1989 PLP 1023 (CLC)

ABAID ULLAH KHAN, J.‑‑This appeal is directed against the judgment and decree of the learned Civil .Judge, Okara, dated the 24th April, 1984, dismissing the appellant's suit for recovery of Rs.3,45,833.85 against the respondents. The appellant, Messrs Sutlej Cotton Mills Limited, was treated as enemy property and its management and control was taken over by the Custodian of Enemy Property in consequence of eruption of hostilities between Pakistan and. India in 1965. It has since been sold away to a private party. According to the appellant, respondents 1 and 2 supplied it equipment, machinery and spare parts on behalf of other respondents. The appellant advanced money from time to time to the respondents for this purpose. The Amount sought to be recovered was said to be outstanding against the respondents. Respondents 1 and 2 were said to have acknowledged and confirmed in writing on the 22nd August, 1966, the receipt of Rs.2,71,357.86 apart from bonus vouchers valuing Rs.86,081.00. The appellant objected to the respondents' adjustment of the amount of bonus vouchers against their commission to which they were stated to be not entitled.

2. The respondents contested the suit and denied that anything was due from them. They came up with counter pecuniary claim against the appellant. They asserted that they were entitled to receive commission as had been agreed to by Mr G . N . Dalmia, Secretary General of the appellant‑ in his letter, Exh. D.1, dated the 17th June, 1963. They objected to the competency of the Deputy Custodian of Enemy Property to institute the suit.

3. The learned trial Court, for lack of evidence from the appellant's side, did not find the claim in the suit to have been proved. Also it held that the Deputy Custodian of Enemy Property was not competent to file the suit. It recorded dismissal of the suit.

4. Barring examining two witnesses, Khalil‑ur‑Rehman, P.W.1, who served as its purchase officer and Abdul Hamid Khan, P.W.2 who was its General Manager for some time, the appellant did not) produce any evidence despite the fact that it had been given many an opportunity for this purpose. Consequently the learned trial Court was constrained to close its evidence. The learned counsel for the appellant could not successfully impugn the validity of the order of the learned trial Court shutting the evidence. No entry from any of the accounts books was produced to show as to what amount had the respondents. The resume of been advanced to and was due from the discussion that took place between the officials of the appellant and respondents 1 and 2 contained in Exh.P.l does not create and fix the respondents' liability. Exh . D .1, the letter of Mr. G . N . Dalmia, leaves no room for doubt that commission at the rate of 10 per cent on all the bills was to be paid for supply of machinery, spare parts, etc. Therefore, it was lawful on the part of the respondents to adjust the amount paid by the appellant against commission. In the absence of cogent evidence the appellant's case is necessarily to fail. Even if the learned trial Court's view that the suit was not competently brought is not accepted the impugned judgment of dismissal of the suit due to the appellant's failure to prove its case cannot be displaced. The appeal is consequently dismissed with no order as to costs. M.Z_.S.1S‑320/L Appeal dismissed.