IN THE HIGH COURT OF SINDH, AT KARACHI
IInd Appeal No.147 of 2010
Venus Distributors (Pvt) Ltd. ……………………………………… Appellant
Versus
Abdullah Hanif and others…… ………………………………….Respondents
Date of hearing 11.02.2014
Date of judgment 14.02.2014
Mrs. Perveen Pervaiz, advocate for the appellant.
Mr. Khalid Javed, advocate for the respondent No.1
None present for respondent No.2 & 3.
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J U D G M E N T
Abdul Maalik Gaddi, J Through this second appeal, the appellant has assailed the legality and propriety of the judgment and decree dated 18.10.2010 passed by the learned IIIrd Additional District Judge, Karachi West in Civil Appeal No.77/2009, whereby the judgment and decree dated 11.03.2009 passed by the learned IV Senior Civil Judge, Karachi West in Civil Suit No.72/2004 was maintained.
2. Briefly, the facts of the case arising to file instant appeal are that the Respondent No.1/plaintiff filed Suit No.72/2004 for recovery of Rs.13,55,635/- against appellant/defendant stating therein that he is dealer of Shell Pakistan Ltd. And sole proprietor of a petrol pump in the name and style of Abdullah Filling Station. The respondent No.1 supplied petrol and diesel to the appellant in the month of March and April, 2003 and that appellant made some payment but the balance payment of Rs.13,55,635/- has not been made by the appellant, therefore, the respondent No.1 filed suit for recovery of the said amount.
3. The appellant/defendant contested the suit by filing the written statement wherein the appellant/defendant has denied the claim of the respondent No.1. The appellant contended in written statement that the respondent No.1’s employees are fully involved in fraud to short supply of petrol and diesel to the appellant during the period from July 2002 to March 2003 due to which the appellant suffered heavy monitory loss and resultantly an F.I.R. No.56/2003 under Section 420/34 PPC registered at Police Station, Sher Shah, Karachi, the investigation was conducted therein by the concerned police officer against the accused persons and challan was submitted in the Court of Law alleging therein that the accused persons were involved in the entire illegal transaction of petrol and diesel as well as misappropriation of the amount and fraud with the appellant company and its owners.
4. On the basis of the pleadings of the parties, the trial Court has framed following issues:
1. Whether the suit is not maintainable under the law?
2. Whether no cause of action has accrued to the plaintiff for filing the above suit?
3. Whether the plaintiff has not supplied petrol high speed diesel and oil to the defendant in the year 2003 on credit basis?
4. Whether the defendant has failed to make payment to the plaintiff for the supply made to it in the months of March and April 2007?
5. In order to prove their respective claim the respondent No.1 has filed the affidavit in evidence of Abdullah Hanif and Liaquat Ali along with the detail of outstanding amount against appellant.
6. On the other hand, the appellant has filed the affidavit in evidence of one Haiyan Mehmood. Parties advocates have cross examined the witnesses of each other before the trial Court.
7. I have heard the learned counsel for the parties at length and have perused the evidence and documents on record with due care.
8. It is contended by the learned counsel for the appellant that the learned Courts below have given absurd findings on the issues involved in this case and passed the impugned judgments without going through the documents placed on record and without holding any inquiry into the matter, therefore, the impugned judgments are not sustainable in the eye of law. She further submitted that the learned Courts below have failed to appreciate that the respondent No.1 and his employees committed fraud with the appellant by short supply of petrol and diesel to the appellant, resultantly an FIR No.56/2003 under section 420/34 PPC registered at P.S. Sher Shah, Karachi, wherein the investigation officer conducted inquiry and by establishing the case against accused, submitted challan before the competent Court of law but the learned lower Courts without considering the contents of the said FIR and challan and without holding inquiry into the matter passed the impugned judgments which are liable to be set-aside. She has next argued that the learned IVth Senior Civil Judge, Karachi West, without hearing the appellant decreed the suit of the respondent No.1 without any legal justification.
9. On the other hand, learned counsel for the respondent No.1 has supported the impugned judgments and decrees passed by two Courts below and has argued that the respondent No.1 through his documentary evidence has successfully proved his case and that the appellant’s witness admitted in cross examination that no amount as prayed by the respondent No.1 has been paid and he is ready to pay the amount to the respondent No.1. He has further submitted that both the Courts below after perusing the evidence of the parties and hearing them passed the judgements in accordance with law in favour of respondent No.1.
10. I have examined the evidence and documents so brought on record by the parties and I have thoroughly examined the entire record in the light of arguments advance before me by both the sides and come to this conclusion that respondent No.1 filed suit for recovery of Rs.13,55,635/- and submitted that he is sole proprietorship concern, is a dealer of Shell Pakistan Limited and is running a petrol pump in the name and style of Abdullah Filling Station and supply all kinds of petrol and diesel including super petrol, high speed diesel, oil tins, helix four stroke and allied items on cash as well as credit basis.
11. The respondent witness Liaquat Ali, Manager, in order to establish his claims deposed that Shell Pakistan is sole proprietor of petrol pump, sold petroleum product to the appellant on credit basis and as practice the employees of the appellant used to come with printed slip and against said slips purchased petroleum and used to maintain account. In paragraph No.4 of the plaint the respondent pleaded that as per previous practice respondent No.1 sold petroleum products in March and April, 2003 against printed slips on credit basis, therefore, bill was sent but payment has not been made.
12. The appellant witness namely Haiyan Mehmood during his cross examination has admitted the claim of respondent No.1. For the sake of convenience, it would be proper to reproduce the cross examination of the said witness which reads as under:-
“it is correct that he has not produced any resolution which was passed by the defendants company, which shows that he is authorized person to give the evidence in this case, vol. says he filed the same before the Judicial Magistrate Karachi crime proceeding, it is correct to suggest that he has not disclosed in his affidavit in evidence that the defendant’s company authorized him to give the evidence in the present suit or passed any resolution, it is correct that he has not submitted any authority as to show that he is the authorized person to give the evidence before the Court in the present suit. It is correct that the defendant obtained the diesel and petrol from the plaintiff on credit basis for which the plaintiff issued the receipt to the defendant, it is correct that whenever the defendant’s company required diesel and petrol from plaintiff’s station the defendant filled the receipts, which were issued by the plaintiff for obtained petrol, it is correct that the said receipts or slips have required signing more than one employees of defendant’s company, he has seen the receipt which are submitted by the plaintiff in his case, these are annexed with the plaint, in the month of March 2003, the fraud and misappropriation of petrol and diesel by Naseer Ahmed defendant’s company employees, the defendant’s company till 21 April 2003, he has not produced any complaint before the plaintiff regarding the misappropriation or misuse of petrol or diesel by our employees, it is correct that he has not filed any documents before the Court as to show that how much quantity of petrol or diesel misappropriated by defendant’s employees, it is correct that we have not any other evidence, it is correct that the criminal case is pending before the Judicial Magistrate Karachi West, we did not file any claim regarding any loss referred by him in his affidavit in evidence, the defendant’s company is ready to pay the balance amount after conclusion of criminal case the remaining balance amount after deduction of Rs.5 to 6 lacs subject to condition upon the decision of criminal case. It is correct that he has not mentioned or produce any evidence before the Court to the effect, it is correct that he filed the photocopy of documents along with his affidavit in evidence viz annexure P/1 to P/5 were delivered by the plaintiff, that he admitted in the present suit they have no evidence as to proof that there was no any company short supply and non supply of petrol and diesel to the defendant’s company except the statement of Naseer Ahmed who is the employee of company, vol. say we have paid which is lying our office.”
13. In the light of above evidence both the Courts below have accepted the claim of respondent No.1.
14. It is argued by learned counsel for the appellant that the respondent No.1’s employees were fully involved in fraud to short supply of petrol and diesel to the appellant during the period from July 2002 to March 2003 due to which the appellant suffered heavy monetary loss and resultantly an FIR No.56/2003 under Section 420/34 PPC registered at P.S. Sher Shah.
15. Reverting to the contention as raised by the learned counsel for the appellant, it is suffice to say that accused persons nominated in the FIR have been acquitted, therefore, in the light of admission by appellant witness namely Haiyan Mehmood, the appellant is liable to pay the suit amount to the respondent No.1.
16. It is also argued by the learned counsel for the appellant that the learned IVth Senior Civil Judge, Karachi West, accepted the claim of the respondent No.1 without hearing the appellant. This fact has been denied by Mr. Khalid Jawed, learned counsel for respondent No.1 and according to him as per judgement of the learned IVth Senior Civil Judge, Karachi West, it transpires that the judgement was passed after hearing the parties. Nothing on record to show that the appellant has not been heard by the learned IVth Senior Civil Judge, Karachi West, before passing the judgment. Be that as it may, under Article 129 (e) of Qanune-e-Shahadat, 1984, which says that presumption of truth is attached to the record of the Court. Nothing is brought on record to show that counsel for the appellant was not heard. Even the affidavit of appellant or his counsel is not filed to this effect. In this regard, I am supported with case law reported in Syed Ali Asghar and 3 others v. Creators (Builders) (2001 SCMR 279). In this case, it has been held as under:
“Art. 129. Judicial and official acts. Presumption of truth. In absence of legal and valid material on record, legal presumption under Art. 129, Qanune-e-Shahadat, 1984 is that the judicial and official acts have been regularly performed.”
On this point, I am further supported with this case law reported in Muhammad Ali and 25 others v. Hassan Muhammad and 6 others (P.L.D 1994 SC 245).
17. Under these circumstances, the plea raised by learned counsel for the appellant has no force.
18. In view of the above discussion the learned Senior Civil Judge, held that respondent No.1 by way of convincing evidence on record proved his case and directed the appellant to pay the suit amount to the respondent No1. This findings of learned Senior Civil Judge, were upheld by the learned Appellate Court. Thus it appears that there are concurrent findings of the two Courts below against the appellant which cannot be disturbed unless it is shown that findings are against the evidence on record. Besides, conditions for filing second appeal under Section 100 CPC are also missing in this case. Learned counsel for appellant failed to point out any illegality or infirmity in the impugned judgments.
18. In view of above, I find no merits in this Second Appeal, which is accordingly dismissed with no order as to cost.
J U D G E