2005 PLP 1834 (CLD)

SAIYED SAEED ASHHAD, C.J.

Heard the learned counsel. Perused the impugned judgment. From a perusal of the impugned judgment it is revealed that the same has been written in a careless manner and suffers from inherent contradictions inasmuch as the conclusions drawn and the findings given on the issues framed the relief granted by the A trial Court could not have been granted and is absolutely contrary to the evidence and findings. The impugned judgment is arbitrary, whimsical, against the provisions of law and gives an indication that the concerned Judge had not taken into consideration the evidence on record and the principles of law in deciding the suit. Mr. A. R. Akhtar, Advocate for the respondent submitted that the trial Court in deciding the issues had ignored the material evidence without assigning any plausible reason and further submitted that had that evidence been taken into consideration the findings on the issues would have been altogether different. He further submitted that loan ledgers and bounded computerized statements were produced before the trial Court in support of the contention that the finance facility in question was granted in favour of appellant No. 1, the amount was disbursed to them, and the same was utilized by them but the trial Court ruled them out of consideration for deciding the above issues but placed reliance thereon that from the aforesaid documents it was proved that appellant No.1 had benefited from the finance facility in question. Mr. Muhammad Saleem Thepdawala on the other hand submitted that once the trial Court had decided Issues Nos.1 and 2 against the respondent then it could not have arrived at the finding that the respondent was entitled to the principal amount. He drew our attention to the following observation of the trial Court in support of his submission that the trial Court had acted absolutely illegally and against the principle of dispensation of justice. The relevant portion is reproduced as under:-- Now having discussed all the issues in detail, I would like to mention that in spite of failure of the plaintiff to prove any issue, this Court has to act on the principles of equity which demands justice. Being so, the record produced in Court and shown to me today including loan ledgers and bounded computerized statements though ruled out of consideration, but still in addition to the already produced documents clearly show that Messrs Sara Corporation benefited from the finances provided the following sum:-- (1) Rs.2,500,000.00 (2) Rs.2,186,479.00 Rs. 4, 686, 479.00 Though the other issues have failed but the advances cannot be denied by the defendants. The execution of documents has not been denied but has been shrouded. However, by being shrouded, the execution of documents cannot be thrown aside. The factum of availing advances cannot be disputed by virtue of lack of or improper statements. The statements, though irregularly prepared cannot give scot-free licence to the defendants to gallop the public money. In the light of my discussion on these issues my reply to issue No.4 is that the plaintiff is not entitled to claim any mark-up or liquidated damages, while the answer to Issue No.5 is that the plaintiff is entitled to the principal amount as discussed in Issue No.6. We have considered the arguments advanced by the learned counsel for the parties and have perused the material on record. From perusal of the portion of the judgment reproduced above, it is absolutely clear that the trial Court had committed grave illegalities. The impugned judgment is full of contradictions and as already stated above is arbitrary, whimsical and against the principles of administration of justice. The appeal is allowed, the impugned judgment is set aside and the case is remanded to the trial Judge to re-write the judgment in according with the law of Evidence and the Banking Laws after providing opportunity to parties of hearing. M.B.A./S-138/k Case remanded.