1993 PLP 630 (MLD)

(iii) Whether after proper accounting nothing will be found payable and due by the defendants to the plaintiff? (iv) Whether the defendants' Fishing Boat Zulfiqar is worth Rs.80 to 90 thousand and Godown is worth Rs.2 lacs? (v) Whether the claim of the plaintiff is time‑barred? (vi) Whether the suit of the plaintiff is not maintainable as no address for service has been given? (vii) Whether the suit is bad under section 69 of Contract Act and is not maintainable? (viii) To what relief, if any, the plaintiff is entitled?

2. The plaintiff examined Khalid Ahmed, Exh.5 and Shaikh Salahuddin Shsami, Exh.11. The defendants did not produce any evidence and consequently their side was closed on 27‑11‑1991.

3. I have heard the arguments of Mr. Gulzar Ahmed, the learned counsel for the plaintiff, The defendants and their counsel have remained absent. My findings on the issues are as follows: ‑‑ ISSUES NOS.1 AND 2,‑‑‑The burden of these issues was on the defendants and they have failed to produce any evidence. ISSUE NO. 3.‑‑‑This issue relates to the amount claimed by the plaintiff in the suit and arises from the plea of the defendants in their written statement. The plaintiff's witness Khalid Ahmed has produced a statement of account as Exh.8. That statement of account was not challenged in cross‑examination. The issue is, therefore, decided in the negative. ISSUE NO 4.‑‑‑This issue, "whether the defendants' Fishing Boat Zulfiqar is worth Rs.&1 to 90 thousand and Godown is worth Rs.2 lacs", is not relevant to the claim of the plaintiff in the suit and the liability of the defendants. In any event, the burden was on the defendants who have failed tq produce any evidence. The issue is, therefore, decided in the negative. ISSUE N0.5.‑‑‑According to the plaint and the evidence of the witnesses of A the defendants, an overdraft facility was granted on 26‑4‑1975 and all, relevant 30 documents which have been produced by the witness, Shaikh Salahuddin Shami, were also executed on the 26th April, 1975. No question was put to those witnesses with regard to the date of the overdraft or date of the p execution of the documents. In fact the allegations in para. 3 of the plaint that the overdraft was granted on 26‑4‑1975 has been admitted in the written statement. The suit which was filed on 5‑5‑1976 is, therefore, not barred by limitation. ISSUE No.6 ‑‑‑This issue arises from the plea in paragraph 11 of the written statement that the address for service has not been given as required by law, Mr. Gulzar Ahmed points out that the address for service has been filed with the plaint and is on record. The issue is, therefore, decided in the negative. ISSUE No 7.‑‑This issue does not arise simply because the suit has not been filed by the partnership firm or its partners but against them. Section 69 of the Partnership Act is, therefore, not attracted in this case. ISSUE No.8.

ln view of the findings on the above issues and in view of the evidence on record, the plaintiff is entitled to the relief claimed in the suit. However, as mortgage of immovable property pleaded in para. 4 of the plaint 8 has not been proved, no mortgage decree can be passed. Mr. Gulzar Ahmed ays that he would be satisfied if money decree is passed against the efendants. The suit of the plaintiff is, therefore, decreed against the defendants jointly and severally for Rs.1,28,510.96 with interest thereon at the ate of 13?lo per annum from the date of the suit till realization and costs of the suit. H‑333/K????????????????????????????????????????????????????????????????????????????????????????????????????????? Suit decreed.