' CH.. IJAZ AHMAD, J.-- Respondent filed a suit for rendition of account against appellant before the Civil Judge, Khushab. The contents of the plaint reveal that respondent/plaintiff had obtained a contract from the appellant/defendant for the collection of octroi duty, toll tax for Rs,20,60,000 for the year 1981-82. The period of the contract was fixed from 1-10-1981 to 30-7-1982. An agreement was also executed between parties on 29-10-1981. The contents of the plaint further reveal that during the continuance of the contract, Government of the Punjab exempted the public vehicles from the payment of toll tax on account of this exemption respondent/plaintiff had to incur a heavy loss. A cattle market was to be held in the limits of the Town Committee, Jauharabad but it could not beheld whereas cattle market took place under the control of Municipal Committee, Khushab on account of which the plaintiff had to face a heavy financial loss. The contents of the plaint further show that during the period of contract, there occurred a strike of vehicles, due to which the plaintiff had to face a heavy monetary loss. Respondent/plaintiff approached the defendant committee as well as to the District. Collector being the Controlling Authority to make good the loss of the respondent/plaintiff occurred to him on account of aforesaid reasons under clause 17 of the agreement, but they did not redress the grievance of the respondent/plaintiff. The respondent/plaintiff was constrained due to said circumstances to file a suit. For rendition of account against the appellant/defendant. The appellant/defendant filed written statement and controverted the allegation levelled in the plaint. Out of the pleadings of the parties, the trial Court framed following issues:-- Issues
(1) Whether the plaintiff has no cause of action and locus standi to bring the present suit? OPD
(2) Whether the plaintiff is estopped by his own conduct to bring the present suit? OPD
(3) Whether the suit is not maintainable? OPD
(4) Whether the plaintiff is entitled to decree for rendition of account? OPP
(5) Relief.
2. The appellant/defendant failed to produce any evidence and the preliminary decree was passed by the trial Court against the appellant vide judgment and decree dated 14-3-1988. The appellant being aggrieved filed appeal before the Additional District Judge, Khushab who dismissed the same vide judgment and decree dated 16-2-1989. The trial Court appointed a Local Commission which submitted his report before the trial Court on 8-10-1989. The appellant/defendant filed objection against the report of Local Commissioner. The trial Court framed the following issues out of the pleadings of the parties:-- Issues
(1) Whether the report of the Local Commissioner dated 5-12-1985 is liable to be set aside? OPA
(2) Whether the objections filed by the petitioners are barred by limitation? OPR
(3) What is effect of additional objection No,2 of the written reply? OPR
(4) Relief.
' The trial Court passed the final decree against the appellant vide judgment and decree dated 26- 4-1993, hence the present appeal. Appellant also filed Civil Miscellaneous No,1/C of 1993 under Order 41, rule 27, C.P.C. For production of additional evidence. The learned counsel of the appellant submits that respondent/plaintiff invoked the arbitration clause before the Deputy Commissioner in terms of clause (7) of the agreement agreed between the parties who dismissed all the three applications, the respondent/plaintiff did not mention this fact in his suit. He further submits that former Chairman of the Committee of the appellant was nearest relation of the respondent, therefore, under his influence no evidence was produced before the trial Court, therefore, impugned preliminary decree was passed against appellant. The appellant filed appeal before Additional District Judge, who dismissed the same on 16-2-1989. Thereafter, under the influence of the former Chairman of the Committee of the appellant, the appellant did not challenge the judgment and decree of the Additional District Judge dated 16-2-1989 before this Court. He further submits that the huge amount of public exchequer had to be paid by the appellant to the respondent on account of in action and connivance of the former Chairman of the Committee of the appellant. He further urged that report of the Local Commissioner is also vague and the trial Court was not justified to rely upon he vague report of the Local Commission. He further urged that trial Court was erred in law to dismiss the objections of the appellant against the report of the Local Commission. The learned counsel of the respondent submits that preliminary decree was final as the appellant did not challenge the judgment and decree dated 16-2-1989 of the Additional District Judge before any higher forum. He further submits that the trial Court had appointed very senior counsel as Local Commission who has submitted his report with cogent reasons and determined the amount and trial Court rejected the objections of the appellant with cogent reasons. He further urged that application for additional evidence of the appellant is not sustainable in the eyes of law.
He further submits that nobody should be allowed to get the benefits of his own misdeeds. He further urged that formal Chairman did not pass any order in favour of the respondent/plaintiff.
The respondent/plaintiff has to agitate the matter before House and all the orders were passed in favour of the respondent/plaintiff by the House of the Committee, therefore, allegation of the appellant is not sustainable in the eyes of law.
3. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused record ourselves. It is better and appropriate to reproduce material facts in chronological order to resolve controversy between the parties. Respondent/plaintiff filed suit against appellant for rendition of account, appellant/defendant failed to produce any evidence before the trial Court. Trial Court passed the preliminary decree against the appellant vide judgment dated 14-3-1988. The appellant filed appeal before the Additional District Judge who dismissed the same vide judgment dated 16-2-1989.. The appellant did not challenge the aforesaid judgment and decree before any higher forum. In case the 'aforesaid facts are put in juxtaposition then it is crystal clear that 'preliminary decree has become final between the parties.
4. In this view of the matter the application of the appellant under Order 41, rule 27, C.P.C. For additional evidence is liable to be dismissed on the well-known principle. That nobody is allowed to fill up the lacuna at belated stage specially when several opportunities were granted by the trial Court. In arriving to this conclusion we are fortified by Ali Muhammad and others v. Mehnga 1991 CLC 1574 and Ghulam Muhammad and others v. Shah Wali PLD 1956 Lah.
756.
5. It is better and appropriate to reproduce operative part of the impugned judgment and decree to resolve the controversy between the parties:-- "So far this issue is concerned the objector/defendant has not produced any independent, concrete, and trustworthy evidence. However, the learned Local Commissioner Malik Muhammad Sharif, Advocate was examined as C.W.1, who categorically stated that he has submitted his report in the Court, in anticipation of judgment and decree of Court dated 14-3-1988, which is Exh.C.1, and the same is in his own handwriting and signed by him. In his cross-examination by the learned counsel for the objector/defendant he has stated that he is not armed with any special diploma in accounts and that the record pertaining to the recovery of toll tax was not available during the period of strike w,e,f, 23-11-1981. He has further asserted that he examined the documentary evidence produced by the defendant/objector during the proceedings carried on by him in the capacity of Local Commissioner and that he is not in a position to depose about the auction amount of toll tax for the years 1981 and 1989. Similarly he is unable to state -as to whether there was 5 times difference in the amount of auction of amounts of toll tax for the years 1981 and 1989. In his cross-examination by the learned counsel for the plaintiff, he admitted that the dispute among the parties also pertains to the amount of auction of cattle market."
"After adjudging the arguments advanced by the learned counsel for both the sides and evaluating the evidence on the case file I have come to the conclusion that the objector/defendant has miserably failed to substantiate his objections regarding the report of the Local Commissioner dated 5-12-1985 Exh.C.1 by producing authentic documentary confidence inspiring evidence.
Although the learned counsel for the defendant/objector cross-examined the learned Local Commissioner C.W.1, yet nothing could be achieved out of lengthy cross-examination from where inference could be drawn contrary to the report of the Local Commissioner Exh.C.1. The learned counsel is an eminent, experienced, and leading lawyer of local bar, who has prepared his exhaustive report on. The basis of the evidence and material provided by the objectors/defendant to produce his own evidence in order to rebut the contents and conclusions of the report of the Local Commissioner; but nothing was produced by the defendant/objector in support of the objections giving rise to the framing of the issue under discussion. I do not find any flaw or lacuna in the report of the Local Commissioner Exh.C.1; therefore, the same is hereby confirmed, in toto by rejecting the objections raised by the defendant/objector. Accordingly the issue is answered in negative."
6. The aforesaid operative part in para. No,7 is not in consonance with para. No,6 of the impugned judgment and decree. This fact brings the case in the area that the learned trial Court did not apply his mind and appreciated evidence on record in its true perspective, therefore, the same is not maintainable in the B eyes of law, as per law laid down by Supreme Court. In Mollah Ejahar Ali v.
Government of East Pakistan and others PLD 1970 SC 173. The judgment of the trial Court is not in accordance with the dictum laid down by the Honourable Supreme Court in Messrs Friend Engineering Corporation, The Mall, Lahore v. Government of Punjab and 4 others 1991 SCM R 2324.
The relevant observation is reproduced hereunder:-- "It is to be remembered that liability to render accounts is the foundation for maintainability of a suit for rendition of accounts. Such a liability exists when there is fiduciary relationship between the parties as in the case of parties of a firm, guardian, and ward, principal and agent, trustee and beneficiary of the trust. These instances are only enumerative and under Order XX, rule 16, C.P.C., the Court is empowered to, pass a preliminary decree where it feels necessary that to ascertain the amount due to one party from the other side, the accounts should be taken. But, in the instant case, the relationship between the parties is undoubtedly contractual. In such a case, the respondents are not under any obligation to render accounts to the appellant. The work done, the material supplied to the department and the payments received from them by the appellant were within his knowledge. It was, therefore, for him to have ascertained the amount due to him and filed a money suit for recovery thereof."
7.. In view of what has been discussed above we upheld the preliminary decree but the final decree to the extent for determination of the amount is not proper, as the report of the Local Commissioner is sketchy, therefore, impugned judgment of the trial Court is set aside. The trial Court is directed to appoint a Local Commission in terms of judgment and decree dated 14-3-1988 within 15 days after receiving the order. The trial Court is further directed to prescribe a period to the Local Commissioner to submit report before the trial Court within one month. After receiving the report the appellant/respondent are directed to file objections qua the report of the Local Commission within 15 days. Thereafter, the trial Court shall decide the objection if any filed by any of the parties within two months. Parties are directed to appear before the trial Court on 2774-2002.