2019 PLP 1365 (YLR)

ALI BAIG, J.

Through the instant civil 1st appeal the appellants have called in question the validity and propriety of the impugned judgment/ decree dated 09/04/2014 passed by the learned Civil Judge 1st Class, Skardu/ whereby the learned trial court has dismissed the suit of the present appellants/plaintiffs.

2. Briefly the facts necessary for the disposal of the instant civil 1st appeal are that the appellants/plaintiffs instituted a suit for declaration and rendition of account against the present respondents/ defendants in the learned trial court claiming that the plaintiffs had entered into an agreement with the defendants/ respondents for supply of ration from Skardu to Frano sector as an agents of respondents/defendants vide agreement dated 02/01/2001. The defendants paid an amount amounting to Rs.300,000/- to the appellants/plaintiffs as an earnest money. Accordingly, the appellants/ plaintiffs supplied the requisite ration as per terms and conditions of the aforesaid agreement. Therefore, the plaintiffs/ appellants time and again demanded for rendition of account but the defendants/ respondents have failed to conduct rendition of account and accordingly, suit was filed against the present respondents/defendant in the trial court.

3. The present respondents being defendants in the suit contested the suit by way of filing of their written statement in the trial court on 07/06/2007, wherein they have raised certain legal objections and also controverted the allegation levelled in the plaint by asserting that rendition of account between the parties has already been conducted and as per rendition of account plaintiffs/appellants are liable to pay Rs.81333/- to the respondents/defendants.

4. The learned trial court framed the following issues out of divergent pleadings of parties.

1. Whether the suit is not maintainable in its present form? OPD

2. Whether the suit is barred by principle of estoppal? OPD

3. Whether the plaintiffs have a cause of action? OPP

4. Whether the suit is within time? OPP

5. Whether the agreement dated 02/01/2001 was executed between the parties? OPP

6. Whether the plaintiffs have not supplied the ration as per terms and conditions which caused the defendants a heavy loss? OPD

7. Whether as per rendition of account dated 19.04.2003 the plaintiffs were owe to pay 81,333/- each and agreement dated 31.05.2003, 16.08.2003, 31.12.2004 and 14.09.2006 was executed? OPD

8. Relief.

5. After framing of the above said issues, the learned trial court directed the parties to produce their evidence as they wished to adduce. Accordingly/both the parties adduced their respective oral and documentary evidence in support of their respective claims in the learned trial court.

6. After conclusion of trial the learned trial court vide impugned judgment/ decree dated 09/04/2014 has dismissed the suit of the appellants/ plaintiffs.

7. Being aggrieved by the impugned judgment passed by the learned trial court the appellants/plaintiffs had filed a civil 1st appeal in the court of the learned District Judge Skardu which was later on returned to the appellants for want of pecuniary jurisdiction for presentation in the proper forum i.e in this Court. Accordingly, the instant appeal has been filed in this Court along an application under section 14 of Limitation 1908 for condonation of delay in filing of appeal.

8. The learned counsel appearing on behalf of the appellants contended that the impugned judgment/decree passed by the learned trial court is contrary to law and facts on the record of the case, as such the impugned judgment passed by the learned trial court is not maintainable and liable to be set aside. The learned counsel for the appellants further argued that the learned trial court has failed to pass preliminary decree as required under the mandatory provision of Order XX, Rule 16, C.P.C., hence the impugned judgment passed by the learned trial court is not sustainable in the eye of law and liable to be set aside. The learned counsel for the appellants further argued that the appellants/plaintiffs have proved their case/contention by adducing reliable and cogent oral and documentary evidence in the trial court but the learned trial court failed to proper evaluate evidence of parties and has arrived at wrong conclusion.

9. Conversely, the learned counsel for the respondents supported the impugned judgment/decree passed by the learned trial court by contending that the impugned judgment/ decree passed by the learned trial court is well reasoned judgment and has been passed by the learned trial court after proper evaluating the evidence of the parties. The learned counsel for the respondents further argued that the appellants/ plaintiffs have also filed an application under Order VI, Rule 17, C.P.C. for amendment in the plaint at appellate stage, and if the said application is allowed, the nature/ complexion of suit will be changed and the case will have to remand to the trial court, therefore, this petition of the appellants/plaintiffs filed under Order VI, Rule 17, C.P.C. may be dismissed and the impugned judgment passed by the learned trial court may be maintained.

10. We have given our anxious consideration to the contentions of the learned counsel for the parties and have perused the record with their able assistance.

11. Through this single judgment we intend to dispose of the instant appeal as well as application filed by the appellants/plaintiffs under Order VI, Rule 17, C.P.C. for some amendments in the plaint and petition filed under Article 14 of Limitation Act, 1908 for condonation of delay in filing of appeal in this Court.

12. From perusal of record it transpires that the appellants/plaintiffs have filed an application under Order VI Rule 17, C.P.C. for some amendments in the plaint in this Court during the pendency of the instant appeal. We have gone through contents of aforesaid application filed by the petitioners/appellants. From perusal of contents of application filed under Order VI Rule 17, C.P.C. it reveals that the appellants/plaintiffs have sought minor amendments in the plaint through the instant petition on the basis of same cause of action. If the proposed amendment is allowed neither nature/complexion of suit will be changed nor any fresh cause of action would be introduced rather the proposed amendment would help the Court to arrive at just and fair conclusion. The learned counsel for the respondents submits that the appellants have filed the instant petition under Order VI Rule 17, C.P.C. at belated stage with mala fide intention, to fill up the lacunas in the plaint but we do not agree with this contention of the learned counsel for the respondents as amendment in the plaint can be allowed even in the final appellate stage. Thus the application filed by the appellants is allowed subject to payment of cost of Rs.3000/- to be paid to the respondents by the appellants.

13. Moreover, the learned trial court has also failed to pass preliminary decree before passing final decree as required under the mandatory provisions of Order XX, Rule 16, C.P.C.

14. In view of the above discussion, this appeal as well as application filed under Order VI, Rule 17, C.P.C. and application filed under Articles 14 and 5 of Limitation Act 1908 are allowed. Consequently, the impugned judgment dated 09.04.2014 passed by the learned trial Court is set aside. Suit of the appellants/plaintiffs is remanded back to the learned trial court with the direction to decide the matter afresh after obtaining amended plaint as well as amended written statement from the parties in accordance with law. Parties are left to bear their own costs.

15. Before parting with this judgment, it is observed that the instant case/suit is lingering on since 19/03/2007, therefore, the learned trial court is directed to dispose of suit of the appellants/plaintiffs within a period of six months of the passing of this judgment. Office is directed to send record and proceedings of trial court along with certified true copy of this judgment to the learned trial court forthwith. Parties are also directed to appear before the learned trial court on 10/12/2018. CM No.47/15 is disposed of accordingly. File. SA/235/GB Case remanded.