ORDER SHEET

Order Sheet

IN THE HIGH COURT OF SINDH KARACHI

High Court Appeal No. 219 of 2018

Date	Order with signature of Judge

Hearing (Priority) Case :

1. For orders on office objection / reply as at “A” :

2. For hearing of CMA No.2727/2018 (Stay) :

3. For hearing of Main Case :

29.11.2018 : M/S Khalid Mehmood Siddiqui and Ghulam Rasool,

advocates for the appellant.

Mr. Muhammad Sarfaraz Sulehry, advocate for the respondent.

…………

This appeal is directed against the judgment and decree dated 20.01.2016 and 16.05.2016, respectively, passed by a learned single Judge of this Court in Suit No.08/1995, whereby the said Suit filed by the appellant against the respondent for declaration, injunction and damages, was dismissed. In the above Suit, following six (06) issues were settled :

“i. Whether the suit filed by the plaintiff is maintainable in law ?

ii. Whether plaintiff / defendant committed any breach of contract dated 03.11.1994 ?

iii. Whether the defendant was justified to terminate the contract according to terms and conditions of the contract ?

iv. Whether the defendant was justified for (!) encashment of Bank Guarantee furnished by the plaintiff according to contract ?

v. Whether plaintiff suffered any losses and is entitled to any compensation ?

vi. What should be the decree ?”

Evidence was led by the parties by producing their respective witnesses and relevant documents in support of their respective cases. The first issue regarding maintainability of the Suit was decided in favour of the appellant / plaintiff, whereas issues No.2, 3 and 4 were decided against him. Regarding issue No.5, it was held in the impugned judgment that the same had become redundant in view of the findings on issues No.2, 3 and 4. In view of the above, the appellant’s Suit was dismissed.

We have heard learned counsel for the parties at considerable length and have also examined the material available on record with their able assistance. Perusal of the impugned judgment shows that issues No.2, 3 and 4 were decided together by observing that the controversy between the parties started from obtaining permission from the customs authorities required in respect of the subject imported item ; the plaintiff (appellant) had claimed that the requisite permission was obtained, but the same was denied by the officials of the defendant (respondent) ; it was claimed by the defendant that the permission obtained by the plaintiff was not acceptable as the same was withdrawn and as such was not available with the plaintiff ; the question whether the alleged permission was the required one or not need not be discussed as the same would be an academic exercise ; parties had not examined any customs or CBR official in this regard, however, correspondence whereby the permission was withdrawn was available on record ; it was open for the plaintiff to either approach the Court where the earlier litigation had taken place or to initiate new proceedings, but the plaintiff preferred not to avail any of the said remedies ; despite suffering the alleged losses, the plaintiff kept on approaching the defendant by way of correspondence which is beyond understanding ; the evidence produced at best can be said to be in support of discrimination ; for such pleading the required material viz. agreements with other parties were not produced, however, had such material been produced, even then the same would not have made out a case of discrimination ; and, in view of the above discussion, termination of contract by the defendant resulting into encashment of bank guarantee cannot be said to be unjustified.

It may be noted that issues No.2, 3 and 4 were the main issues relating to the alleged breach and termination of contract and encashment of bank guarantee by the defendant / respondent, and the same would have decided as to who had committed breach of the contract and whether or not the defendant / respondent was justified in terminating the contract and encashing the bank guarantee. In other words the fate of the Suit was dependent entirely upon the findings and decision on these issues. We are of the considered view that though the said issues were decided against the appellant, but the reasons for coming to such conclusion are lacking in the impugned judgment. The tenor of the impugned judgment shows that the conclusion drawn on the said material issues is based on mere observations and not reasons. With all humility, it is observed that in the absence of logical and sound reasons, the impugned judgment cannot be said to be a speaking one, and as such the same is not sustainable in law.

In view of the above, the impugned judgment and decree are set aside and Suit No.08/1995 is remanded back to the learned single Judge for decision afresh on merits after hearing the parties and by recording proper reasons and findings on each and every issue through a speaking judgment preferably within a period of six (06) months. The appeal is allowed in the above terms with no order as to costs and listed application stands disposed of accordingly.

J U D G E