P L D 1976 Karachi 1002 (PLP)
S. J. & FAZUL.ELLAHIE LTD.‑Appellant Versus BAYER HAND ELSGESELLISCHAFT M. B. G.‑Respondent
| Citation | P L D 1976 Karachi 1002 (PLP) |
| Forum / Court | ‑‑ Evidence recorded in earlier suit ordered, by consent of parties, to be read in another case filed later, unless Court decided to record further evidence‑Possibility of recording further evidence, in circumstances. existing Decision of earlier suit without waiting for completion of proceedings in other case, held, not faulty in circum stances.‑Evidence. |
| Bench Members | Abdul Kadir Shaikh, C. J. and Fakhruddin G. Ebrahim, J |
| Parties | S. J. & FAZUL.ELLAHIE LTD.‑Appellant Versus BAYER HAND ELSGESELLISCHAFT M. B. G.‑Respondent |
Q1: What are the key laws and sections cited in P L D 1976 Karachi 1002 (PLP)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case P L D 1976 Karachi 1002 (PLP)?
The case was heard and decided by the ‑‑ Evidence recorded in earlier suit ordered, by consent of parties, to be read in another case filed later, unless Court decided to record further evidence‑Possibility of recording further evidence, in circumstances. existing Decision of earlier suit without waiting for completion of proceedings in other case, held, not faulty in circum stances.‑Evidence. bench comprising: Abdul Kadir Shaikh, C. J. and Fakhruddin G. Ebrahim, J.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: P L D 1976 Karachi 1002 (PLP) (S. J. & FAZUL.ELLAHIE LTD.‑Appellant Versus BAYER HAND ELSGESELLISCHAFT M. B. G.‑Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- A. Rauf for Appellant.
- Date of hearing : 15th April 1976.
Headnotes / Summary
(a) Sind Chief Court Rules (Original Side)‑ ‑‑ R. 162‑Counter‑claim‑Rule refers to counter‑claim pleaded by defendant in same suit‑Defendant while admitting plaintiff's claim setting up certain pleas and filing separate suit on basis of such pleas for settlement of accounts without claiming an ascertained sum of money‑Rule 162, held, not applicable to such case. (b) Practice and procedure‑ ‑‑ Evidence recorded in earlier suit ordered, by consent of parties, to be read in another case filed later, unless Court decided to record further evidence‑Possibility of recording further evidence, in circumstances. existing Decision of earlier suit without waiting for completion of proceedings in other case, held, not faulty in circum stances.‑[Evidence]. (c) Civil Procedure Code (V of 1908)‑ ‑‑ O. XXI, ff. 18 & 19‑ Set‑off‑Rules 18 & 19 permit parties to set off their claims under decree to avoid "circuity of proceed ings"‑Both rules being relatable to execution proceedings, benefit of provisions of rules, held, could not be available where one suit= decreed and other not yet decreed and not a cross‑claim under same, decree. Rules 18 and 19 of Order XXI, C. P. C. permit the parties to set off their claims under the decree ; the first rule relates to execution of Cross Decrees in separate suits between the same parties and capable of execution. at the same time, by the Court, and the second rule applies in case of cross‑claims of the parties under the same decree‑the object of both the rules being, to avoid, what the Privy Council in Hazari Ram Marwari and others v. Bansidhar Dhandhania and others A I R 1937 P C 39 termed as 'circuity of proceedings". Both the rules referred to are relatable to execu tion proceedings and the plea raised, therefore, is obviously not available in challenge to the decree passed in the suit. Hazari Ram Marwari and others Iv. Bansidhar Dhandhahia and others, AIR 1937 P C 39 ref
Judgment & Decree
ABDUL KADIR SHAIKH, C. J.-This Letters Patent Appeal is directed against the judgment and decree passed by a learned Single Judge of this Court in Suit No. 92 of 1964 on 17th February, 1971. The claim of the respondent-plaintiff, Bayer Handelsgesellschaft M. B. G., a Corporation incorporated in Germany, against appellant, S. J. and G. Fazul Ellahie Ltd., Karachi was based on two Bills of Exchange dated 19-7-1961 and 5-7-1962, for DM 1,89,950.50 and DM 22,061.82, equivalent to Rs. 26.133.33 and Rs. 26,266.66 drawn and accepted by the appellant-defendant, which represented the price of goods sold and delivered to appellant-defendant.
2. Appellant admitted having taken the delivery of the goods on acceptance of the Bills of Exchange, which were actually extended at their request, in turn, however, they raised the only plea in defence that they have a counter-claim against respondent. In regard to this plea, instead of raising a counter-claim or a set-off in the suit itself, appellant filed another suit, being No. 183 of 1966, on 20th August, 1966. This suit is for Settlement of Accounts, between the parties, with no claim to any ascertained amount:
3. Both the suits proceeded on different dates of hearing and the 'Issues' framed by consent of the parties are also different.
4. After the evidence of the parties was recorded in Suit No. 92 of 1964 on 16th February, 1971, learned Single Judge passed the following order :- "By consent it .is agreed and ordered that the evidence recorded in Suit No. 92 of 1964 in which arguments have been heard today shall also be read as evidence in Suit No. 183 of 1966 and that no further evidence shall be led in this latter suit unless the Court otherwise considers necessary. On the basis of this evidence, certain charts have to be prepared, which would require time. Therefore, by consent the hearing of arguments in Suit No. 183 of 1966 is adjourned to 9th March 1971."
5. We may also add that the learned Single Judge has further clarified this position in the judgment in these words :- "However, the defendant neither claimed any set-off in the present suit nor made a counter-claim for the moneys allegedly due to them by the plaintiffs. Instead, they filed a separate suit for these claims which is Suit No. 183 of 19o6, in which the plaint was presented in this Court on 20th August 1966. An application was made by the defendants that the present suit, that is, Suit No. 92 of 1964, and Suit No. 183 of 1966, should be consolidated. But by order, dated 31st March 1969, I declined to do so and left the point to be decided at the trial of the suits By agreement of the parties, incorporated in my order of today in Suit No. 183 of 1966, the evidence in Suit No. 92 of 1964 has been agreed to be read as evidence in Suit N . 183 of 1966. However, Mr. Khalid M. Ishaq tried to argue both the suits together. But I pointed out to him that the causes of action in both the suits were totally dissimilar and different. In the present suit, the claim was for a liquidated sum of money. being the price of goods supplied by ,the plaintiffs to the defendants. In Suit No. 183 of 1966, the claim was mainly based on the alleged tortuous acts committed by the plaintiff's, all relating to causes of action in which, perhaps, if the defendants succeed. only a decree for accounts can be given, but not a decree for specified or liquidated sum of moneys. I, therefore, took the view that both the suits cannot be decided by one judgment, and accordingly arguments in Suit No. 183 of 1966 were ordered to be heard on 9th March 1971, with a view to give time to the present defendants to prepare statements and charts of their claims on the basis of evidence which they have brought on record. Consequently, this judgment is confined only to Suit No. 92 of 1964."
6. In view of the admissions made by the defendant as to the delivery of the goods, the acceptance of the Bills of Exchange and also the price payable as per claim in suit, learned Single Judge decreed the suit as prayed by plaintiff. ,
7. The only submission made by Mr. A. Rauf in support of this Letters Patent Appeal is that appellant having made the counter-claim or pleaded set off, and evidence in Suit No. 92 of 1964 having been treated as common in both the suits, learned Single Judge erred in disposing just one suit, namely Suit No. 92 of 1964, without having given decision in the second suit, namely 'No. 183 of 1966. In support of this submission, learned counsel relied upon Rule 162 of the Sind Chief Court Rules (Original Side) which is to the effect that a counter-claim shall have the same effect as a cross-suit so as to enable the Court to pass a final judgment in the same suit, both on the ,original and on the counter-claim.
8. It is only obvious that this Rule refers to counter-claim pleaded by defendant in the same suit and has no application to the situation in the present case where the defendant while admitting plaintiff's claim in toto has set up certain pleas, on the basis of which be has filed another separate suit for settlement of accounts, without even claiming an ascertained sum of money.
9. In regard to the submission that evidence recorded by learned Single Judge was treated as common in both the suits, the plea in the terms raised is not entirely correct, for after evidence was recorded in Suit No. 92 of 1964, learned Single Judge ordered, by consent. that this evidence will be treated as evidence in Suit No. 183 of 1966, unless the Court otherwise considers it necessary to record further evidence, and his Lordship then adjourned the case in order to give facility to the appellant to prepare certain charts etc. on the basis of the evidence recorded. In the circumstance, possibility of recording farther evidence in Suit No. 183 of 1966 could not altogether .rifled out.
10. On these facts and circumstances, no fault can he found with the learned Single Judge in deciding Suit No. 92 of 1964 without waiting for the, completion of the proceedings in Suit No. 183 of 1966.
11. Mr. A. Rauf then pleaded, as the last resort, that had both the suits been decided together, appellant would have had the benefit of the provisions of Order XXI, rules 18 and 19, C. P. C. 12 Rules 18 and 19 of Order XXI, C. P. C. permit the parties to set off their claims under the Decree ; the first Rule relates to execution of cross, decrees in separate suits between the same parties and capable of execution, at the same time, by the Court, and the second Rule applies in case of cross. claims of the parties under the same decree-the object of both the ruled C being, to avoid, what the Privy Council in "Hazari Ram Marwari and other v. Bansidhar Dhandhania and others (AIR1937PC39) termed as "circuity of proceedings" Both the Rules referred to by learned counsel are relatable to execution proceedings and the plea raised, therefore, is obviously not available in challenge to the decree passed in the Suit.
13. For these reasons, we find no merit in any of the submissions made before us, and dismiss this Letters Patent Appeal.
14. Before parting we may record the fact that this Appeal does not bear sufficient Court fees but we heard it on merits, without reverting to this aspect, the anxiety being that this old appeal filed in 1972 should not remain pending on the file of this Court. S. A. H. Appeal dismissed.