1. For the reasons given above we agree with the learned trial Judge that the appellant had not discharged the onus of proving that Zamir Hyder had completed the road repair work initially entrusted by the appellant to the respondent No. 1, or that the appellant had paid a sum of Rs. 26,000.00 to Zamir Hyder, respondent No. 2 on this account. It accordingly, follows that the respondent No. 1 had neither committed any breach of contract nor had he failed to complete the work as alleged by the appellant. We feel that the learned trial Judge was correct in coming to the conclusion that the respondent No. 1 could not be penalized to the extent of Rs. 1,810.00 as suggested in Exh. 49; and that this respondent was entitled to receive a total amount of Rs. 86,550‑6‑0 which was the amount due to him on account of the work done by him.

13. The respondent No. 1 had admitted having received a sum of Rs. 34,740.00 from the appellant in three instalments of Rs. 14,740.00, Rs. 10,000.00 and Rs. 10,000.00 paid to him on 1‑10‑1958, 1‑12‑1958 and 20‑1‑1959 respectively. He claimed Rs. 33,810‑6‑0 on the basis that out of a total amount of Rs. 86,550‑6‑0, Rs. 18,000.00 were paid to him as running bills and Rs. 34,740‑6‑0 were paid to him as per the orders of the Administrator in three instalments as stated above. The case of the appellant on the other hand was that the respondent No. 1 was paid Rs. 21,000.00 as running bill. The only material on record to support this assertion of the appellant is again the oral testimony of Faiyaz Hussain, D. W.

3. This interested witness is, however, falsified by his own report, Exh. 44 (which appears on page 31 of the paper‑book), regarding the details of advances paid to the respondent No.

1. This report dated 25‑1‑1956 shows that the respondent No. 1 was paid Rs. 16,000.00 as advance till 25‑1‑1956 and subsequently, he was paid Rs. 2,000.00 only thereby making a total of Rs. 18,000.00. This document supports the evidence of respon dent No. 1 that only Rs. 18,000.00 (and not Ra. 21,000.00) were paid to him as his running bill.

14. The appellant produced entry, Exh. 74, from the Audit Report, Exh. 78, to prove that an over payment of. Rs. 3,000.00 was made to the respondent No. 1 in the year 1954‑55 and this amount was rightly deducted from the amount claimed by the respondent No. 1.

15. No other contention was raised before us by the learned counsel for the appellant. We, therefore, bold that the learned Additional District Judge, Tharparkar at Sanghar had rightly decreed the first respondent's suit for Rs. 30,810‑6‑0 (Rupees thirty thousand eight hundred ten and annas six) without allow ing any interest to him. For the reasons given above this appeal fails and is hereby dismissed; but in the circumstances of this case, we would leave the parties to bear their own costs. K. B. A. Appeal dismissed.