' SYED JAMSHED ALI, J.---This judgment will dispose of R.F.A. No.7 of 1993, appeal filed by the defendants Nos. No.1 to 3 the suit and cross objections registered as R.F.A. No.89 of 1993 filed by the plaintiff-respondent. The relevant facts are noted hereunder.
2. On 12-7-1990 Masood Ahmadrespondent filed a suit against the three appellants in R.F.A. No.7 and Muhammad Arshad, respondent No.2 for partition of Property No. P.212, Jinnah Colony, Faisalabad i.e. The Hospital known as AlRehman, Hospital and for rendition of accounts from 1-1- 1987 till the disposal of the suit with mesne profits at the rate of Rs.10,000 per month for its use and occupation by the defendants with the interest at the rate of 13% per annum from 1-8-1987.
Perpetual injunction was also claimed seeking to restrain defendants in the suit from alienating the Hospital building and equipment. In the alternative he claimed return of an amount of 30,000 U.S. Dollars and Rs.6,50,000 by the defendants. The case set up in the plaint was that the defendants had started construction of Hospital on Property No. P-212, Jinnah Colony, Faisalabad in December 1984. The plot was owned by appellants Nos.1 and 2, the cost of which was assessed as Rs.10,000 per Marla, while the total cost of the project was assessed at Rs.6,00,000. The defendants however, abandoned construction of the Hospital in September, 1986 due to resources constraint, the plaintiff who had settled in Canada came back to Pakistan in 1985, Muhammad Arshad respondent No.2 (defendant No.4 in the suit) and two others, introduced the plaintiff to the appellants. They proposed to the plaintiff that if he participated in the project he would have 50% share in the building and equipment of the Hospital and the plaintiff will be entitled to entire income from the x- ray plant after deducting the expenses. It was averred that an amount of 3000 US Dollars was paid through Cheque, another amount of R.1,00,000 was also paid through Cheque, while an amount of Rs.1,00,000 was paid in cash on 23-7-1987 to the appellants and two payments of Rs.1,25,000 each in. Cash were made by him for the x-ray plant directly to the supplier. It was further averred that the Hospital was inaugurated in last week of December, 1986. The plaintiff pressed for execution of a partnership deed but the appellants avoided it for fear of the Income-Tax Department. It was further averred that on 22-8-1987 an amount of Rs.18,000 was paid to the plaintiff as income from the X-Ray Plant for May, June and July, 1987. On the basis of these facts, it was averred that the petitioner was entitled to 50% income of the Hospital and this was the basis to claim partition and rendition of accounts. In the alternative, recovery of the amount paid to the defendants from time to time, the details of which were given in the plaint, was prayed for.
3. The appellants contested the suit. It was asserted that appellants Nos.1 and 2 were the exclusive owners of the said Hospital, there was no partnership of the appellants and the plaintiff- respondent, the suit for recovery was otherwise barred by limitation, plea of misjoinder, locus standi and estopped were also raised. In para.6, receipt of 30,000 US Dollars and Rs.1,00,000 was admitted. Muhammad Arshad-defendant, respondent No.2 filed a separate written statement and supported the plaintiff. On the pleadings of the parties the following issues were framed:-- ' ISSUES.
(1) Whether the plaintiff is entitled to get decree for partition of the disputed property being owner of 1/2 share? OPP ' Whether the plaintiff is entitled to get mesne profits as prayed for? OPP ' Whether the X-Ray Plant installed in the disputed premises is exclusively owned by the plaintiff and he is entitled to get mesne profit of the same? If so, to what extent and for what period? OPP ' Whether the plaintiff is entitled to get the alternative relief as prayed for? OPP ' Whether the suit is not maintainable in its present form? OPD Nos.1 to 3
(6) Whether the suit is time-barred? OPD Nos.1 to 3
(7) Whether the suit is bad for misjoinder of causes of action? OPD Nos.1 to 3
(8) Whether the suit is bad for misjoinder of parties? OPD Nos. 1 to 3.
(9) Whether the plaintiff is estopped to bring the suit by his words and conduct? OPD Nos. 1 to 3.
(10) Whether the plaintiff has locus standi nor cause of action to bring the suit? OPD Nos. 1 to 3.
(11) Whether defendants Nos. 1 to 3 are entitled to get special costs under section 35-A of C.P.C. If so, to what extent? OPD Nos. 1 to 3.
(12) Whether the defendant No.4 is entitled to get Rs.1,80,000 as prayed for? OPD No.4.
(13) Relief.
4. On Issue No.1 the learned trial Court found that neither any partnership was established nor it was proved that the plaintiff was entitled to 1/2 share in the property in dispute. Issues Nos. 2 and 3 were also answered against the plaintiff. However, while answering issue No.4 the learned trial Court found that apart from 30,000 US Dollars, the plaintiff was also entitled to recover an amount of Rs.6,50,000 which was paid by the plaintiff to the appellants. Issues No.5 to 11 were answered in the negative while Issue No.12 was decided against defendant No.4 in the suit, namely Muhammad Arshad, respondent No.2 in R.F.A. No.7 of 1993 Accordingly the suit of the plaintiff was' decree for recovery of 30,000 US Dollars or equivalent Pak. Rupees at the time of transaction and Rs.6,50,000 with interest at the rate of 13% per annum from 23rd July, 1987 till realization.
5. In R.F.A. No.7 of 1993 the defendants have challenged the judgment and decree while R.F.A. No.89 of 1993 is by the plaintiff in the suit. He is aggrieved of dismissal of his suit for partition and rendition of accounts. The learned counsel for the appellant in R.F.A. No.7 of 1993 contended that whatever amount was received by the appellants had been re-paid in cash in presence of the witnesses and the fate of this case depends on the question whether the oral evidence produced by the appellants establishing re-payment of the amount to the plaintiff was rightly disbelieved by the learned trial Court. Defending the cross objections he stated that in the absence of any title as co- owner in the said property the suit for partition was not maintainable and even the partnership was not established by any reliable evidence. He referred to sections 4, 14, 18 and 44 of the Partnership Act. He contended that the learned trail Court could not have granted interest as it is against the injunctions of Qur'an and Sunnah and in any case the rate applied was excessive.
6. Mr. Waheed Akhtar, Advocate appears for the appellant in R.F.A. No.89. He frankly stated that on the evidence produced in the case he will not be able to press his cross-objections for either seeking partition of the property or rendition of accounts and will be content by defending the impugned judgment and decree granting the alternate prayer of the plaintiff.
7. We have considered the submissions made by the learned counsel for the parties and have examined the entire record with their assistance. To summarize the controversy, the case of the plaintiffs-respondents was that he had paid US Dollars 30,000 to the appellants and a cash sum of Rs.4 lacs out of which Rs.1 lac was paid through cheque. He claimed that a sum of Rs.2,50,000 was paid by him to the supplier of the X-Ray plant directly. Thus, apart from 30,000 U.S. Dollars the appellant claimed recovery of an amount of Rs.6,50,000. Out of the aforesaid payments, the appellants accepted having received 30,000 US Dollars as well as an amount of Rs.1 lac through Cheque. They are, however, disputing the cash payment Rs.3 lac to them and expenditure of Rs.2,50,000 by the plaintiff-respondent on the purchase of X-ray Plant. The learned trial Court has believed the evidence produced by the plaintiff-respondent while evidence produced by defendants-appellants that they had returned the entire money to the plaintiff-respondent has been disbelieved.
8. It may also be noted that the disputed payments by the plaintiff to the appellants cover an amount of Rs.5,50,000. The plaintiff appeared in the witness-box as P.W.7 and examined six other ,witnesses, Nussrat Ullah, Branch Manager, of U.B.L. Appeared as P.W.1 and stated that two cheques valuing Rs.1,25,000 each were drawn by the plaintiff which were paid to the plaintiff. The two cheques were produced on record as Exh.P.W.1/1 and Ex. P.W.1/2. This was the amount, (Rs.2,50,000) the plaintiff claimed to have paid to the supplier of the X-ray plant. There is an explanation on the record for making cash payment for the X-Ray plant, i.e. That the supplier of the X-Ray had refused to accept the cheque. P.W.2, an official of the BCCI, produced certified copy of the cheque Exh.P.2/1 for an amount of 30,000 U.S. Dollars which amount was transferred to the account of Mazhar Jamil- appellant No.
1. This amount is not disputed. P.W.3-Muhammad Akram, brother-in-law of the plaintiff, stated that 'towards the end of the year, 1986 an amount of Rs.1,25,000 was paid in cash to Kh. Iqbal Koki, of Toshiba for the X-ray plant. Mustafa Kamal Pasha of Emirates Bank appeared as P.W.4 and produced cheque in the amount of Rs.1 lac as P.W.4/1. He also stated that on 23-8-1987 another cheque in the amount of Rs.4 lac was got encashed by the plaintiff. Muhammad Arshad was examined as P.W.5, who stated that he along with Arshad Saleemi and the plaintiff met the appellants and it was agreed that the plaintiff will contribute an amount of Rs.9,50,000 and in lieu thereof he will have 50% share. He testified to the payments of Rs.4 lac and an amount of 30,000 US Dollars to the appellants and two piyments of Rs.1,25,000 each for the X-Ray plant to the Manager of the firm namely Muhammad Iqbal. Naveed Iqbal was examined as P.W.6. He asserted that the appellant and the respondents had partnership in the Hospital, the plaintiff had 50% share and half share of plaintiffrespoildents was Rs.9,50,000 out of which plaintiff paid 30,000 US Dollars and one lac both through Cheques while an amount of Rs.3 lac was also paid in cash. According to him the X-ray Plant was funded by the plaintiff at the total cost of Rs.2,50,000. He also stated that in December, 1987, the appellants had ,paid Rs.18,000 to the plaintiff in the form of cheque (Rs.12,000) and cash (Rs.6,000) out of the income of the hospital. The plaintiff appeared as his own witness and supported his case.
9. In rebuttal, Muhammad Arshad Saleemi, pro forma defendant, in the suit, who is supporting the plaintiff, appeared as D.W.1. According to him he was also a partner with the appellants and was entitled to Rs.5,000 per month and 'that he had deposited an amount of Rs.2 lac with the appellant which was not returned to him. The appellants examined five witnesses and Mazhar Jamil, appellant No.1 appeared in the witness-box as D.W.7. D.W.2 stated that the building of the Hospital was constructed by Mazhar Jamil and Azhar Jamil appellants, X-ray Machine belonged to the Hospital and that there was no other partner. Haji Irshad was examined D.W.3. He has been an employee of the hospital as a Technician. According to him, the X-ray plant was owned by the hospital and the land of the hospital was owned by the appellants. Muhammad Shafi was examined, as D.W.4. According to him, Mazhar Jamil, Azhar Jamil and the plaintiff-respondent came to his house, the plaintiff-respondent admitted that an amount of Rs.2,72,000 had already received by him leaving a balance of Rs.3,40,000 which was given by him to Mazhar Jamil which was paid to the plaintiff. According to him it was a "Qarze-Hasna" required by Mazhar Jameel for his younger brother in Kuwait and that there was no partnership between the parties. Muhammad Azhar was examined as D.W.S. He also stated that an amount of Rs.3,40,000 was paid to the plaintiff by Muhammad Shafi (D.W.4). Bashir Ahmed was examined as D.W.6. He claimed to have completed the wood work in the Hospital: According to him he had been dealing only with Mazhar Jamil and Azhar Jamil. Mazhar Jamil, appeared as D.W.7 and claimed that the Hospital was owned by them, there was no oral or written partnership with the plaintiff respondent and the X-ray plant was purchased by them at a cost of Rs.3 lac. He admitted receipt of 30,000 US Dollars which according to him amounted to Rs.5,12,000 in Pak rupee Rs.1 lac as "Qarz-e-Hasna" and further stated that he had paid some amount through cheque and the amount of Rs.3,40,000 was paid by getting it from Muhammad Shafi, his brother-in-law.
10. The disputed payment of Rs.3 lac and the cost of the X-ray plant for Rs.2,50,000 has been supported by P.W.4, P.W.5 and P.W.6 apart from the plaintiff. The case of the appellants has been that a total amount of Rs.6 lac was borrowed from the plaintiff out of which Rs.2,70,000 had already been paid and for repayment of Rs.3,40,000 reliance is being placed on the testimony of D.W.4 and D.W.S. In the written statement it was pleaded by the appellants that Mazhar Jamil had repaid the entire amount to plaintiff and respondent No.2 through seven cheques. None was, however, produced on the record. It may also be noted that it was not plea taken in the written statement that an amount of Rs.3,40,000 was outstanding which was paid in cash to the appellant as claimed at the trail. As far as the amount of Rs.2,50,000 for the X-ray plant is concerned, it was averred in the written statement that the price of the X-ray plant was paid by the appellants. Undisputedly, the X-ray plant was there in the Hospital and therefore, the question was as to who had funded it.
Although none of the parties produced the receipt for payment of X-ray Plant but the fact remains that the appellants were claiming payment for the X-ray plant installed in their Hospital and, therefore, it was for them to have produced the receipt. As far as the payment of Rs.3,40,000 by the appellants to the plaintiff-respondent as claimed by D.Ws.4 and 5 is concerned, the learned trial Court has rightly disbelieved their statements. It is in the evidence of D.W.4 that his total business assets valued at Rs.2 lac. It is not believable that a person with this financial potential will have ready cash of Rs.3,40,000 available at his house to be paid to the plaintiff. It may also be noted that D.W.4 did not refer to the presence of D.W.5 at the time of making payment of Rs.3,40,000 to the plaintiff-respondent.
11. This is, however, not the end of the matter because the respondent-plaintiff had to prove payment of the disputed amount of Rs.5,50,000 to the appellants. Although P.Ws.5 and 6 testified to the payment of the said amount by the plaintiff-respondent to the appellants yet the learned trial Court omitted from consideration that according to P.W.5, the plaintiff had to contribute a sum of Rs.9,50,000 while according to P.W.6 1/2 share of the plaintiff-respondent in the alleged partnership was Rs.9,50,000 while according to the case set up in plaint it was 30,000 US Dollars plus an amount of Rs.6,50,000. Mazhar Jamil, one of the appellants appeared as D.W.7. It was suggested to him that he had received Rs.9,50,000 from the plaintiff-respondent. Thus, the case of the plaintiff put to D.W.7 was that the plaintiff had paid a sum of Rs.9,50,000 to the appellants. The question is whether this was over and above the cost of the X-ray Plant. Our answer to this question is that it was inclusive of the X-ray Plant because the case of the plaintiff was that he had paid 30,000 US Dollars (Rs.5,12,000) and Rs.4 Lac, totaling to Rs.9,12,000 and with the cost of X-ray plant the amounts would be Rs.11,65,000.
' However, if the amount advanced is taken as Rs.9,50,000 and cost of X-ray plant (Rs.2,50,000) is added to the said amount, the total amount comes to Rs.12,00,000 which was not the case of the plaintiff-respondent. Thus, the plaintiff-respondent was not entitled to the decree beyond an amount of Rs.9,50,000 inclusive of the amount equivalent to 30,000 U.S. Dollars.
12. The contention of the learned counsel for the appellants that the interest could not be allowed and in any case the rate of 13% per annum was excessive has also been considered by us. The provisions relating to various statutes providing for interest were declared as repugnant to the injunction of Qur'an and Sunnah by the learned Federal Shariat Court in Dr. Mahmood-ur-Rehman Faisal and others v. Secretary, Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan Islamabad and others (PLD 1992 FSC 1). The said judgment was appealed against before the learned Federal Shariat Appellate Bench and was upheld in Dr. M. Aslam Khaki v. Syed Muhammad Hashim and 2 others (PLD 2000 SC 225). By virtue of the appeal, the said judgment, of the learned Federal Shariat Court did not take effect as provided by Article 203-D of the Constitution. According to the judgment in the case of Dr. Muhammad Aslam Khaki, supra, the operative date from which the laws declared by the Federal Shariat Court as repugnant to injunctions of Qur'an and Sunnah was 31st March, 2000 in case of a number of statutes while it was 30th June, 2001 in case of other laws. However, the judgment impugned in this appear was rendered on 7-11-1992 and, therefore, on the date of judgment and decree passed in this case the provision of section 34 of the C.P.C., empowering the Court to grant interest was operative. Even if, it could be said that the trial Court, had no jurisdiction to grant interest, the plaintiff/respondent was entitled to compensation for the use of his money by the appellants. According to section 34 of the C.P.C. The rate of interest was left at the discretion of the Court. In accordance with. The rule laid down by the Honourable Supreme Court in Khan Iftikhar Hussain Khan of Mamdot v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550) a decree-holder was found entitled to 6% interest on the amount due in accordance with mercantile usage. No evidence as to the mercantile usage was produced on the record in this case. We noticed that section 34 of the Land Acquisition Act provided interest at the rate of 6% on the amount awarded. However, by a West Pakistan amendment the rate of interest was raised from 6 to 8%. Therefore, we are of the view that compensation at the rate of 8% per annum (without being compounded) on the decretal amount shall meet the ends of justice.
13. Accordingly R.F.A. No.7 of 1993 is partly allowed. The impugned judgment and decree are modified, the suit of the plaintiff-respondent is decreed against the appellants-defendants for a sum of Rs.9,50,000 (inclusive of the amount in Pak. Rupee equivalent to 30,000 US Dollars as on 13- 10-1986, the date of the cheque) with 8% per annum, as compensation on the amount of Rs.9,50,000 from the date of institution of the suit till realization of the entire amount due. R.F.A.
No.89 of 1993 is dismissed. No order as to costs.