1988 PLP 726 (CLC)

Nemo for Respondents (absent). Date of hearing: 13th May, 1987. This appeal is directed against the judgment of Second Senior Civil Judge, Karachi whereby he dismissed the appellant's suit. The appellant is a Food Manufacturing Industries. The respondent No. 1 is its agent in Peshawar, which receives product of the appellant from Karachi, and sells it at Peshawar. Respondent No. 2 is carrier of the goods from Karachi to Peshawar. The appellant used to send goods of its Industries to the respondent No. 1 through respondent No. 2 from time to time. The appellant has claimed that the respondent No. 1 had received products of his Industries and had not made the payment of the price for it. He had supplied goods worth Rs.42,590.19 to the respondent No.

1. Some of the consignments referred to above were sent by the appellant through the respondent No. 2 and some through other carriers. The consignments that were sent through respondent No. 2 were of goods worth Rs.21,591.17. There were clear directions given in the bilty by the consigner that goods should not be delivered without first getting that bilty retired from the bank. The respondent No. 2 disregarded this directions of the consigners and released the goods to the consignee without producing the same before the carrier. The biltys in question have not been disputed nor the directions made upon them. In para. 6 of the written statement it has been clearly admitted that all the consignments mentioned in para. 5 of the plaint were duly delivered to the respondent No.l, without receiving any payment from them. Issues Nos. 5 and 6 related to the liability of the respondent No.2. On 2‑10‑1986 this Court had allowed this appeal in part and reversed the findings of the trial Court on these 2 issues and found them against respondent No. 2 and decreed the suit against the respondent No.2. The appeal so far as it related to respondent No. 1 was adjourned as Mr. Nasrullah Awan wanted to produce the certified copy of the judgment of Peshawer Civil Court which was referred to by the learned trial Court in its judgment. I have gone through the certified copy of the judgment of Senior Civil Judge, Peshawar, dated 30‑3‑1982 which is in Urdu and reads as under:‑ From the above judgment it is quite clear that suit for accounts filed by the respondent No.l against the appellant at Peshawar has been dismissed and, therefore, the plea of an earlier suit, pending between the parties is no more available to respondent No.l. Issues Nos. 1 to 4 and 7 to 10 only are relevant for the purposes of determination with regards to appeal against the respondent No.l. No cross‑appeal has been filed by the respondent No. l and, therefore, this Court will have to confine itself only to these issues which have been decided in favour of respondent No.

1. Issue No.l is decided against the appellant and, therefore, it will have to be taken under consideration, similarly issues Nos. 3, 4, 7 and 9 which also have been decided against the appellant. As against these issues Nos. 2, 8 and 10 have been decided in favour of the appellant and against the respondent No.l and, therefore, the same cannot be taken into consideration particularly because there is no appearance for the respondent No.l. Moreover these issues are issues of law and I feel that the findings of the Trial Court on these 3 issues in favour of the appellant are proper and do not require re‑examination. Coming to the former issues it may be pointed out that the main reason for which the learned trial Court has decided these issues against the appellant is that there was relationship of principal and agent between the parties and that in view of the such relationship a suit for account should have been filed and not the suit for recovery of a specific sum of money. It is true that there is relationship of principal and agent between the parties. There is a liability on the agent to render the accounts and ordinarily the principal can call upon him to render such accounts by filing the suit for accounts, but this principle is also subject to exceptions particularly in a case when a principal alleges that he has given full account of supplies made by him and , had deducted commission etc. to which the agent was entitled and after deducting the same he was in a position to state the amount which is due to him from the agent. In such a case he can directly file a suit for specific amount. The appellant has examined. In Safuddin as Exh.No.l who is a Sales Manager of their firm. He has stated on oath that he had supplied goods worth Rs.42,732.43 to respondent No.l from June, 1972 to September, 1972. He has further stated that Rs.21,994.41 were adjusted towards commission and discount due to respondent No.l leaving a balance of Rs.20,737.02. From June 1974 to August, 1974, they supplied goods worth Rs.21,591.17 to respondent No.l. He has produced the relevant receipts and bills to evidence the same. The net balance due from the respondent No.l Rs.42,590.19 out of which an amount of Rs.21, 591.17 is payable jointly and severally as already shown above. Out of this amount respondent No. 2 had paid an amount of Rs.10,000 to keep good relations between him and appellant and, therefore, there is a balance of Rs.11,591.17. The respondent No.l has not led any evidence to show that any other amount or any amount in excess of that which has been accounted for by the appellant is due to him from the appellant. Even from the cross‑examination of this witness by the advocate of the respondent No.l no such liability has been found. Under these circumstances, I am of the clear view that the findings of the learned trial Court on these issues against the appellant cannot be sustained. 1, therefore, allow the appeal and reverse the findings of the lower Court and set aside the judgment and decree passed by it even against the respondent No.l. I, therefore, decree the appellant's suit against the respondent No.l also to the extent of Rs.11,591.17 with costs. It may be mentioned that the liability of respondent No. 1 will be jointly and severally with that of respondent No.

2. H. B.T'/A‑224/K????????????????????????????????????????????????????????? Appeal allowed.