P L D 1986 Karachi 229 (PLP)

This second appeal under section 100, C. P. C. is filed by the plaintiff/ appellant against the judgment add decree of Vth Additional District Judge, Karachi passed in Civil Appeal No. 454 of 1976 reversing the judgment and decree of the trial Court and dismissing the suit of the plaintiff/appellant‑ The plaintiff instituted a suit in the trial Court for recovery of a sum of Rs. 8 141 being the amount of five alleged bill. relating to the supply of wine to the respondents. The plaintiff also claimed in the suit a stem of Rs. 2.000 being the interest on the above amount of bill from the date of supply of wine till the filing of the suit besides claiming future interest at the rate of 9% per annum from the date of filing of the suit till the amount was paid. The suit was resisted by the respondents and it was pleaded that they are not liable for claim in the suit. On the basis of the controversy between the parties the following issues were framed by the trial Court :‑ "(1) Whether the plaintiffs firm is a registered firm ? If not its effect (2) Whether the defendants placed orders to the plaintiff for the supply of wines during the months of April, May and July, 1969 ? (3) Whether the plaintiffs delivered the said goods to the defendants ? (4) Whether the plaintiffs are entitled to a sum of Rs. 8142 from the defendants ? (5) What should the decree be ?" Issue No. 1 was not pressed before the trial Court and on Issues Nos. 2, 3 and 4 the trial Court held in favour of the appellant/plaintiff and accordingly decreed the suit. The learned First Appellate Court, however, reversed the decree of the trial Court and held that the burden of proof which was ore the appellant/plaintiff in respect of the claim in the suit was not discharged and therefore, the claim was not substantiated. The judgment and the decree of the First Appellate Court has been challenged in this second appeal and I have heard at length the learned counsel for the parties. It is contended by the learned counsel for the appellant/plaintiff that the reversal of the findings by the First Appellate Court was on insufficient ground and the burden of proof was wrongly shifted on the plaintiff/ appellant. It was urged by the learned counsel that the evidence on record establish the case of the plaintiff and suit was rightly decreed by the trial Court. In the written statement filed before the trial Court the plaintiffs claim was denied by the respondents on the ground that the plaintiff had not filed any order alleged to have been placed with the defendants and the defendants also did not have any such order in their record. It was admitted that before filing of the suit the plaintiff had brought the matter to the notice of the defendants but they were asked to produce order or acknowledgment regarding supply of the goods but they failed to satisfy the defendants and as such no payment was made to them. Regarding service of the notice prior to the filing of the suit by the plaintiff the defendants alleged in their written statement that no such notice appears in their record and, therefore, they did not accept the receipt of the notice. The plaintiff in support of his claim in the suit examined one of his employees Ayazur Rehman. This witness in his examination‑in‑chief stated that he is the sale representative of the plaintiff and that the plaintiff used to supply wine on orders to the defendants from time to time. He further stated that some of the orders used to be on telephone and he used to go personally to deliver the goods to the defendant. It was stated by the witness that one Mr. Jamshed of the respondents used to place the orders and no other person. He categorically stated that between April, 1968 to 1969 five orders were placed by the defendants for wine which were supplied by the plaintiff and he produced five duplicate bills as Exhs. 7 to 1.1 which carry the seal of the respondents' Company besides some signature. The witness also stated categorically that Exhs. 7 to 11 bear signatures of defendants' men and stamps of the defendants‑ This witness produced notice, dated 4‑11‑1971 served on the respondents before filing of the suit as Exh. 12 and its acknowledgment as Exh.

13. He also stated that in spite of receipt of this notice the respondents did not send any reply to cross‑examination the witness admitted that the orders relating to bills (Exhs. 7 to 11) were not placed in writing but they were oral orders. He also admitted that Jamshed of defendants did not sign the duplicate bills namely Exhs. 7 to

11. The address indicated on Exh. 13 was not disputed although a suggestion was made in the cross‑examination that notice Exh. 12 was not received by the defendants which was denied by the witness. There was no suggestion in the cross‑examination of this witness that the seal of the defendants affixed on the duplicate copies of the bill Exhs. 7 to 11 was forged or manipulated or that this seal was not put by the defendants. The respondents in their defence examined their manager Cowas Rustamji. This witness in his examination‑in‑chief stated that the orders placed by the plaintiff for supply of goods to the respondents used to be mostly in writing He also stated in his examination‑in‑chief that the respondent used to import wines and also made local purchases. He categorically stated that one Jamshed is the incharge of the wines section and he alone used to handle the transaction relating to the wines. He stated that Jamshed used to receive the delivery of wines from outside and he used to take them out. He also stated that Jamshed is out of Karachi since last two months. He denied that any of the bills are signed by Jamshed and further stated that to his knowledge they do not bear the signatures of any of the hotel employees. In cross‑examination this witness admitted that he had no power‑of‑attorney to depose on behalf of the respondent nor he gave instructions with regard to written statement filed in the suit. He also admitted in cross‑examination that it is only Jamshed who had power to purchase wine and he does not deal with the , wine department. To a further question in cross‑examination this witness stated that he had stated in the examination‑in‑chief that orders were used to be placed in writing on the basis of his general knowledge and not on specific instructions. He further stated that be could not say if during the month of April, May and July, 1969 any orders were placed by Jamshed for supply of the wine. , He was confronted with Exh. 12 and be stated in reply that he does not know anything about it, He was also shown Exhs. 7 to 11 and he stated that the seals of Exhs. 7 to 11 were similar to those of Hotel Metropole. He admitted that seals and signatures are taken after delivery of the goods. He also admitted that Jamshed is still the employee of the hotel and he alone can give the correct picture of the wine department. From the above discussed evidence it is quite clear that the evidence of Cowas Rustamji examined by the respon dents in support of their stand in the case was of no assistance as the witness was not at all conversant with the dealing of wine department and categorically stated that it was Jamshed alone who was in a position to state the fact relating to the transaction of wine. The learned First Appellate Court was much influenced with the fact that the appellant's witness admitted in cross‑examination that the duplicate copy of the bills produced in the case were not signed by Jamshed. The First Appellate Court was also influenced by the fact that the defendant bad not reamed the person who had received the goods. The First Appellate Court also took note of the fact that the respondents' witness Cowas Rustamjee stated in his evidence that the orders were placed by Jamshed exclusively. Another factor which influenced the learned First Appellate Court was that the appellant being a partnership firm must be maintaining accounts therefore, a presumption should be drawn against them. With regard to bills Exhs. 7 to 11 the learned First Appellate Court came to the conclusion that these bills were not proved by the appellant. On consideration of the above grounds the decree of the trial Court was reversed by the First Appellate Court and the suit instituted by the plaintiff was dismissed. None of the considerations which prevailed the learned First Appellate Court was sufficient for reversal of the decree of trial Court. The delivery of the goods to the plaintiff is evident by Exhs. 7 to 11 which not only carry the seal of the defendants but they are also signed by some person who according to the appellant's witness. were the men and employees of the respondents. There was a categorical statement by the witness of the plaintiff who personally delivered these goods to the respondents that these supplies were made to the respondents against the bills Exbs. 7 to

11. There was no suggestion in the cross‑examination that these bills were either fabricated or forged or that they did not bear the stamp of defendants. It may be mentioned here that in the written statement the respondents had relied on the record of the company to deny the claim' of the plaintiff appellant and. therefore. it was for them to have produced their accounts in support of their stand in the suit. The plaintiff's witness was not put any question in cross‑examination with regard to the accounts maintained by the plaintiff nor any suggestion was made to the witness of plaintiff/appellant that. the supplies of wine made to the respondents/ defendants are not entered or shown in the accounts of the appellant. In these circumstances there was no justification for the First Appellate Court to have drawn an adverse inference with regard to the non‑produc tion of the account books of the appellant as their production was never required by the respondents in the cross‑examination of the appellant's witness. Similarly, the fact that the plaintiff's witness had admitted in cross‑examination that the bills are not signed by Jamshed was not of much importance in case as it was not the case of the plaintiff in the examination‑in‑chief that the bills were signed by Jamshed or that the delivery was offered and received by Jamshed personally. The plaintiff's witness who had delivered the goods to the respondents only stated that the supplies were made to the defendants and the bills were signed in token of the receipt of the supplies by the men of the respondents. In these circumstances, the admission relied by the learned First Appellate Court was not of any real importance. The learned First Appellate Court also refused to rely on the stamps of respondent's Company on Exhs. 7 to 11 although the respondents' witness admitted in cross‑examination that the seals appearing on these documents are similar to that of the respondents' seal and be also admitted that he was not aware of any of the transaction relating to the wine department which Mr. Jamshed alone will be able to testify it. In this state of evidence the absence of examina tion of Jamshed who was admittedly the employee of respondents on the date the evidence was recorded in the suit was fatal to the stand of the respondents moreso where the witness Cowas Rustamjee examined by the respondents himself stated that it was Jamshed alone who could say about the transaction relating to the wine department. The plaintiff closed his evidence in the case on 27‑3‑1975 and thereafter the defendants produced his evidence on 26‑10‑1975. Although it is stated in the statement of Cowas Rustamiee that Jamshed is out of station for two months but that alone was not sufficient reason to dispense with the examination of that witness who according to the statement of Cowas Rustamjee was the only person who could testify the real facts relating to wine department. Apart from it the judgment in the case was announced after about a year of the examination of Cowas Rustamjee but no application was made either before the trial Court or before the First Appellate Court by the respondent to produce Jamshed in evidence. In these circumstances, there was hardly any justification for reversal of the judgment and the decree of the trial Court. Accordingly accept this appeal, set aside the judgment and decree of the First Appellate Court and restore the decree passed by the learned trial Court. However, I find that in so far the clam of the interest prior to the filing of the suit is concerned the trial Court was not justified in granting the same I accordingly while restoring the judgment and decree of the trial Court modify to the decree to the extent that the suit shall be deemed to have been decreed only in the sum of Rs 8,142 with costs and interest will be payable at the rate of 6 / per annum from the date of filing of the suit till the amount is paid. Decree to follow accordingly. A. A. Order accordingly.