2011 PLP 1993 (MLD)

SYED SAJJAD HASSAN SHAH, J.

Through the instant revision petition, the petitioner Khushdil Khan has called in question the validity of judgment and decree dated 18-5-2006 passed by learned Additional District Judge-II, Lakki Marwat, whereby the appeal filed against the judgment and decree dated 7-4-2005 of learned Senior Civil Judge, Lakki Marwat was accepted and the suit of respondent-plaintiff for recovery of a sum of Rs.1,09,686 was decreed in his favour.

2. Briefly stated the facts are that Haji Dilawar Khan respondent-plaintiff filed a suit for recovery of Rs.1,09,686 against the petitioner-defendant. The suit was contested by the petitioner-defendant by filing his written statement. The learned trial Court framed issues arising out of divergent pleas of the parties raised in the pleadings. The respondent-plaintiff produced his evidence whereas the defence of the petitioner-defendant was struck of under Order XVII Rule 3 C.P.C, as he failed to produce his evidence within the period directed by the Court. After hearing the arguments, the learned trial Court dismissed the suit of the respondent-plaintiff.

3. Feeling aggrieved, the respondent-plaintiff filed appeal which was accepted by the learned appellate Court, the judgment and decree of the learned trial Court was set aside and suit of the respondent-plaintiff was decreed. Hence, the instant revision petition by the petitioner-defendant.

4. The learned counsel for the petitioner-defendant, at the very outset, contended that the suit of respondent-plaintiff was time barred, thus, it was illegally decreed by the learned appellate Court. In support of his arguments, the learned counsel referred Article 52 of the Limitation Act and contended that the period provided for filing such suit is three years. He further contended that the respondent-plaintiff, in paragraph-7 of his plaint, averred that cause of action accrued on the final settlement between the parties on 31-12-1998. He further contended that, as per plaint, two moths prior to the institution of suit, the petitioner-defendant has refused to pay the amount. His next submission was that the respondent-plaintiff miserably failed to prove the details of payment mentioned in Exh.P.W.1/2 to Exh.P.W.1/8. In these circumstances, the respondent-plaintiff has no locus standi to file suit against the petitioner-defendant, as the document neither bear the signature of the person who prepared the document nor the document was proved at all by producing evidence and the decree was passed without any basis and material. Moreso, the learned appellate Court has not mentioned in its judgment that which of the Articles of the Limitation Act provides cover to the matter in hand.

5. As against that, the learned counsel for the respondent-plaintiff supported the judgment of the learned appellate Court and contended that the impugned judgment and decree has been passed after scanning the entire evidence, no illegality or irregularity has been committed by the learned appellate Court while passing the decree in favour of the respondent-plaintiff. He, however, while rebutting the arguments of learned counsel for the petitioner-defendant, placed reliance on Article 120 of the Limitation Act wherein a period of six years has been provided to file the suit, for which no period of limitation has been provided within the scheme of Limitation Act.

6. I have considered the submissions of learned counsel for the parties and carefully perused the record.

7. Viewing the record of the case, it transpired that the respondent-plaintiff is the owner of brick kiln and used to sell the bricks. The detail of sale used to be entered in the Khata shown in the documents brought on record, because same is the custom prevailing in brick kiln business. The respondent-plaintiff asserted that a sum of Rs.1,09,686 was outstanding against the petitioner-defendant as per entries made in the above documents. The parties made the final settlement as per the entries available on said documents on 31-12-1998. Since 31-12-1998 till filing of the suit on 2-1-2002, no efforts were made to recover the amount claimed therein. The respondent-plaintiff in his statement also stated that two months prior to the institution of the suit, the petitioner-defendant refused to pay the amount but his this statement has not been supported by any witness produced by him. In such eventuality, the time for filing suit would be reckoned from 31-12-1998 as per provision contained in Article 52 of the Limitation Act which provides that for the price of goods sold and delivered, no fixed period of payment is agreed upon, three years from the date of delivery of the goods. In this way, the suit of the respondent-plaintiff is hopelessly time barred, because it is filed after passage of more than four years. The learned counsel for the respondent-plaintiff failed to bring his case within the purview of Article 120 of the Limitation Act, therefore, the said Article is not applicable. The suit has been filed after the period of limitation, therefore, on this ground the judgment of the learned appellate Court is not sustainable.

8. The next point agitated by learned counsel for the petitioner-defendant is about the determination of evidentiary value of the documents containing the detail of Khata. These documents would not be considered as the legal proof for awarding the decree in favour of respondent-plaintiff, because these documents are not legible and there are interpolations and over-writing made upon these documents which make the authenticity of documents as doubtful and cannot be relied upon. More so, the author of the documents never appeared to testify the entries made therein, none of the documents is signed by its author. The entries made therein also seem to be dubious in nature and hardly can be relied for passing a decree in favour of the respondent-plaintiff. The learned counsel for the respondent-plaintiff wanted to persuade the Court that these documents enjoy the blessing of Article 48 of Qanun-Shahadat Order which pertain to the entries in book of accounts regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire but such statement shall not be alone sufficient evidence to charge any person with liability. No doubt this Article provides that the entries in books of account to be a relevant fact but such statement shall not alone be sufficient evidence to saddle any person with the liability. Onus of proof lies on such person who has placed reliance upon such entries and he is under the bounden duty to produce corroborating evidence not through oral account but in the shape of vouchers or receipts or cash memos to show that the entries are factually correct.

9. A perusal of this Article vividly reveals about certain pre-requisites in order to make entries relevant and admissible under this Article and those are that:-- (a) the said entries are books of account, (b) the said books of account are regularly kept in the course of business, (c) the said entries alone be not sufficient enough to charge any person with liability. It is also the duty of the litigant relying on those entries either to call persons who had themselves made those entries or produce the corroborating evidence as stated above. It is the requirement of law that each and every item of the entries made therein has to be proved, as no presumption of correctness attaches to them, as such, the value of such entries is merely corroborative in terms of the afore-cited Article. In view of the above principle of law embodied in said Article, no person can be charged with liability only on the basis of entries in account book or on the basis of copies of these entries which have not been duly proved. It is also the legal obligation of the person who is relying upon the entries to prove by examination of those persons in whose presence the payment was made. Reliance placed on case titled Haji Jooma Arbi and Sons v. Abdur Razzak Ltd., (1968 SCMR 516) wherein it is observed that:-- The defendants, however, did not examine the officer who made the entries or the persons before whom payments were made. In these circumstances, the appellate Court was justified in not placing much reliance on the said entries in the account books of the defendants." Section 34 of the Evidence Act, the corresponding Article 48 of Qanun-e-Shahadat Order came for consideration before their lordships of the Supreme Court. After ostensive discussion, it has been laid down in Siri Siri Raja Lakshmi Narayan Jew and others v. The Province of East Pakistan (1969 SCMR 898) that:-- "Merely because the accounts were kept in books which look like regular books usually maintained in katcheries of local Zamindaris. It did not follow that all the entries therein were correct. It is a mistake to think that the mere production of the books of account proves each item of an entry therein, particularly where the correctness of such entry is specifically challenged as it was in this case. In such circumstances, it is the duty of the party relying upon those entries either to call persons who had themselves made those entries or produce corroborating evidence in the shape of vouchers or receipts or cash memos, to show that the entries are factually correct. Nothing of the kind was done in the present case. Some of the writers of the accounts who were alive and available were not even examined as witness to support the entries made by them nor even any corroborating evidence produced even though available. We are unable, therefore, to accept these entries therein as genuine." Similar view has been followed in cases titled Messrs Pakistan International Airlines v. Messrs National Bank of Pakistan and another (1985 CLC 438), Akram Moquim Ansari and 3 others v. Mst. Ansari Begum and another (PLD 1971 Karachi 763) and Asio African Company Ltd. v. Chaudhary Mukhtar Ahmad (PLD 1968 Karachi 37).

10. The evidentiary value of the said documents can be determined by the cross-examination of P.W.1 which by itself is sufficient to dispel the propriety and validity of these documents. Moreover, it is alleged that the petitioner-defendant has signed the document but that signature has not been confronted to the petitioner by summoning him as per requirement of Article 140 of Qanun-e-Shahadat Order. Moreover, no proof has been brought on record by means of the expert evidence that the signature has been made on the said document.

11. The evidence available on record has also been examined which is insufficient to pass a decree in favour of the respondent-plaintiff. The learned appellate Court has not gone through the above mentioned legal and factual aspect of the case and just passed the judgment and decree in slipshod manner which is not permissible under the law, hence, cannot sustain.

12. For the reasons mentioned above, this revision petition is accepted, the judgment and decree of the learned appellate Court dated 18-5-2006 is set aside and that of the learned trial Court dated 7-4-2005 dismissing the suit of respondent-plaintiff is hereby restored, leaving the parties to bear their own costs. S.A.K./266/P Revision accepted.