Shortly narrated the facts relevant for the disposal of instant civil petition are that Nawab Ali, proprietor, National Medicine Company, Mardan plaintiff, instituted suit in the Court of Senior Civil Judge, Peshawar against Imtiaz Khan, Chief Executive M/s. Imco Pharmaceutical Industries (Pvt.)
Limited, Peshawar, defendant for recovery of Rs, 20,575/-on account of medicines returned after termination the agreement dated 12.5.1994. It was averred in the plaint that plaintiff used to deal in medicine business and in this respect, an agreement was executed between him and the defendant on 12.5.1994. Subsequently the agreement was terminated. The defendant promised to pay the price of the returned medicines but he did not honour his commitment which led the plaintiff to file suit.
2. The suit was resisted on various grounds legal as well as factual. The claim of the plaintiff was denied and an amount of Rs, 16,685/- was stated to have been paid to him. The pleadings of the parties gave rise to the framing of following issues:--
1. Whether the plaintiff has got a cause of action?
2. Whether the suit of the plaintiff is mala fide?
3. Whether the suit is within time?
4. Whether the suit in its present from is bad and liable to be dismissed.
5. Whether the plaintiff has filed the suit with the intention to damage the reputation and good will of the defendant business?
6. Whether the defendant has got the right of receiving damages and heavy cost from the plaintiff on dismissal of the suit?
7. Whether the plaintiff has violated the provision of the agreement dated 12.5.1994, if so, its effect?
8. Whether the parties have cleared the accounts on 6.6.1995 and the plaintiff received an amount of Rs, 16,865/- and no amount is outstanding upon the company?
9. Whether the plaintiff has wind-up his duties according to the agreement dated 12.5.1994 without prior notice to the Company?
10. Whether the suit is liable to be dismissed without any further proceedings, being against law and Sharia as such this Court has no jurisdiction to entertain the same?
11. Whether the suit is liable to be rejected U/O 7 Rule 11 C.P.C. for non-affixation of Court fee and lessor valuation?
12. Whether the plaintiff is entitled to the decree as prayed for?
13.Relief?
3. The plaintiff in order to prove his claim appeared as PW.1 and produced Farman Ali and Noor Ahmad Shah as PW.2 and PW.3 respectively. In rebuttal, solitary statement of defendant was recorded as DW.1. Upon consideration of the material on record, learned Civil Judge, Peshawar, seized of the matter, dismissed the suit vide judgment and decree dated 30.4.2004, which was maintained in appeal by learned Additional District Judge, Peshawar vide his judgment dated 16,10.2004. Hence the instant revision petition.
4. M. Saleem Khan Toni, Advocate for the petitioner bitterly criticized the judgments and decrees of the Courts below and attempted to argue that sufficient material was available on the file to substantiate the claim of the plaintiff which has been excluded out of consideration and kept aside without any justifiable reason which has resulted in manifest injustice. The learned counsel reiterated that the impugned decisions are outcome of mis-reading and non-reading of evidence and cannot be allowed to remain intact. In this regard he placed reliance on Muhammad Sain Appellant vs. Muhammad Din Respondent (1996 SCM R 1918).
5. Mian Fazle Amin, Advocate for the respondent, on the other hand, contended that both the Courts below properly appraised the evidence on record and their judgments are not tainted with any illegality/irregularities thus those are not open to interference in revisional jurisdiction. The learned counsel also submitted that the statement of respondent has remained unchallenged and thus the same was considered sufficient to dislodge the claim of the petitioner. To support the plea reliance was placed on Islamuddin and others vs. Ghulam Muhammad and others (PLD 2004 Supreme Court 633).
6. I have examined both the judgments passed by the Courts below and find that the same are unexceptionable, legal, apt to the facts and circumstances of the case and do not call for any interference by this Court. It is settled law that the findings on questions of fact or law recorded by the Court of competent jurisdiction cannot be interfered in revisional jurisdiction unless those findings suffer from jurisdictional defect, illegality or material irregularities. The judgments impugned in all respect, are not arbitrary or fanciful and fulfill all the requirements of doing justice on the basis of cannons known in this behalf. The learned counsel has not been able to point out any mis-reading or non-reading of evidence on the part of the forums below. It may be recalled here that Accountant of the respondent company stated to have issued receipt in favour of the petitioner, has not been examined. So is the case with Khoban Shah. It has been rightly contended on behalf of the respondent that best available evidence has been withheld by the petitioner without any reason. It needs no reiteration that withholding of best available evidence is not desirable and an adverse presumption is drawn against the party withholding such evidence. It has been forcefully contended-on behalf of the petitioner that the receipt issued by the Accountant of the respondent company to the petitioner undertaking return of the price of the medicines, stands fully proved and the Courts below were not justified to take a contrary view and exclude the same out of consideration. The submission of the learned counsel is without merit. The receipt has not been proved and it is of no help to the petitioner as rightly held by the Courts below.
In view of what has gone above, it follows that the claim of the petitioner has not been satisfactorily proved and both the Courts below appreciated the material on record in its true perspective. The concurrent findings of fact recorded by the Courts below are unexceptionable and hardly call for interference of this Court in its revisional jurisdiction. The revision petition is devoid of force same is dismissed in limine.