KHATOON BEGUM AND 4 OTHERS vs MESSRS HYESONS COMMERCIAL AND

' This is a suit for the recovery of Rs, 5,32,004.77 filed by the deceased Shaikh Muhammad Usman Azad, whose legal heirs were brought on record after his death on 11th September, 1964. The facts leading to the filing of the above suit are that on 10th August, 1963 there was an agreement between defendant No, 1 and the deceased on the one hand as the promoters of a then proposed private limited company nameed 'Daily Anjam Ltd.' and the deceased on the other hand. The following were the main terms of the agreement Exh. P1/25. {{TABLE}}

(1) "That the promoters shall form a private limited Company with a paid up capital of Rs, 1,00,000.

(2) That the promoters shall contribute capital in the following proportions : #TBS Rs, 1,00,000 #TBE #TBS Mr. Muhammad Usman Azad. 20,000 #TBE #TBS Hyesons Commercial & Industrial Corporation Limited, and or its nominees ... Rs, 80,000 #TBE {{TABLE}} ' That the goodwill of the said business of publishing 'DAILY ANJAM' at Karachi and Peshawar with the exclusive use of name "DAILY ANJAM" as part name of the Company and the right to publish 'ANJAM' daily, weekly, fortnightly and monthly at Karachi, Peshawar and other places shall be transferred to the Promoters and later to the Company by the party of the second part for a consideration of Rs, 1,00,000 (Rupees one lakh) which shall be paid by the Company to the party of the second part.

' That the party of the second part hereby agrees to transfer all furniture, fittings and fixtures, and all the tenancy rights in the buildings, press premises, office premises, godowns at present used in connection with the business of printing and publishing Daily Anjam at Karachi and Peshawar to the Promoters if required to do so and later to the Company.

' That the party of the second part hereby agrees to sell and transfer at cost price to the promoters if required to do so and later to the Company all plant and machinery at Karachi and Peshawar including Rotary machines and other machines recently imported and not yet installed as well as chemicals, etc."

2. In pursuance of the above agreement defendant No, 1 registered a private limited company under the name and style of Daily Anjam Limited (which is defendant No, 6 in the suit). Defendants Nos. 2 to 5 and the deceased were the directors of the Company but the controlling shares and the management was entirely in the hands of defendants Nos. 2 to 5. It has been averred that defendants Nos. 1 to 5 took over the business of publishing the Daily Anjam at Karachi and Peshawar from 1st July, 1963 and as the private limited company had not been formed and arrangement for publishing and carrying on the business had not been made by the promoters the paper continued to be published from its old office and the promoters and later on defendant No, 1 used and continued to use all furniture's, fittings, fixtures and all the Press premises, office premises, godowns, etc. And are continuing to do so uptil today. It has been further averred that the defendants also used the stock of newsprints belonging to the deceased for the publication of Daily Anjam from Karachi and Peshawar and that the cost of these properties is estimated at Rs, 4,34,635.65. It has also been averred that the promoters and later the company, defendant No, 6, did not at any time require to purchase the property mentioned except for the newsprint, which they consumed and for which they agreed to pay and that the price of the same also could not be determined by consent between the deceased and the promoters and later by defendant No,

6. It has been further averred that the deceased has also paid salary of the staff amounting to Rs, 80,000 and has further spent a sum of Rs, 50,067.67 as miscellaneous expenses and the defendants are liable to pay the above amount to the deceased. It has been also averred that thus a total sum of Rs, 5,64,102.67 is due and payable by the defendants to the deceased and that the deceased several times called upon the defendants to settle and pay the above outstanding dues, but the defendants failed and neglected to do so, and consequently they were served with the legal notice dated 31st March, 1964 which ensued correspondence between the parties, out no payment was made to the deceased. On the basis of the above averments, the deceased had prayed for a decree for Rs, 5,32,004.77 with 6% interest from the date of the suit till realization and costs.

3. The defendants have filed a joint written statement, wherein it has been averred that the suit as framed is not maintainable in law inasmuch as the defendants through their Advocate's letter dated 13th April, 1964 tendered a cheque dated 15th April, 1964 for Rs, 32,018 to the deceased on the explicit condition that the same was in full and final settlement of all the claims of the said deceased against the defendants and that the deceased appropriated the said cheque and thereby accepted the condition subject to which the payment was tendered. It has further been averred that as the said payment was made in full satisfaction of all the claims of the deceased against the defendants, the said deceased/plaintiffs have no cause of action against the defendants. It has been further averred that the suit is barred by sections 21 and 56 of the Specific Relief Act. It has also been averred that the correct facts are that the defendants agreed to pay to the deceased a sum of Rs, one lac : (1) as a goodwill of the business of publishing Daily Anjam at Karachi and Peshawar with the exclusive use of the name Daily Anjam as a part name of the company and the right to publish Anjam Daily, Weekly, Fortnightly and Monthly at Karachi, Peshawar and other places, and (ii) as a price for the furniture, fittings, fixtures of all the tenancy rights in the building, Press premises, office premises, godowns which were being used in connection with the business of printing and publishing Daily Anjam at Karachi and Peshawar, which the deceased had agreed to transfer and that accordingly the said deceased did transfer and delivered possession of the said properties to the defendants. It has also been averred that the contention of the plaintiffs that the consideration of these items of properties was not fixed and was left to be determined later on, is obviously an after thought without any foundation and the same is denied by the defendants. It has further been averred that the transfer was to be in the name of the promoters in the first place if the said deceased was required to do so and that the transfer was definitely to be in the name of the company later on. It has also been averred that the above stipulation was made with the view to provide the taking over of Daily Anjam from the said deceased during the intervening period from the date of signing of the agreement and the incorporation of Daily Anjam Limited. It has further been averred that as a matter of fact all the items mentioned in clause (4) of the agreement were required by the Company and there was no question of determining their price later on and that all these items were required by the promoters of the company. It has also been averred that both K. M. Munir on behalf of Messrs Hyesons Commercial and Industrial Corporation Ltd. And the deceased got the Daily Anjam registered with the Registrar of Companies and not defendant No, 1 as alleged in the plaint. It has been denied that the cost of the property referred to in paras. 5 to 8 of the plaint is Rs, 4,34,035.05 or that the deceased has paid the salary of the staff or that he incurred the miscellaneous expenses of Rs, 50,067.67. It has further been denied that the defendants are liable to pay Rs, 5,64,102.67. It has been averred that the correct facts are that the deceased had agreed to sell all machineries as described in the Schedule annexed to the agreement of sale, in the first place in the name of the promoters if they required to do so and secondly in the name of the company later on. It has been further averred that accordingly the deceased sold and the defendants did purchase all the business of publishing Daily Anjam at Karachi and Peshawar including the machinery recently imported and not installed and the rotary machines, chemicals, etc. It has also been averred that the promoters took over all the business of publishing the Daily Anjam at Karachi and Peshawar with effect from 1st July 1963 and that Daily Anjam Limited, of which the deceased was also a director, was incorporated on 14th September 1963. It has been further averred that Daily Anjam Ltd.

Paid to the deceased a sum of Rs, one lac as consideration for the goodwill and as the price for the furniture, fixtures, fittings, tenancy rights in the buildings, Press and office premises, godowns, etc., the then used in connection with the business of the printing and publishing the Daily Anjam at Karachi and Peshawar and have by using the said properties as the purchaser of the same. It has also been averred that the defendants have paid fat all these items and have also paid the salary to the staff and incurred miscellaneous expenses. It has also been averred that the defendants maintain regular books of account and have sent a statement of account of the deceased along with their letter dated 18th April 1964. It has further been averred that the defendants also sent a cheque for Rs, 32,018.90 in favour of the deceased in full and final settlement of all his claims and that the deceased accepted the cheque knowing fully well that the cheque was tendered on the specific condition that it was in full and final settlement of all his claims. In view of the above averments the defendants have denied their liability to pay any amount to the plaintiffs.

3. (a) With the consent of the learned counsel for the parties on 19th April, 1965 as many as 10 issues were adopted and an additional issue was framed vide order dated 24th March, 1967.

However, before the trial of the suit on 9th August, 1967 with the consent of the learned counsel for the parties Mr. Q. M. Raymond was appointed as a Commissioner to go into the accounts relating to the claims enumerated in the aforesaid order and to submit his report. The break-up of the plaintiffs' claim in the order was as follows :- {{TABLE}} Newsprints consumed account Rs, 2,34,035 Use of Office premises at Karachi 1,20,000 Use of Office premises at Peshawar 50,000 Salary between July-August, 1963 at Karachi 44,000 Salary at Peshawar between July-November 1963 36,000 Misc. Expenses at Karachi 32,000 Misc. Expenses at Peshawar 3,000

(i) For Printing at Peshawar Fittings, fixtures and furniture taken from Karachi 15,000 Office 20,000 For Peshawar Office 10,000 Total Rs, 5,64,122 {{TABLE}}

(b) The plaintiffs had examined 8 witnesses before the Commissioner, whereas the defendants had examined 2 witnesses in addition to the submitting of the documentary evidence, which inter alia included certain account books for the period in dispute. The learned Commissioner after hearing the' parties submitted his report, dated-30th June .1972, whereby he came to the conclusion that the plaintiffs were not entitled to any amount. To the above report, the plaintiffs have filed objections. Before the objections were taken up, for hearing, upon the plaintiffs' application this Court vide an order dated 18th April, 1978 permitted the plaintiffs to examine two additional witnesses subject to the right of the defendants to examine any witness in rebuttal. In pursuance of the above order, S. M. Fasih (P. 9) and Abdul Aziz (P. 10) were examined on 30th October, 1978. However, Mr. A. A. Zari, the learned counsel for the defendants, stated on the above date that he did not wish to lead any oral evidence. After that the case was fixed for arguments on the objections to the Commissioner's report as well as on the merits of the case. When the case came up for hearing before me for arguments with the consent of the learned counsel for the parties, I have resisted the issues and have framed the following one issue "What amount if any, is due and payable to the plaintiffs ?"

(c) Mr. Afzal Nabi, learned counsel for the parties has attacked the Commissioner's report on the following grounds :-

(i) That the learned Commissioner has relied upon the account books filed by the defendants which were not genuine.

(ii) That the defendants had not produced the entire record, and, therefore, an adverse inference should have been drain against them.

(iii) That even otherwise, the account books could not have been relied upon as there were numerous wrong entries in the account books.

4. (a) Before dealing with the above contentions raised by the learned counsel for the plaintiffs in respect of the Commissioner's report, it may he pertinent to ascertain the scope of the Commissioner's power under the Court Reference. In this regard it will be advantageous to refer to the Commissioner's reference dated 26th September, 1969 made to this Court for soliciting the order thereon, and the objections to the above reference filed by the defendants. Through the above reference it was stated that after the closing of the cross-examination of the defendants' second witness, the Commissioner desired to put certain questions to him and enquired from the learned counsel for the parties as to whether they had any objection to the Commissioner putting questions to the said witness. In reply thereof, Mr. Afzal Nabi stated that he had no objection, but Mr. Zari stated that the function of the Commissioner was very limited and that was to record the evidence produced on the 10 items mentioned in the order dated 9th August, 1967 and to forward his evidence with a report as to the actual proceeding which had taken place before him, but without recording any finding or expressing any view. Because of the above objection of the learned counsel for the defendants, the Commissioner, sought order of this Court through the aforesaid reference. The defendants filed lengthy objections to the above reference, in which inter alia it was averred that the Commissioner was only to record the evidence and to forward the same to the Court with his report about the number and names of the witnesses examined by him and about the actual proceeding before him and that the Commissioner had no power to give his finding on the merits of the claim of the plaintiffs and that it was the function of the Court which could not be delegated to the Commissioner. Reliance was also placed by the learned counsel for the defendants on the cases 58 I A 173 ; AIR. _1925 Sind 265.; AIR 1936 Lah. 458 ; AIR 1931 P C 136 ; AIR 1916 P C 250 ; AIR 1960 Pb. 430 and AIR 1942 Bom. 266 in support of the above contention. The above reference and the objections thereto, were taken up on 8th October, 1969 by Dorab Patel, J.

(as his Lordship then was) and the following clarification was made :- ' Turning now to the other questions raised by the Commissioner, Mr. Zari has cited authority to show that the Commissioner cannot give a finding on the evidence he is permitted to record. No authority is required for a proposition so obvious.. Mr. Raymond admitted that his choice of word "findings" was not very apt. What he meant was whether he could make any comment on the evidence recorded by him. As the evidence is lengthy and has he has been asked to give a report, I see no objection to his making any comments on the evidence. Mr. Zari's apprehensions that this might prejudice his case are not justified, because the evidence will be assessed by the Court and not by the Commissioner. The other request of the Commissioner is that he should be permitted to put questions to the witnesses. If this is allowed, it would enable the production of evidence which one side or the other failed to adduce. I do not think that this is fair nor was Mr. Afzal Nabi able to show (how) the Commissioner was competent to put questions on his own. Accordingly this request is disallowed. The reference is disposed of accordingly."

(b) From the above order it is clear that the authority of the Commissioner was more or less confined to the recording of the evidence and to make comments upon the evidence but he was not authorised to give a finding about the genuineness of the account books or about the merits of the plaintiffs' claim. Before me Mr. Zari has urged that the Commissioner being an expert in accounts his report should not be lightly interfered with. Reliance was placed on the case of Chandan Mull Indra Kumar and others v. Chiman Lal Girdhar Das Parekh and another (1) and the case of Uttam Kumardas v. Ajgar Ali Meah (2). In the above P. C. Case it was held that it is not safe for the Court to act as an expert and to overrule the elaborate report of a Commissioner, whose integrity and carefulness are unquestioned. Whereas in the Dacca case it was held that the Court must consider reasons given in report before rejecting it. But when Mr. Zari's attention was invited to his aforesaid objection to the Commissioner's reference and to the aforesaid order passed by Dorab Patel, J., he candidly submitted that he adheres to his above stand taken in his objections and that the Commissioner's report does not contain any finding.

5. (a) I have to therefore, examine the evidence recorded by the Commissioner, the documents produced before him and also the evidence recorded by this Court. A reference can also be made to the comments made by the Commissioner. I, therefore, intend to deal with the plaintiffs' claim. {{TABLE}} Rs,

(b) (i) Newsprint consumed account ..................................... 2,34,035

(i) AIR 1940PC3 (2) P D 1955 Dacca 15 The break-up of the above item given by the plaintiffs in Annexure `A' dated 5th September, 1967 filed by the plaintiffs before the Commissioner was as follows :- Rs, (1)

(2) #TBS

(3) 1,01,108.43

(4) #TBE (5)

(6) #TBS

(7) 87,851.62

(8) 1,32,926.62

(9) #TBE (10)

(11) #TBS

(12) 45,075

(13) #TBE

(14) Newsprint A/c No, 1 as per Daily Anjam Ltd.

Ledger ending 24th October, 1963...........

(15) Newsprint A/c No, 2 as per Daily Anjam Ltd.

Ledger ending 24th October, 1963........... {{TABLE}}

(16) Balance of newsprint at Karachi which was not entered in books. It was agreed mutually to be paid separately by the Managing Director of Messrs Hyesons Limited with the deceased after allowing wastage of newsprint unfit for consumption. The full amount of reams 8,881, sheets 209 for Rs, 1,11,012.15 was shown in the income-tax return ending on 30th June, 1963.

2,34,035.05 ' A perusal of the above-quoted break-up indicates that whereas the newsprint valuing Rs, 1,32,926.62 was reflected in the account books but the newsprint, worth Rs, 1,01.108.43 was not reflected in the account books, as it was allegedly outside the account books. P. W. 1 Abdul Waheed Qureshi at lines 669 to 676 at page 18 of the file of the depositions has admitted as follows :- "The deceased was given credit for newsprint of the value of Rs, 1,32,000 in October, 1963. This is the total value of newsprint of the current account register given to the office of daily Anjam for consumption. The sum of Rs, 1,32,000 covers newsprint given to the office of daily Anjam for consumption from 1st July, 1963 till 31st October, 1963."

' P. W. 3 Syed Muhammad Idris Ahmad Shah Jilani at line No, 12i9 to 1293 at page 81 of the depositions' file has also admitted the aforesaid fact in the following Words :- "In July 1963, the deceased Usman Azad told me to credit his account in the value of the newsprint in stock, and I credited his account accordingly. From 1st July, 1963 till 24th October, 1963 I have credited the account of the deceased Usman Azad in the Karachi books with Rs, 1.32,000 being the value of the newsprint. This amount of Rs, 1,32,000 comprises of Rs, 45,075 shown in Exh. P-3/3 and Rs, 87,851.62 shown in Exh. P-3/3 and Rs, 87,851.62 in Exh. P-3/9. All the entries appearing in Exh. P- 3/3 and Exh. P-3/9 were correct and are in my handwriting. I had informed the deceased about having credited his account with Rs, 1,32.000 and he replied it was alright. I am shown the statement of accounts filed before the Commissioner and I state that the entries of Rs, 45,057 and Rs, 87,851.62 shown at items Nos. 1 and 2 in this statement are the same amounts as shown in Exhs.

P-3/3 and P-3/9 respectively. In spite of the credit given in the books of account of Rs, 1,32,000 to the deceased I stated that the plaintiffs are entitled to payment of this amount as it has not been paid."

' It may be noticed that P. W. 1, who was the General Manager and P. W. 3, who was the accountant of the deceased. Both have admitted in their above-quoted statements before the Commissioner that a credit entry for the above sum of Rs, 1,32;000 was given in the account books. The account books for the relevant period, i. e. The cash book Exh. P-1/4, and ledger Exh. P-1/5, were written by P.

W.

3. The defendants have filed two statements of the deceased's account pertaining to Karachi and Peshawar offices, Exhs. D-2/3 and D 2/2 respectively, which also reflect the credit entries in respect of the newsprint. In Exh. D-2/3 the following credit entries are shown on account of newsprint. {{TABLE}} Total : Rs, 4,500.00 795.00 61,597.00 7,701.00 1,160.00 7,393.50 10,000.00 96,326.62(?) {{TABLE}} ' Whereas in Exh. D-2/2 a credit entry of Rs, 33,320 has been made in respect of newsprint. The total of the above entries comes to about Rs, 1,30,000. The above total figure is very close to the amount of the claim made by the plaintiffs. The reason of the above discrepancy we find in the statement of D. W. 2 Fayaz who at L. No, 939 at P. 167 has deposed as follows :- "According to me the rate of Rs, 15 per ream on which Rs, 36,600 has been credited to the deceased Usman has been inflated. Since this rate of Rs, 15 was inflated, I reversed the entry of Rs, 36,600 and gave the deceased credit at a reduced rate. I have given the deceased credit of Rs, 33,220 instead of Rs, 36,600. The entry of Rs, 33,220 has been shown in the Journal Exh. P. 3/16 (page 19) and has already been marked as Exh. 2/8."

(a) I will take up later on the question as to whether the deceased had received the payment in respect of the newsprint when I will be dealing with Exh. D-2/3, wherein certain debits entries have been shown against the deceased. For the time being it will suffice to say that the price of the newsprint, for which the deceased was entitled to a credit has been taken care of in the aforesaid account books and in Exhs. D-2/3 and D-2/2 except that a sum of Rs, 3,380 has been reduced unilaterally by the defendants for the aforesaid reason given by D. W. 2 Fayaz.

(b) It may again be observed that Exh. P-1/4,, cash book and Exh. P-1/5, ledger for the period commencing from 1st July, 1963 to 24th October, 1963 were written and maintained by P. W. 3 Jilani.

It was urged by Mr. Afzal Nabi, learned counsel for the plaintiffs, that D. W. 3 Fayaz, (the accountant employed by the new management), who allegedly maintained accounts after the period commencing from. 25th October, 1963 has deposed before the Commissioner at Lines Nos. 1071 to 1081 that the cash book (Exh. P-1/4) and the ledger (Exh. P-1/5) are not the original books and have been rewritten by witness Jilani and that the original books are with witness Jilani and, therefore, no reliance can be placed on the above account books. Whereas Mr. Zari has urged that the above statement of D. W. 2 Fayaz appears to be plausible as under the sale agreement in question, the deceased was liable to settle all the liabilities and was entitled to receive the recoveries in respect of the period expiring on 30th June 1963 and, therefore, it was necessary for the deceased to have one set of the account books for the period commencing from 1st July, 1963 till 24th October, 1963.

He further submits that the above accounts books do not contain any seal of the Audit Bureaus of Circulation(A B C) and, therefore, they could be the exact copies of the original account books. In my view the above controversy is not material inasmuch as according to P. W. Exhs. P-1/4 and P-1/5 are correct and they were written by him and, therefore, reliance can be placed on the above two account books.

(c) Reverting to the plaintiffs' claim for the sum of Rs, 1,01,108.43 being the alleged price of the newsprint not reflected in the account books, it will suffice to observe that it is an admitted position that there is no entry in respect of the above alleged newsprint in the account books maintained by P. W.

3. The plaintiffs have relied upon the oral evidence of P. Ws. 1 and 3 and also on the fact that in the income tax return for the period ending on 30th June, 1963 the deceased had shown newsprint worth of Rs, 1,11,012.50 in his possession. In my view, the above oral evidence and the fact that the deceased had disclosed in his income-tax return the newsprint of the value of Rs, 1,11,012.50 do not prove the fact that the defendants were given the newsprint of the above value in addition to the newsprint reflected in the account books or in the stock register Exh. P-1/3. It is also an admitted position that P. Ws. I and 3 were removed from the service by the new management and, therefore, they were not on good terms with the new management. In my view in the absence of any documentary evidence to prove that in fact the defendants were given the .Delivery of the additional newsprint not reflected in any of the documents the plaintiffs' claim in respect thereof cannot be accepted. I am, therefore, of the view that the plaintiffs have failed to establish their claim in respect of the above amount of Rs, 1,01,108.43. {{TABLE}} Rs,

6. (a) (ii) Use of Office premises at Karachi... 1,20,000 and

(Ili) Use of Office premises at Peshawar... 50,000 {{TABLE}}

(a) In support of the above claim the plaintiffs have relied upon the evidence of P. Ws. 1 and 2. P. W.

1 has deposed that the head office of Daily Anjam was located at Safe Deposit Chambers on McLeod Road, Karachi and that the premises were leased in the name of Daily Anjam and was allotted by the Karachi Administration. He has further deposed that the above premises to his knowledge continued to be in the name of Daily Anjam till 27th January, 1964 and that to his knowledge the late Usman , Azad had at no time transferred the tenancy of the premises deposed to the name of Daily Anjam Ltd. He has also deposed that as far as he knew on one occasion the late Usman Azad was offered Rs, 1,75,000 by some bank for the tenancy rights or goodwill of the premises of Daily Anjam in the security safe deposit. Whereas P. W. 3 has deposed at line No,, 1210 that in November 1963 the deceased Usman Azad asked him to credit his account with Rs, 1,20,000 for the use of the office premises at Karachi of Daily Anjam Ltd. He has also deposed at line No, 1234 that in November 1963 he received voucher from the deceased to credit Rs, 50,000 to his account for the use of Peshawar office of Daily Anjam Ltd.

(b) It has been urged by the learned counsel for the plaintiffs that the account books containing the above credit entries in respect of the office premises have not been produced by the defendants. It has been further urged that Exh. P-1/I ledger and P-3/1 cash book for the period commencing from 25th October, 1963 to 31st December, 1963 are not genuine account books as the account books for the aforesaid period were also written by P. W. 3 Jilani and not by P. W. 2 Fayaz.

Whereas Mr. Zari has urged that Exhs. P-1/I and P-3/1 are the genuine books of accounts and that they were written and maintained by D. W. 2 Fayaz, who was employed by the new management as the Accountant for the newspaper in question. It is an admitted position that Exhs. P-1/4 cash book and P-1/5 ledger, which were written by P. W. 3 Jilani were closed on 24th October, 1963 and, therefore, the new accounts books were to be opened from 25th October, 1963. The controversy in this regard is, as to whether the same were written by P. W. 3 or D. W.

2. Mr. Afzal Nabi in support of his contention that Exhs. P-I/1 and P-3/I are not genuine has relied upon the statement of P. W. 1 at line No, 272, wherein he has deposed that he sees the ledger of Daily Anjam Karachi commencing 25th October, 1963 and states that this ledger was not maintained, when he was General Manager of Daily Anjam Karachi and that he sees a journal of Daily Anjam Karachi commencing 12th November, 1963 and states that this Journal was not maintained when he was the General Manager, Daily Anjam Karachi. Where as P. W. 3 at line No, 290 and onward has deposed that the cash book and ledger commencing 1st July, 1963 Exhs. P-1/4 and P-1/5 were closed on 24th October, 1963 since a new cash book and a new ledger with the name Daily Anjam Ltd. Pointed on these books were received from defendant No, 1 and that the system was also altered in so far as a separate journal was to be maintained, whereas formerly the cash book and journal were contained in one book called Combined Cash Book. He has further deposed that he had closed the account appearing in the ledger Exh. P-1/5 as on 24th October, 1963 and had carried forward the balances in the new ledger maintained on 25th October, 1963, and that he had written the new cash book maintained from 25th October, 1963 and had also posted the entries in new ledger maintained from 25th October, 1963, and that he had also written the journal maintained from 25th October, 1963 up to and inclusive of 31st December, 1963. He has also deposed that the journal used from 25th October, 1963 did not have Daily Anjam Ltd. Printed thereon and that ledger Exh. P-1/1 and cash book Exh. P-3/1 are not the same which were written by him. Mr. Afzal Nabi has also relied upon Exh. P-9/2, a letter dated 20th May 1965 written by the Supervisor A. B. C. (Audit Bureau of Circulation), Ministry of Information and Broadcasting.

Government of Pakistan, whereby a statement was enclosed with the letter pointing out numerous discrepancies and changes in the fresh ledger. In the above letter it was stated that during the course of circulation audit of Daily Anjam for the period of July-December 1964, it had been observed that the general ledger of the Daily Anjam for the year 1963 which bore the seal of A. B. C.

In token of having audited in the previous year, had been totally abandoned and a fresh ledger with numerous changes introduced. Five discrepancies were also pointed out in the said letter. The reliance has also been placed on the evidence of P. W. 9 S. M. Fasih, Auditor A. B. C. And P. W. 10 Abdul Aziz Khan, a retired Joint Secretary, Government of Pakistan and a former Controller of A. B. C.

On the other hand, Mr. Zari has urged that the genuineness of Exhs. P-1/1 and P-3/1 cannot be doubted inasmuch as they bear the seal of A. B. C. In token of acceptance by the A. B. C. He has also relied upon Exh. 10/3, a report submitted by the Supervisor Regional A. B. C. On 15th November, 1967, wherein inter alia the following observation has been made :- "Placed below is a letter No, OR/3571/67, dated 2nd November, 1967 from the Official Assignee of Karachi for the estate of late Usman Azad, one time proprietor of Daily Anjam, Karachi and Peshawar. In the letter it is stated that Syed Ahmed Shah Jilani, an Accountant of Daily Anjam Ltd., had in 1964 given information to this Bureau regarding the maintenance of separate sets of account by Account Department of Messrs Hyesons Ltd., the purchaser of Daily Anjam. It has been stated that Mr. Jilani had also pointed out to this Bureau certain mistakes and flaws in the accounts. The letter in question is enclosed in original for necessary action in the headquarters office.

' I have gone through the files. The file relating to the period July-December 1963 does not disclose any such irregularity. On the contrary Circulation Audit Certificate for 21,116 copies, during the said period, was issued by us against the claim of 24,180 copies, 'The file relating to the period July-December 1964 however reveals the abandonment of the old ledger and opening of a fresh ledger, was pointed out 'to the management, besides various other irregularities vide our letter dated 20th May, 1965. It is not clear whether the said letter was issued as a result of scrutiny of record by this Bureau or in consequence of the information passed on by Mr. Jilani I

(c) It is true that ABC had pointed out certain irregularities through Exh. P.-9/2 but aforesaid report submitted by the Supervisor Exh. 10/3 indicates that no irregularity was found in the file relating to the period in question namely, July-December, 1963. On the basis the oral evidence of P.Ws. 1 and 3, it cannot be concluded that Exhs. P-1/1 and P-3/1 are not the books of account which were maintained for the period commencing from 25th October, 1963 keeping in view the fact that the above two witnesses had some grievance against the new Management as mentioned hereinabove, namely, their services had been terminated, Furthermore, P. W. 3 Jilani voluntarily offered his services to the Official Assignee (who was appointed as the receiver in the Administration suit, viz. Suit No, 97/66) to assist him inter alia for prosecuting the Official Assignee for his services for a number of years when P. W. 3 appeared before the Commissioner as a witness he was getting the above \ monthly amount. The ledger Exh. P-1/1 has the seal of A. B. C. At pages 14, 21 and 41 and whereas Exh. P-l/2 Journal has the seal at page 67. Exh. P-3/1 does not bear the seal of A. B. C. The entries in cash book Exh. P-3/1 are reflected in the ledger Exh. P-1/I and, therefore, the fact that the cash book does not contain any seal of A. B. C. Is explainable for the reason that if the ledger is genuine, it must follow that the cash book containing corresponding entries will also be genuine. The learned Commissioner has made an observation in has report about the genuineness of Exhs. P-1/1 and P-3/1 and has held that these are genuine hooks. It was urged by Mr. Afzal Mahi that the above finding is outside the competency of the Commissioner. It is true that in view of the aforesaid clarification by this Court through the aforesaid order dated 18th October 1969, any observation made by the Commissioner in this regard is of no legal consequence. But after having perused Exhs. P-1/1 and Exh. P-7/1, I am inclined to take the view that these were the account books which were presented by the defendants to the A. B. C. And that these were the books which were maintained by the defendants. However, this conclusion does not necessarily mean that all the entries in the above books are correct or that the same are sufficient to charge the plaintiffs with the liability without corroboration as required under section 34 of the Evidence Act. If any one or more entries are challenged, the Court can go into the question of the correctness of the same, and on the basis of the evidence on the record it can hold that a particular entry in aB particular account books is not correct or not proved notwithstanding! That the account book was regularly kept in the course of business. In fact there are certain incorrect entries in the above account books. I will revert to this aspect later on while dealing with the question as to the amount received by the deceased from the defendants. For the purpose of the present controversy, it will suffice to observe that in the plaint it has been averred that there was no agreement about the consideration of the various items mentioned in Para. 5 of the plaint, which include office premises at Karachi and Peshawar. If the above averment is correct, in that event there could not have been any credit entry in favour of the deceased in the account books in the absence of any agreement about the amount of the consideration between the parties.

7. (a) But the above finding does not resolve the controversy between the parties as it is an admitted position that the defendants have not paid any separate amount as a consideration for the two office premises. It was urged by Mr. Zari that the plaintiffs were not entitled to receive any consideration as the office premises at Karachi and Peshawar were part of goodwill of the business of publishing Daily Anjam, It was further urged by him that in any case, any agreement for the payment of any consideration for the office premises will be hit by section 7 of the West Pakistan Rent Restriction Ordinance, 1959. It was also submitted that as the tenancy rights in respect of the two office premises in question were not transferred in favour of the defendants by the time of filing of above suit, the plaintiffs had no cause of action.

' Whereas Mr. Afzal Nabi has urged that the plaintiffs were entitled to receive separate consideration for the office premises as the same were not the part of goodwill of the business and that any agreement for the payment of the same is not hit by section 7 of the above Ordinance. His further submission was that as the tenancy rights of the Karachi office admittedly have been transferred in the name of defendant No, 6 during the pendency of this suit, this Court is competent to take into consideration subsequent events.

' P. W. Muhammad Asghar Faruqui, the Custodian Security Safe Deposit has proved some of the rent receipts, Exhs. 5/3 to 5/22. Exh 5/7 is a receipt dated 20th July, 1964, in respect of the rent for the month of July 1964 issued in the name of Daily Anjam Limited, Exh. 5/17 is a rent receipt dated 15th June, 1966, in respect of the rent for the month of February and March, 1966, issued in the name of Daily Anjam Ltd., Exh. 5/18 is a rent receipt dated 30th December, 1966, in respect of the rent for the month of July, 1966 to December, 1966, in the name of Daily Anjam Ltd. The remaining rent receipts are in the name of DailY Anjam. In other words, the above three rent receipts were issued in the name of the limited company, whereas the other receipts were in the name of the old firm Daily Anjam., It may be pertinent to mention that the last rent receipt on the record in favour of the firm and not in the name of the Anjam Ltd. Is Exh. 5/15, dated 7th May, 1966, for' the month of January, 1966. It may also be observed that in July, 1964, Exh. 5/7 was issued in the name of "ANJAM Ltd." but the subsequent rent receipts were again issued in the name of the firm "Anjam" till the month of February, 1966, namely. Exh. 5/7 referred to hereinabove which was issued in the name of "Anjam Ltd." for the months of February and. March, 1966. It may be noticed that the subsequent rent receipts were issued in the name of the limited company and, therefore, the tenancy rights of the office premises at Karachi were transferred in favour of the limited company. P. W. 5 has also deposed that the daily Anjam Ltd, had vacated the premises of 11th October, 1967. He has produced letter of surrender, dated 1 1th October, I967, as Exh. P-5/2. It is, therefore, clear that the office premises of Karachi were transferred in the name of the limited company and were surrendered by it. It may also be observed that w.e.f, 1st July, 1963, the promoters of the then proposed Co., had purchased the name of "Daily Anjam", with the intention to convert it into a private Ltd. Co., the fact that the rent receipts continued to be issued up to January, 1966 in the name of "Daily Anjam" is of no legal consequence, as the promoters took over the possession of the office premises upon the execution of the agreement in question, and were entitled to use the name of "Daily Anjam".

(b) Reverting to the contention of Mr. Zari that the plaintiffs were not entitled to receive any separate consideration for the offs premises at Karachi and Peshawar as the same were part of "the goodwill of the business of publishing daily Anjam". It may be observed that in support of the above contention Mr. Zari has referred to the case of Haji Abdul Latif and others v. Suleman Umar and another (t), New Gujrat. Cotton Mills Ltd. v. Labour Appellate Tribunal and others (2) and Messrs S. C. Cambatta & Co., Private Ltd., Bombay v. Commissioner (1) AIR 1929 Sind.85 '(2) AIR 1957 Rom.

111 of Excess Profits Tax Bombay (1). On the other hand Mr. Afzal Nabi, learned counsel for plaintiffs, has referred to the cases of Dr. Peshoton v. Peeroz Shaw and another (2), Habib and others v. Haji Muhammad and others (3), Khuda Bux v. Syed Badrul Hasan (4), Controller of Estate Duty v. Messrs Muhammad Bashir Nazir, etc. (5) and Mst. Sughra Bai and 10 others v. Fida Husain Muhammad Ali Kerai and another (6).

(i) Referring to AIR 1929 Sind, it may be stated that the above case was a case of dissolution of partnership, in which while considering the report of the Commissioner, Desouza A J C has observed that the goodwill of the business means every affirmative advantage as contrasted with negative advantage that has been acquired in carrying on the business, whether connected with the premises of the business or its name or style and everything connected with or carrying with it the benefit of the business. It has also been observed that the reactiveness of possible or probable competition should be one of the main determining factors in the valuation of the goodwill.

(ii) Reverting to the aforesaid Bombay case of 1957, it may be observed that a Division Bench while considering a constitutional petition against the order passed by a Labour Appellate Tribunal has been pleased to observe that the goodwill of a business in inclusive of positive advantages such as 'Carrying on the commercial undertaking at a particular place and in a particular name and also his business connections, his business prestige and several other intangible advantages, which a business may acquire. In the above case, the question for consideration before their Lordships was, as to whether the successor, who decided to run the same business which was carried on by his predecessor, would be liable in respect of rights and obligations pertaining to the employees. It was held that the aforesaid rights were continuing and were enforceable against the new management, and were not affected by the substitution of the new management for the old. In the above case, the factory along with its machinery, name, etc. Was sold under the Court order to the new management.

(iii) Referring to the 1961 Supreme Court of India case, it may be observed that the question before their Lordships of the Supreme Court was as to whether on the facts of the case, the Appellate Income-tax Appellate Tribunal was right in applying section 8 (3) of the Excess Profit Act in' respect of the goodwill of the company. In that context their Lordships have observed that goodwill of a business depends upon a variety of circumstances or a combination of them, the location, the service, the standing of the business, the honesty of those who run it and the lack of competition and many other factors go individually or together to make up a goodwill and that at the same time locality is not everything.

(iv) With reference to 1962 Karachi, it may be observed that the above case also related to the dissolution of a partnership and while {{TABLE}}

(1) AIR 1961 SC 1010 (2) PLD 1962 Kar. 293

(3) PLD 1963 Kar. 1050 (4) PLD 1968 Kar. 657

(5) PLD 1974 Lab, 108 (6) 1971 SC M B. 143 {{TABLE}} ' considering the question as to whether the place of business is a part of the goodwill of the firm, it was observed by Qadeeruddin, J. (as his Lordship then was) that the place of business is not invariably part of the goodwill of the firm and that a contractual tenancy is transferable subject to the terms of the contract or local usage.

(v) Referring to 1963 Karachi case, it may be stated that a Division Bench comprising of Qadeeruddin Ahmed and H.T. Raymond, JJ. While interpreting the word "goodwill" in relation to a partnership firm were pleased to observe that the goodwill is an attribute of a business, trade or profession and as it is an intangible property, it cannot be composed of anything tangible, though certain tangible properties create goodwill and that if goodwill alone is sold, then tangible properties are not usually sold as a part of it and that in a case of a buyer who buys nothing else besides "goodwill" he may acquire the name and style of the business only ; but the circumstances of a sale may be such as to indicate that the intention of the parties was to buy and sell more than mere name. The reliance was placed upon two passages from Volume 24 of the book, "American Jurisprudence" at page 809, which reads as follows :- "a sale of goodwill is not necessarily accompanied by the tangible assets of a business. A were conveyance of goodwill will not of itself effect a transfer of the building owned by the vendor in which the business is being conducted. On the other hand a sale of the business and its assets may by implication transfer the goodwill of such business.

' Even though there is a no stipulation not to compete, the seller of a business and its goodwill is 'precluded from interfering with the purchaser in the enjoyment of the particular business stand transferred by him to the purchaser ; and if a lease of the premises is included in the transfer 'the vendor has the implied obligation not to interfere with the vendee in his use of the business house and control of lease during the period covered thereby."

' In the above case, it was held that the purchaser of the goodwill bad acquired only the name of the firm without any assets and the tenancy rights.

(vi) Referring to 1968 Karachi case, it may be stated that in the above case the question for consideration before the Court was that if a partner permits the use of the premises for business purpose in respect of which he is the lessee, whether the same will become part of the partnership.

It was held that mere use of such premises by a partnership would not make the premises part of partnership property and that such premises after dissolution of the partnership should be treated as being property of the partner, who brought it into the partnership.

(vii) Reverting to 1974 Lahore case, it may be stated that A Division Bench while interpreting sections 2 (14) (15), 4 and '7 of the Estate Duty Act, 1950 has been pleased to observe that the incidents and characteristics of "goodwill" of a partnership justify treating "goodwill" as property within the meaning of Estate Duty Act on the basis of the provisions of section 53 of the Partnership Act, section 27 of the Contract Act and section 57 of the Specific Relief Act.

(viii) With reference to 1971 SCMR 143 it may be observed that the Supreme Court while considering the phrase "goodwill" of a firm has been pleased to observe that the goodwill means use of name of business and reputation acquired by a business firm but it does not include `pagri'.

Money for the shop.

The ratio decidendi of the above cases is that the term "goodwill o business" is a composite thing, which has very wide cannotation, and that it includes every positive advantage that has been acquired in carrying on the business, whether connected with the premises of the business or its name and style, and everything connected with or carrying with it C the benefit of the business. It is also referable in part to its locality, in port to the way in which it is conducted and the personality of those who conduct it. A sale of goodwill of business may and may not include the business premises as it will depend on the terms of the contract, the nature of business and the question as to whether a running business is sold, etc. Where a trade is established in a particular place, for the chance of being able to keep the trade connected with the place where it has been carried on, like goodwill of a well-accustomed public house. There may be a E case in which good will of business may include things as per terms of the agreement.

' In the instant case, the agreement between the deceased plaintiff and the defendants was seduced into writing and it will be necessary to refer to the terms of the above agreement in order to determine as to whether the parties had adverted to the question of the office premises. The relevant clause of the above agreement, Exh. 0-1/25, have been quoted hereinabove in para.

1. It may be pertinent to mention that sub-para. (2) of the agreement provided that the promoters intended to form a company under the Companies Act with a view to among other things acquire plant, machinery, furniture, fittings and tenancy rights in press premises, office premises, godown, etc. Of the 'daily Anjam', Karachi and Peshawar and to enter into an agreement for the aforesaid purpose with the second party (that is the deceased plaintiff). Whereas clause (3) of the agreement provided that the goodwill of the said business of publishing "daily Anjam" at Karachi and Peshawar with the exclusive use of name "daily Anjam" as part name of the company and the right to publish Anjam, daily, weekly, fortnightly and monthly at Karachi, Peshawar and other places shall be transferred to the promoters and later to the company by the party of the second part for a consideration of Rs, one lac which shall be paid by the company to the party of the second part in the manner mentioned. Therein. Furthermore, clause 4 of the agreement provided that the party of the second part agreed to transfer all furniture's, fittings, fixtures and all the tenancy rights in the building, press premises, office premises, godown at present used in connection with the business of printing and publishing daily Anjam at Karachi and Peshawar to the promoters if required to do so and later to the company. Whereas clause (5) of the agreement provided that the second party agreed to sell and transfer at cost price to the promoters if required to do to and later to the company all plants and machinery at Karachi and Peshawar, including Rotary machines and other machines then recently imported and not installed as well as chemical etc. It may be noticed that whereas in clause (3) the consideration for the transfer of the goodwill of the business of publishing daily Anjam at Karachi and Peshawar with the exclusive use of the name `daily Anjam' was specified as Rs, One lac but whereas under clause (4) the deceased plaintiff had agreed to transfer all furnitures, fittings and all the tenancy rights in the building, press premises, office premises, godown, etc. To the promoters if required to do so and later to the company. In the above clause it has not been specified whether the deceased plaintiff was to receive any amount of consideration for the transfer of the above items. It is significant to note that clause (5), which is also couched in the same terms, provided that the deceased plaintiff agreed to sell and transfer at cost price to the promoters if required to do so and later to the company all plants and machineries etc. In other words, clause (5) contemplated specifically the payment of the cost price for the plants and machinery. On the other hand clause 4 though contemplated the transfer of the items mentioned therein including office premises but conspicuously did not contemplate any payment. Furthermore, in clause (4) the words "to transfer" have been used and whereas in clause

(5) the phrase "to sell and transfer" has been used. It may also be pertinent to point out that the above agreement was effective from Ist July 1963 though it was executed on 10th August 1963. In clause 6 of the agreement, it was provided that the deceased plaintiff shall pay, satisfy and discharge all his debts and liabilities contractual or otherwise in connection with the said business as on 30th June 1963 including any liability for payment of income tax, super tax, sales tax or other tax whatsoever and shall indemnify the company against all actions, proceedings, claims and demands in respect thereof. Under clause 7 the deceased plaintiff held out representation that the property agreed to be sold under the agreement was his exclusive property free from any tent, charge encumbrance, claim or demand whatsoever. As the business of publishing daily Anjam was to be transferred as a running concern with effect from 1st July 1963, that is, one month 10 days prior to the date of execution of the agreement and as clause (4) of the agreement did not provide for the. Payment in contrast to clause (5) relating to the transfer of the machinery provided for the payment at the cost price of the plaint and machinery, the reasonable interpretation of the above document as a whole would be that the goodwill of the business of publishing daily Anjam included the office premises etc. And that the deceased plaintiff was not entitled to receive any separate consideration. The words "to the promoters if required to do so and later to the company" do not connote that the items specified In clause (4) of the agreement were to be transferred only if required. In my view, the above words connote that the deceased plaintiff was to transfer the said items if required first in the names of the promoters and in any case later on in favour of the proposed company. It will be unreasonable to presume that the parties would not have provided for the payment of consideration inter alia for office premises if a separate consideration was to be paid and if the items mentioned in clause (4) were not part of the good will of the business, particularly when in para. 2 of the preamble to the agreement it was specifically stated that the promoters intended to form a company with a view to among other things acquire plants, machinery, fittings and tenancy rights in press premises, office premises, godown etc. The promoters occupied the office premises as the above agreement was concluded which was made effective retrospectively as pointed out herein-above, that is, with effect from 1st July 1963. It is highly improbable that the deceased plaintiff, would have permitted the occupation of the office premises and other items mentioned in clause (4) without first settling the amount of consideration if it was to be paid in addition to Rs, One lac specified in clause (3) of the agreement.

In view of my above finding, it is not necessary to examine the contention as to whether the agreement to pay consideration for the office premises would have been hit by section 7 of the Pakistan Rent Restrictions Ordinance or the effect of the non-transfer of the tenancy rights of the Karachi office premises in favour of ; defendant No, 6 prior to the filing of the above suit. However, it will suffice to observe that even otherwise there is no reliable evidence on the record, on the basis of which the amount of consideration for the Karachi and Peshawar offices can be assessed, as neither the sizes of the offices are indicated in the evidence nor there is any evidence on the question what was the "Pagri' amount prevalent in 1963 of the similar sizes of the offices in the same localities. So even if it would have been held that the plaintiffs were entitled to receive a separate consideration, it would not have been possible to assess the same on the basis of the evidence on the record. I, therefore, hold that the plaintiffs are not entitled to receive any amount on account of the office premises at Karachi and Peshawar.

7-A. (a) (Items Nos. IX & X). It will be convenient to take up two items of claim, viz. Rs, 28,000 and Rs, 10,000 being the amount of claim in respect of fittings, fixtures and furniture's at the Karachi and Peshawar Offices respectively. For the reasons discussed hereinabove in respect of the claim for office premises. I am inclined to hold that the deceased plaintiff was not entitled to any separate amount for the above of items. His significant to note that no inventory for the handing over of the fittings, fixtures and furniture's in respect of the two office premises was prepared. It is highly improbable that if the deceased would have been entitled to receive a separate consideration he would not have insisted upon the preparation of an inventory and for the fixation of the valuation of the above items before handing over the above items to the promoters of the company nor any detail of the above items is given in the plaint. It may be pertinent to refer the statement of P. W. 3 Mani at lines No, 1240 to 1255 at page 80-81 and line Nos. 2021 to 2032 at page 100 of the deposition in respect of the claim of the above items :- ' Lines Nos. 1240-1255 read :- "In July, 1963 the deceased did not tell me that he bad sold the office premises to daily Anjam Limitted. In November, 1963 I received a voucher to credit the account of deceased Usman Azad with the value of furniture and fittings. I also received a similar voucher in November, 1963 with regard to the office furniture and fittings of the Peshawar Office. The value of the office furniture and fittings of the Karachi office shown in the voucher was Rs, 20,000 and of the Peshawar office also shown in the voucher was Rs, 10,000."

' Lines Nos. 2021 to 2032 at page 100 :- Q.-You have stated before that separate account books were being maintained in respect of the Peshawar Branch at Peshawar. Hence why was the entry of Rs, 10,00a made in Karachi books ?

A.-This entry was made in the Karachi books as the transfer voucher had been prepared at Karachi. I did not advise the Peshawar office about this entry of Rs, 10,000 as made in the books of the Karachi office.'

' The above statement is consistent with the averments made by the plaintiffs in para. 5 of the plaint, which are based on the assumption that the pasties did not agree upon any amount for the items mentioned in the aforesaid para 5 of the plaint and that the estimated cost of the said item was. Rs, 4,34,635.05. It was urged by Mr. Zari in respect of the above two items and in relation to other items that the evidence inconsistent with the pleadings may be ignored. In support of his above contention, he has referred to the case of Pakistan v. Abdul Ghani (1), Mls. Chowdhary Brothers Ltd. v. Jaranwala Central Cooperative Bank Ltd. (2), Hussain v. Mansoor All and 5 others (3), Mahagu and another v. Narayan and others (4), Govind Singh and another v. Mungaji (5), Abdul Aziz v. Abdul Razaq (6) and the case of Yousuf v. Hashimbaoy & Co. And others (7).

(b) In the aforesaid Supreme Court case of 1964, it has been held that the plaintiff is not entitled to rely on the defendant's pleadings and that a ground not taken in the plaint cannot be urged.

Whereas in the said Supreme Court case of 1968, it has been held that no evidence can be allowed on the facts neither raised in the pleadings nor incorporated in the issues. In the Karachi case of 1977 it was urged that Quaid-i-Azam was neither a Shia nor a Sunni but a simple Muslim, it was held that as no such plea was raised in the pleadings the Court was not bound to decide the above question. Whereas in the case of 1952 Nagpur, it was held that no evidence could be allowed on a material fact not pleaded. Similarly in the earlier case of Nagpur of 1922, it was held that any Pi,. d ding contravening Order VI, rule 7, C. P. C. Was liable to be ignored. Referring to the aforesaid case of Azad Jammu & Kashmir of 1971, it may be observed that in the said case, it was held that a plaintiff could not be allowed to succeed on a ground not taken in plaint or replication. Whereas in the aforesaid Karachi case of 1966 it was held that a party could not prove case different from that has been pleaded.

(c) In my view, the above rulings support the contention of Mr. Zari that the case set up by the plaintiff in the plaint was that there was no agreement between the parties about the consideration in respect of the items mentioned in para 5,of the plaint, but whereas P.W. 3 Jilani has come out with the above-quoted statement which presumes that there was an agreement between the parties and that on the basis of the said agreement two vouchers for the two amounts were given for crediting the same in the account books. It is also not understandable as to why the credit entries were to be made for the above items in November, 1963 when fixtures, fittings and furniture were handed over to the promoters on 10th August, 1963 with retrospective effect.

' Even otherwise, the evidence produced by the plaintiff is not sufficient to conclude that the values of fixtures, fittings and furniture were:

(1) PLD 1964 SC 68

(2) 1968 SCM R 804

(3) PLD 1977 Kar. 320

(4) AIR 1952 Nag. 60

(5) AIR 1920 Nag. 147

(6) PLD 1971 Azad J& K 20

(7) PLD 1966 Kar. 456 ' Rs, 20,000 and Rs, 10,000 of the Karachi and. Peshawar offices respectively. In view of the above discussion [ hold that the plaintiff are not entitled to any amount in respect of the above items. {{TABLE}}

8. (a) Items No, (iv) Salary July/August, 1963 Rs, for Karachi office 44,000

(v) Salary July, to November, 1963 for Peshawar offices 36,000 In para. 7 of the plaint it has been averred that deceased Muhammad Usman Azad had also paid salary of the staff amounting to Rs, 80,000. In the statement of the claim dated 5th September, 1967 (which is marked as Annexure A) filed before the Commissioner, the description of the above two items given is as follows :- "Salary of Karachi office for July, 1963 and Rs, August, 1963 paid direct to Messrs Hyesons 44,000 Cotarnercial Industries Ltd. By the deceased himself. Salary of Peshawar Branch for July, 1963 to November, 1963 paid dirrct to Messrs 36,000 Hyesons Ltd. By the deceased himself. {{TABLE}} ' It may be observed that the above statement before the Commissioner was quite inconsistent with the plea taken in para. 7 of the plaint, which was that the deceased Sheikh Muhammad Usman Azad had also paid salary of the staff amounting to Rs, 80,000. In support of the above claim the plaintiffs have relied upon the oral evidence to P. Ws. 1 and 3, Abdul Waheed Qureshi and Jilani respectively. P. W. 3, at line No, 668-680 at page 65-66 has deposed that in December, 1963 he had credited the account of the deceased with Rs, 44,000 and debited this amount to the account of defendant No, I and that this entry was made by him on the basis of the vouchers received by him. He goes on to say that the item of Rs, 44,000 shown in the statement of accounts as salary of July and August, 1963 of the Karachi offices had been paid by deceased Usman to defendant No, 1 and had been entered by him in the cash book, and that a sum of Rs, 36,000 was paid by the deceased Usman to defendant No, 1 being the salary of, the Peshawar Branch for July, to November, 1963. In this regard it may be pertinent to refer to the statement of P. W. 1 Waheed Qureshi at lines 1000 to 1028 at pages 26-27 where he has deposed as follows: "After October, 1963 the salary of the staff of diily Anjam was not paid by the deceased Usman Azad. I am shown page 37 of the cash book Exh. P. 1/4 and I state that the debit entry of Rs, 20,558.88 shown therein as 'staff pay for July, 1963' is in the handwriting of Muhammad Idris Shah Rani and is correct Entry is produced as Ex. P. 1/17. I am shown page 65 of the cash book Exh. P. 1/4 add state that the debit entry therein for Rs, 21,263 20 as staff salary of August 1963, is in the handwriting of Idris Shah and is correct. Entry is produced as Exit. P. 1/18. I am shown at page 65 of cash book Exh. P. 1/4 for Rs, 21, 963.20 which reads as cash received from Hyesons Commercial Industrial Corporation for the staff salary, ' Entry is produced as Exh. P. 1/19. It is in the handwriting of Idris Mani. I am shown page 89 of ledger Exh. P. 1/15 and I state that the two debit entries shown therein for Rs, 20,558.88 and Rs, 21,263.20 are the corresponding entries to Exhs. P. 1/17 and P. 1/18 shown in the cash book Exh. P. 1/4. Entries is produced as Exhs. P. 1/20 and P. 1/21.'1.

' A perusal of the above-quoted statements clearly shows that salary for the months of July- August, 1963 was paid by defendant No, 1. 1 have examined Exh. P. 1/4 cash book Exh. P. 1/5 ledger containing the above debit and credit entries, which are exhibited as Exhs. P. 1/17, P. 1/18 and P. 1/19. It is also an admitted position that the above account books are in the handwriting of P. W.

3. In the plaint as pointed out herein-above, it has been averred that the deceased had paid the salary to the staff but whereas P. Ws. 1 and 3 in their depositions have come out with the assertion that though the salary was paid by defendant No, 1 to the staff but this amount was paid back by the deceased to defendant No,

1. It appears that in order to overcome the accounts books viz Exh. P.

1/4 and Exh. P. 1/5 which were written by P. W. 3 himself, the above witnesses have come out with the allegation that the above amount was refunded back by the deceased to defendant No, 1.

Since the above statement is in conflict with the pleadings it is liable to be ignored. Even otherwise, the above allegation of P. Ws. 1 and 3 does not stand to reason as it has not been explained as to why the deceased had refunded the amount of salary of the staff for the two months in question to defendant No, 1.

(b) Reverting to the second item viz. Rs, 36,000 in respect of the staff salary of the Peshawar office, it may be pertinent to mention that it has come on the record that till January 1964, defendant No, 6, that is, Anjam Ltd., did not have any bank account and, therefore, the old account maintained with M/s. Australasia Bank Ltd , was operated upon by the deceased plaintiff during the period from July 1,;63 till the time the account was opened in the name of the limited company. Under clause 6 of the agreement, the deceased plaintiff was liable to discharge all debits and liabilities contractual or otherwise for the period ending on 30th June, 1963. Similarly he was entitled to receive recoveries in respect of the claim contractual or otherwise for the aforesaid period prior to 1st July, 1963. It may be observed that in respect of the above item, P. Ws. 1 and 3 have deposed that this amount was paid by deceased Usman Azad to defendant No, I whereas in para. 7 referred to herein-above, the averment was that the deceased had paid the salary to the staff. The above statements are therefore, in conflict with the pleadings. Whereas Fay az Mouji at Lines Nos. 310-371 at pages 150-155 has deposed as follows :--- "A salary account was maintained in respect of Peshawar branch. This account is at pages 270 to 271 of the ledger Exh. P. 3/13. 1 produce Exh. P. 3/13. I produce this account as Exh. D. 2/5. The account Exh D. 2/5 commences on Ist July, 1963 and ends on 31st December, 1963. The salary paid from 1st July, 1963 till 31st December, 1963 appear in the account Exh. D. 2/5. From the account Exh. D. 2/5 1 state that the salary for July, 1963 was paid on 10th August.

1963. The amount paid was Rs- 7,815.16. The salary for July 1963 was paid by daily Anjam Ltd.

' Q,-It is alleged that the salary for July, 1963 had been paid by deceased Usman Azad from his own pocket. Does the account Exh. D. 2/5 show this ?

' A.-The account Exh. D. 2/5 does not show this. For the months of August, September, October, November and December, 1963 daily Anjam Ltd. Paid the salary to the staff of the Peshawar Branch.

The salaries paid per month are shown in the account Exh. D. 2/5 and are as follows :- {{TABLE}} Rs, August, 1963 7656.38 September, 7392.29 October, tP 7929.93 November, 7824.17 December, 5901.75 {{TABLE}} ' The account Exh. D. 2/5 shows that the salaries from August, 1963 till and inclusive of December, 1963 were paid by the daily Anjam Ltd."

' It may be observed that the accounts books relating to Peshawar office Exhs. D-1/1 and P-3/13 were proved by the defendants through D. W. 1 Abdur Rehman.

' The statement of accounts in respect of Peshawar office filed by the defendants, Exh. D-2/2 indicates that the deceased plaintiff was entitled to receive a sum of Rs, 68,288.89 in respect of the following items :- {{TABLE}} Rs, Newsprint stock. 33,320.00 Payment of the bills in respect of the period prior to July 1963 received during July to December 1963 27,866.87 Loan and advances from June 1963 salary record 1,258.50 Rents of shops 2,200.00 Office rent July-December 1963 3,000.00 Cash balance in hand 643.00 {{TABLE}} ' Against the above sum of Rs, 68,288.39 an amount of Rs, 25,442 has been debited which inter alia includes a sum of Rs, 8,408.25 being the amount of salary for June 1963 which was paid by the defendants, though it was payable by the deceased plaintiff.

' Whereas Exh. D-2/3, which is another statement of account filed by the defendants in respect of the deceased's account of Karachi office, indicates that the deceased was entitled to receive a sum of Rs, 1,80,346.48 against which a sum of Rs, 71,173.97 in respect of the 6 items mentioned in the debit column has been adjusted. It may be observed that one of the items on the credit side, (the total of which is the aforesaid amount, viz. Rs, 1,80,346.48 mentioned by me earlier) is a sum of Rs, 84,019.88, which has been described as follows :- {{TABLE}} "Cheque paid by Mr. Usman Azad for expenses Rs, 20/7 and 24/10. $4,019.88, {{TABLE}} ' Tile above-quoted entry indicates that the deceased had paid for expenses for which he was given the credit of the above sum. In view of the above discussions I am of the view that the plaintiffs are not entitled to any additional amount in respect of the above two items. {{TABLE}}

9. (a) Items Nos. (vi) Misc. Expenses at Karachi. Rs, 32,000

(vii) Misc. Expenses at Peshawar. 'Rs, 3,000 {{TABLE}} ' In support of the above claim the plaintiffs have relied upon the evidence of P. Ws. 1 and 3. P. W. 1 in his examination-in-chief has deposed that all the expenses of daily Anjam Karachi-July/August, 1963 were borne by the deceased Usman Azad from his own account. The total miscellaneous expenses for Karachi for July/August were about Rs, 35,000 whereas at lines No, 729-756 at pages 19-20 he has deposed as follows :- "I am shown cash book page 35 and I state that the following credit entries appearing therein all relate to Misc. Expenses, viz. :- {{TABLE}} Entry for Rs, 559.19 PP 111 pp 558.08 ,, PP PP 200.00 106.40 PP Of 150.00 1/ P9 940.00 91 ft 1000,00 P9 99 3009.70 /9 2000.00 Entry marked Exh. P-1/14.

I am shown cash book page 99 and I state that the credit entry for Rs, 20,000 in favour of the deceased Usman relates to Misc. Expenses. Entry marked Exh. P-1/15. I am shown cask book page 129 and I state that the credit entry for the items shown in Exbs. P-1/14, P-1/15 and P-1/16 amounts to Rs, 30,769.88." {{TABLE}} ' From the above-quoted statement of P. W. 1, it is clear that the deceased was given a credit of Rs, 20,000 on account of miscellaneous expenses.

' P. W. 3 has deposed that he had given credit entry to the deceased for Rs, 32,000 and Rs, 3,000 in respect of Miscellaneous expenses of Karachi and Peshawar in November 1963 in the books for 25th October 1963 to 31st December 1963 maintained by him. In the cross-examination what miscellaneous expenses on postage, folding charges, etc. Had been at line No, 4118, page 103 he has deposed that he cannot state as to incurred at from 1st July 1963 to 31st December 1963.

Whereas Fayaz Mouji at line No, 372 onwards at page 151 has deposed as follows :-- "From 1st July 1963 all miscellaneous expenses of the Peshawar branch were paid by daily Anjam Ltd. These miscellaneous expenses have been styled as 'general expenses' in the ledger Exh. P-3/3 and appear at pages 146 to 151 of this ledger. I produce the amount of general expenses marked as Exh. D-2/6 and appear at ledger Exh. P-3/13. The general expenses as shown in Exh. D-2/6 amount to Rs, 955.62 and for the period 1st July 1963 till 31st December, 1963. The account Exh. D-2/6 does not show that deceased Usman Azad had paid the "general expenses of the Peshawar branch from July 1963 till December 1963'."

(b) Front the above statements of the witnesses, it appears that in fact the deceased plaintiff had incurred certain expenses though there is discrepancy in the amount. As pointed out by me hereinabove that in Exh. D-2/3 the defendants have given credit for a sum of Rs, 84,019.88 on account of cheque paid by Mr. Usman Azad for expenses 29/7 - 24/10. Even the cash book at page 99 which was confronted to P. W. 1 indicates that a credit entry for Rs, 20,000 in favour of the deceased was given, the above entry is marked Exh. P-1/15. In my view, the plaintiffs are not entitled to receive any amount in addition to Rs, 84,019.88. For which the deceased plaintiff was given credit. I intend to deal with the question as to whether the plaintiffs have received the total amount mentioned in Exh. D-2/3, later on here in below in para. 12.

10. Item No, (vii). For printing at Peshawar. Rs, 15,000.

' It may be observed that this item was not claimed is the plaint. However, when the matter was referred to the Commissioner, the break-up of the calm given by the plaintiffs included the above item. Since this amount is not a part of the claim in the suit it does not require any adjudication being beyond the pleading. Even otherwise, the plaintiffs have failed to establish this item of the claim. It may be observed that the above amount was allegedly paid by the deceased to Super Art Press Ltd. In respect of Printing charges of Peshawar. P. W. 1 has deposed at line No, 625 at page 16 that the owners of the Super Art Press are the Super Art Engravers Ltd. And that is 1963, the Managing Director of the latter company was the deceased Usman Azad. P. W. 4 Raisuddin was examined by the plaintiff to prove the payment of the above amount, what an employee of the Super Art Press at the relevant time. He has deposed that the amount of Rs, 15,000 has been handed over to him by deceased Usman Azad at the premises of Super Art Press Ltd. And that nobody else was present when the deceased handed over Rs, 15,000. In the cross-examination the above witness admitted that he was at no time the manager of Super Art Press Ltd. And that he had appeared before the Commissioner in response to a summon issued in the name of ex- manager Super Art Press. Whereas P. W. 3 has deposed that he did not know that who had received Rs, 15,000 on behalf of Messrs Super Art Engravers Ltd. It is an admitted position that the plaintiffs have not produced any documentary evidence in support of the above claim. On the basis of the above oral evidence it cannot be concluded that the plaintiffs are entitled to recover the above sum.

11. (a) Before taking up the question, as to whether the deceased plaintiff was paid full amount by the defendants, it would be appropriate that I may dispose of Mr. Zari's objection about the competency of the above suit which he urged after concluding his arguments on merits of the case. It was urged by Mr. Zari that the above suit was dismissed for non-prosecution on 25th April 1966 and that against the above dismissal order, the Official Assignee, who was appointed as the receiver in the administration suit pertaining to the estate of the deceased plaintiff, viz. Suit No, 97/66, filed an application under Order IX, rule 9, C. P. C. Which was not competent. His further submission was that though the defendants had raised this objection in the counter affidavit to the above application under Order IX, rule 9, C.P.C. And though the above objection was overruled by the order dated 12th September 1966, whereby the above suit was restored, this Court is competent to go into the above question again as the above order, according to Mr. Zari, is nullity in law. He has also urged that after the death of the deceased plaintiff, the widow was not impleaded as a party and, therefore, the suit was incompetent. His further submission was that in any case Mr. Afzal Nabi had not filed power of attorney in favour of plaintiff No, 3 who had signed vakalatnama in his favour for himself and as the attorney for the other legal heirs, and, therefore, the suit was not competent as all the legal representatives were not before the Court.

(b) Reverting to the first contention of Mr. Zari that the Official Assignee was not competent to file the aforesaid application under Order IX, rule 9, C. P. C. (C. M. A. 1071/66), it may be observed that the above contentions devoid of any force as I had sent for the file of Suit No, 97/66, which indicates that by the order dated 28th April 1966, the appointment of the Official Assignee as the receiver was confirmed and in para. 6 of the said order it was expressly provided that the Official Assignee was empowered to manage the assets of the deceased and to make recoveries. In my view the order empowered the Official Assignee to prosecute the pending legal proceeding, in which any claim was involved. Even otherwise I am not competent to review the order dated 12th September, 1966 passed in the above suit, whereby the Receiver's above application under Order IX, rule 9, C. P. C. Was granted. A perusal of the above order shows that the defendants had raised the above objection before the learned Judge (Feroze Nana, J.) but the above objection was expressly rejected, If the defendants were aggrieved by the above order, they should have filed appropriate legal proceeding against the same. Mr. Zari's contention that the above order being nullity in law can be ignored by this Court, in my view, is untenable, as the above restoration order cannot be termed as a void order. The Court was competent to restore the suit and by doing so it acted with its power. Mr. Zari has referred to the case of Tolararn v: Custodian of Evacuee Property, Karachi (1). Wherein an observation to the effect that "if an order be nullity then every Court before whom it is brought is not only entitled but bound to ignore it", was made. In my view, the above ruling has no application to the instant case as the aforesaid order dated 12th September 1966 cannot be termed as an order void or an order in nullity in law. Furthermore, since now the legal heirs are prosecuting the above suit, after the discharge of the receiver the above objection cannot be pressed into service at this stage.

(1) PLD 1964 SC 89

(c) Referring to Mr. Zaii's contention that the widow was not impleaded as a legal representative in the amended plaint, it may be observed that the amended plaint was filed on 5th December, 1964, whereas the defendants filed their written statement on 26th January, 1965, but no objection to the effect that the suit was bad because of non-joinder of the widow of the deceased was taken.

Therefore, no issue was framed on the above point. At this stage after the expiry of nearly 15 years the defendants cannot be permitted to raise this objection, and that too after the submission of the arguments for a number of days on the merits of the suit. Even otherwise, the above objection appears to be devoid of any force as the widow was very much before the Court as she was appointed by the Court on 16th January, 1967, as the next friend for the minor children in place of their uncle, but she did not choose to become a party to the suit in her personal capacity.

(d) Reverting to the last objection that Mr. Afzal Nabi had not filed the powers of attornies in favour of plaintiff No, 3 from the other plaintiffs, it may be observed that Mr. Afzal Nabi submitted 4 original powers of attornies in the Court on 7th November, 1997 and after examining the same Mr. Zari candidly submitted that the above powers of attornies were in order.

12. (a) Referring to the question, as to whether the deceased plaintiff had received full payment of the amount due to him, it may be observed that the defendants have filed two statements of account of the deceased plaintiff, that is Exh. D-2/2 pertaining to the Peshawar Office and Exh. D- 2/3 pertaining to the Karachi Office. According to Exh. D-2/2 the deceased plaintiff was entitled to a sum of Rs, 68,288.39 in respect of newsprint and other items mentioned therein, but according to the above statement a sum of Rs, 25,422 was debited against the above amount in respect of the various items mentioned at the debit side of the above statement. Thus according to the above statement Exh. D-2/2 the deceased plaintiff was entitled to receive a sum of Rs, 42,846.39 in respect of the Peshawar office.

' Referring to Exh. D-2/3, it may be observed that in the above statement on the credit side it has been shown that the deceased plaintiff was entitled to receive a sum of Rs, 1,80,346 in respect of the price of news print, and for the cheque paid by the deceased for expenses 29/7 - 24/10 etc. Whereas on the debit side of the said statement it is shown that the deceased plaintiff was liable to pay a sum of Rs, 71,173.97 in respect of the 5 items mentioned therein. Thus the deceased plaintiff was entitled to receive a sum of Rs, 1,09,172.51 in respect of the Karachi office after adjusting the aforesaid sum of Rs, 71,173.97. In other words, according to the above two statements the deceased plaintiff was entitled to a sum of Rs, 1,52,018.90. In Exh. D-2/3, the defendants have debited a sum of Rs, 1,20,000 against the above amount without any detail of the date or mode of the alleged payment. After adjusting the above sum of Rs, 1,20,000 the defendants had shown a balance of Rs, 32,018.90, for which amount a cheque was sent by the defendants through their Advocates letter dated 18th April, 1964 in response to the deceased plaintiff's legal notice dated 31st March, 1964.

Therefore, according to the defendants they have paid full amount to the deceased plaintiff. It may be observed that the above amount payable by the defendants was in addition to Rs, 1 lac provided for the consideration for the goodwill of the business of daily Anjam as per clause (3) of the agreement Exh. P-1/2. {{TABLE}}

(b) It may be advantageous to reproduce the summary given in Exh. D-2/3, which reads as follows : Karachi Peshawar Karachi Peshawar Dr. Dr. Cr. Cr.

71,173.97 25,442.00 1,80,346.48 68,288.39 Total Debit Total Credit Balance 96,615.97 2,48,634.17 1,52,018.90 Paid amount Dr. 1,20,000.00 32,018.90 {{TABLE}} ' A perusal of the above-quoted summary indicates that only description against the alleged payment of Rs, 1,20,000 is "Paid Amount Dr' . It is an admitted position that the defendants have neither produced any receipt of the deceased nor any cheque pertaining to the above payment.

However, reliance was placed on an entry at page 26 of the ledger Exh. P-1/I in the account of "Usman Azad A/c No, 2" which reads as follows : {{TABLE}} "Month and date Particulars Folio Debit Rs, P.

December 31 HCIC 13 1,20,000.00." {{TABLE}} ' According to the above entry Rs, 1,20,000 was paid by M/s. Hyesons Commercial and Industrial Corporation Ltd. (that is by defendant No, 1 in the suit) on 31st December, 1964 to the deceased.

There is a reference to Folio 13 which refers to page 13 of the Journal Exh. P-1/2. At page 13 of the Journal Exh. P-1/2 there is no corresponding entry to the above debit entry of the ledger of Rs, 1,20,000 in the account of the deceased plaintiff. However, when D. W. 2 Fayaz Mouji was asked by the learned counsel for the plaintiffs in the cross-examination before the Commissioner about the above discrepancy he relied upon the entry at page 13 of the aforesaid Journal marked as Exh.

P.-3/19, which reads as follows :- {{TABLE}} "Month and Particulars Voucher Folio Debit Credit Date 30th December, Expenses incurred ... Wit ...

1964 by HCIC on behalf . of Sun.

Sunderies 2,76,052.10 H1C 50 60 ... 1,76,052.20 Share Corporation amount of various expenses in and by HCIC for daily Anjam. 1,20,000" {{TABLE}} ' According to D. W. 2 Fayaz Mouji, the above sum of Rs, 2,76,052.20 included the aforesaid Rs, 1,20,000 debited in the ledger at page 26 Exh. P-3/2 of Exh. P-1/1. From the above quoted entry from the Journal, it is clear that there is a reference to voucher No, 50, which has not been produced. It is also clear from the above two account books that the alleged payment was made by defendant No,

1. In support of the above entries, the defendants have examined D. W. 2 Fayaz Mouji. It may be pertinent to refer to his statement on the above point, at line No, 2214 be has deposed as follows: "I am shown the account of Exh. P-3/2 of the deceased Muhammad Usman Azad appearing at page 26 of the ledger Exh. P.1/1 and I state that the debit item of Rs, 1,20,000 dated 31st December, 1963 shown in the account Exh. P-3/2 has been posted from the Journal Exh. P-I/2 and has been consolidated with the item of Rs, 2,76,000 shown at page 13 Journal Exh. P-1/2 and already marked as Exh. P-3/19."

At Line No, 2250 the above witness has further deposed as under :- "The debit item of Rs, 1,20,000 dated 31st December 1963 and shown in the account of the deceased Exh. P-3/2 has been paid to the deceased by defendant No, 1, but I do not know whether by cheque of by cash. I had made this entry on the advice that I had received. Since the amount of Rs, 1,20,000 had been paid by defendant No, 1 to the deceased and not by daily Anjam Ltd. To the deceased, the amount was shown in the Journal Exh. P-1/2 of daily Anjam Ltd. I do not remember the date when the amount of Rs, 1,20,000' had been shown in the debit advice received by me as having "been paid by the defendant No, 1 to the deceased. I do not remember the date, when I had received the debit advice regarding the item of Rs, 1,20,000."

' From the above quoted statement of D. W. 2, it is clear that the above witness had nothing to do with the alleged payment of the aforesaid amount of 1,20,000 to the deceased plaintiff. He was unable even to say whether the above amount was paid in cash or through a cheque nor he was able to remember the date. He was also unable to produce the alleged advice received by him.

(c) Even if it is to be held that the above account books Exh. P-1/1 and P-1/2 were regularly kept in the course of business, the above entry would not be sufficient to prove the alleged payment to the deceased plaintiff. In this regard it will be advantageous to refer to section 34 of the Evidence Act, which reads as follows :- "34. Entries in the books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire, but such statement shall not alone be sufficient evidence to, charge any person with liability."

A perusal of the above-quoted section indicates that in order to chargel any person with the liability, an entry in the books of account regularly kept in the course of business is not sufficient but some corroboration is required. In the instant case, the alleged payment was made by Messrs Hyesons Commercial & Industrial Corporation Ltd., the defendant No, 1, no body has appeared on behalf of the said defendant to prove the alleged payment in order to corroborate the above entry.

Even the account books of defendant No, 1 indicating the alleged payment have not been produced. No voucher or charge has been produced. It is highly improbable that the defendants would have paid in cash the above sum without obtaining a receipt from the deceased. Normally, such big payments are made through cross cheques when they are intended to discharge sortie contractual obligation. The above sum was payable to the deceased plaintiff in respect of the various items, viz. News print, the amount advanced by him, etc. And therefore, it was incumbent upon the defendants to secure a proper receipt. A limited company is required to maintain vouchers and receipts for the purpose of audit. It is not understandable as to why no receipt for the aforesaid alleged payment was obtained.

' In this regard it may be pertinent to point out that the deceased plaintiff had served a legal notice dated 30th March, 1964 in respect of the suit claim, which was replied to by the defendants through their Advocate's letter dated 18th April, 1964 and whereby a statement of account showing debit and credit entries was forwarded. It may be observed that according to the learned counsel for the defendants, Exhs. D-2/2 and D-2t3 were sent to the deceased plaintiff. It may be stated that the defendants' aforesaid reply dated 18th April, 1964 was replied to by the deceased plaintiff through his Advocate's letter dated 30th April, 1964 and in para. 7 of the above letter the following averment was made :- ' "That para. Numbered 6 of your letter under reply is denied. The account sent by you is also incorrect and is denied. In particular it is denied that your clients paid a sum of Rs, 1,20,000 to our client. It is significant that the date and mode of payment has not been mentioned in the account sent by you in respect of this item when in respect of all other items the date and mode of payment has been clearly indicated in the account sent by you. You have further sent no accounts whatsoever with respect to Anjam Peshawar and have only made a debit and credit entry with respects to the account of Peshawar. This is to call upon your clients to give full and further particulars of the accounts in these respects. Your clients further have not accounted for 2440 reams news prints valued at Rs, 36,600 taken over by your clients on 30th June, 1963 through Abdullah Shamim, your representative acting for the Managing Director Daily Anjam. The cheque of Rs, 32,018.90 sent by you has been retained by our client without prejudice and in part payment of the claim of our client against your client."

' A persual of the above-quoted para. Shows that at the first opportunity the deceased plaintiff specifically denied the receipt of Rs, 1,20,000 and pointed out to the defendants that neither the date nor the mode of payment was specified in the statement of accounts in respect of the above item. Apparently the above letter was not replied to by the defendants as they have not filed any reply. In view of the above specific denial as far back as in April 1974 it was more incumbent upon the defendants to prove the alleged payment of Rs, 1,20.000 by furnishing corroborative evidence.

D. W. Fayaz does not provide any corroboration to prove the alleged payment of Rs, 1,20,000.

(d) It may also be pertinent to point out that the deceased plaintiff sent a legal notice dated 31st March 1964 addressed to defendants Nos. 3 and 6 pointing out that except for one meeting to be held on 17th September 1963 he had not received any notice for another meeting of the Board of Directors. He also requested for the minutes of the meeting held on 17th September,

193. The contents of the above letter indicate that the deceased plaintiff and the defendants were not on good terms since September 1963 and, therefore, it does not stand to reason that defendant No, I would have paid a sum of Rs, 1,20,000 to the deceased plaintiff without even obtaining a receipt. It may also be mentioned that the learned counsel for the defendants at one stage of the arguments had urged that though the defendants were not obliged to pay any separate consideration for the offices premises discussed hereinabove in para. 6, but probably the aforesaid entry for the payment of Rs, 1,20,000 represented payment for the offices premises, but when his attention was drawn to the fact that the aforesaid amount was adjusted against the deceased plaintiff's entitlement reflected in Exhs. D-2/2 and D-2/3, he did not press the above arguments. But the fact that the above argument was advanced reflects upon the vagueness of the alleged payment.

' I am therefore, constrained to hold that the respondents have failed to prove the payment of the above amount to the deceased plaintiff.

(e) In view of the above discussion on the basis of the defendant's own statement of accounts Exh.

D-2/2 and D-2/3, the plaintiffs are entitled to recover the following amounts :-

(a) Rs, 3380 being the amount unilaterally reduced for the price of the news print discussed hereinabove in para. (5)(a).

' It may be noted that the burden of proof that the above reduction, was justified because of the then prevalent market rates was on the defendants which they have failed to discharge.

(b) Rs, 1,20,000 the payment of which the defendants had failed to establish for the reason mentioned hereinabove. Total :its. 1,23,380

13. (a) The only question which remains to be considered is, whether the decree is to be passed against all or anyone on more of the defendants, It may be observed that in the written statement the defendants have not raised any plea to the effect that the decree cannot be passed against any one or more defendants and therefore, no issue was framed on the above point when 19 issues were adopted. The learned counsel for the parties had also not addressed any argument on the above point. However, by an order dated 7th November, 1979 I asked the learned counsel for the parties to submit their arguments on the above question. It was urged by Afzal Nabi that it was a transaction of outright sale by the deceased plaintiff to the defendants. It was further urged by him that the defendants had not raised any plea to the effect that the decree if any could not be passed against any of the defendants. On the other hand, Mr. Zari has urged that in pursuance of his two applications viz, an application under Order VII, rule 11, C. P. C. (C.M.A. No, 307/67) and an application under Order XIV, rule 2. C. P. C. (C.M.A. No, 349/67) the following additional issue was framed by an order dated 23rd February, 1967:- "Whether the entire suit is based on agreement dated 10th August, 1963 and if so whether the suit is competent in view of the fact that the agreement was before the incorporation of the daily Anjam Ltd." ?

' However, his further submission was that the agreement was enforceable against defendant No, 6 by virtue of sections 23(h) and 27(e) of the Specific Relief Act, and also because it was adopted by defendant No, 6.

(b) Mr. Afzal Nabi in support of his above contention has referred to the deceased plaintiff's legal notice dated 31st March, 1964 at page 679 of the handwritten evidence's file and the defendant's reply dated 18th April, 1964 at page 685 of the aforesaid file and the fact that cheque of Rs, 32,018.90 was given on behalf of the defendants. He has also referred to the various paras of the written statement, particularly paras. 1, 2, 4, 6 and 7 and also the counter-affidavit dated 10th September, sworn by one Abdul Majid Hakim as the general advisor to the defendant and filed to oppose the plaintiffs' injunction application. It is correct that the deceased plaintiff had sent his aforesaid legal notice dated 31st March, 1964 addressed to all the defendants and that the aforesaid reply dated 18th April, 1964 was also on behalf of all the defendants, wherein it was not averred that except M/s. Daily Anjam Ltd., other addressees of the legal notice were not concerned.

1 t is also true that in the written statement, no distinction has been made between defendant No, 6, that is daily Anjam Limited, and the other defendants. On the contrary, the averments indicate that all the defendants had treated the liability as joint. In this regard reference to the following extract from paras. 1, 2, 4, 6 and 8 of the written statement may be pertinent :- "(1) the defendants through their Advocate's letter dated 18th April, 1964 tendered-a cheque No, CAY 869285 dated 15th April, 19E4 for Rs, 32,018.90 to Sh. Usman Azad, the deceased plaintiff, on the explicit condition that the same was in full and final settlement of all claims of the said deceased against the defendants...As the said payment was made in lull satisfaction of all the claims of the deceased against the defendants, the said deceased/plaintiffs have no cause of action against the defendants.

(2) The suit is barred by sections 21 and 56 of the Specific Relief Act, as the plaintiffs' claim in this suit for the recovery of the price of the property sold to the defendants.

(3) that the defendants agreed to pay to Shaikh Usman Azad deceased plaintiff a sum of Rs, 1,00,000.

( 4) the said deceased sold and the defendants 4lid purchase all the business of publishing the "Daily Anjam" at Karachi and Peshawar.........

(5) .The defendants have paid for all these items and have also paid the salaries to the staff and incurred miscellaneous expenses themselves. The defendants maintain regular books of account and have sent a statement of account of the said deceased along with their letter dated 18th April, 1964.

(6) The said deceased accepted the cheque knowing fully well that the cheque was tendered on the specific condition that it was in full and final settlement of all his claim against the defendants:

(7) It is denied that a sum of Rs, 5,32,004.77 is due to the plaintiffs from the defendants: ' The above averments have been reiterated by aforesaid Abdul Majid Hakim, general advisor to the defendants, in his aforesaid counter-affidavit dated 10th September, 1964.

(c) It was urged by the learned counsel for the plaintiffs that in view of the above admission on the part of the defendants, this point cannot be reopened at this stage after the recording of the evidence and after the conclusion of the arguments on merits. On the other hand it has been submitted by Mr. Zari, that in England the law is that a pro-motor's agreement is not enforceable unless the company enters into a fresh agreement or it can be inferred from the conduct of the parties that they entered into a contract and that whereas in Indo-Pak a pro-motors' agreement is enforceable by virtue of the provisions of the afore sections 23(h) and 27(e) of the Specific Relief Act. It may be observed that the above contention of the learned counsel for the defendants was in conflict/inconsistent with the averment contained in the defendant's aforesaid two applications to the effect that the agreement was not enforceable, on the basis of which an additional issue quoted hereinabove was framed. In my view, sections 23(h) and 27(e) of the Specific Relief Act cover the case of a public limited company but private limited companies are outside the ambit of the above provisions, as the words "a public company" have been used and not the words "aG company" or "a public or private limited company" in the above clauses of the aforesaid two sections. In this regard a reference may be made to the case of Dalmia Jain Co. Ltd. v. Kalyanpore Lime Works Ltd. (1), wherein a Division Bench while considering the provision of section 23(g) of the Specific Relief Act was pleaded to hold that the above provision is confined to the case of an amalgamation of public companies. The words "a public company" have been used in section 23(g) as well as-in section 23(h) and, therefore, the above ruling is applicable on all fours to the instant case. Similarly, the words "a public company" have R. Been used in clauses (d) and (e) of section 27, which correspond to the aforesaid clauses (g) and (h) of section 23 and, therefore, it must follow that section 27(e) does not cover a case of a private limited company.

(d) In the instant case, Daily Anjam Ltd., was a private limited company and not a public limited company and therefore, the aforesaid sections 23(h) and 27(e) of the Specific Relief Act cannot be pressed into service. But the above conclusion does not affect the instant (1) AIR 1952 Pat. 393 case as it has not been pleaded by the defendants that the agreement in question was not enforceable. Furthermore, as pointed out hereinabove according to the learned counsel for the defendants the agreement under reference is enforceable though for different reason given by him referred to hereinabove. It was also urged by Mr. Zari on the basis of the minutes of the meeting of the Board of Directors of the defendant No, 6 held on 19th September, 1963 and the evidence of P.

Ws. 1 and 3 that in fact upon the incorporation of the company (1. e. Defendant No, 6) it adopted the agreement. It will suffice to observe that on the basis of the pleadings, it cannot be urged that the above agreement is not enforceable. However, from the pleadings of the defendants, from the conduct of the defendants and from the documents produced including the account books, it is clear that for all intents and purposes defendant No, 1 was acting upon and performing the obligations under the agreement in question notwitstanding the incorporation of Anjam Ltd. As pointed out hereinabove that in the written statement no plea was raised that defendant No, 1 or the other defendants (who were directors) were not liable, on the contrary there is an admission therein to the effect that the defendants had purchased the subject-matter of the suit. The various items were entrusted by the deceased plaintiff to defendant No, 1 on 10th August, 1963 with effect from 1st July, 1963. From the account books, it is clear that in fact defendant No, 1 was managing, running and financing the newspaper in question and defendant No, 6 after its incorporation. In my view defendant No, 1 cannot avoid its liability for the various items entrusted by the deceased plaintiff to it. The question against whom the decree is to be passed apparently has acquired some importance because of the fact that "the Daily Anjam Newspaper" was taken over by the Press Trust more than a decade back and the tenancy rights of the Karachi office premises were surrendered by the defendants on 11th October, 1967, Exh. P/2. It may not be possible for the plaintiffs to recover any amount from defendant No, 6.

(e) It may be pertinent to mention that even if it is to be held that there was a fresh agreement between the deceased plaintiff and defendant No, 6 after its incorporation (though not pleaded by the defendants), in that event as well defendant No, 1 would not be able to escape its liability as in my view the doctrine of "lifting the veil of incorporation" would be attracted to the instant case.

Reference can be made in this regard to the case of Re : F. G. (Films) Ltd. (1) the case of Abbey Malvern Wells Ltd. v. Ministry of Local Government & Planning (2) the case of Gilford Motor Company v. Horne (3) and the case of Malyon v. Plummer (4) : ' Referring to the case reported in (1953) 1 W L R 483 it may be observed that the question before the learned Single Judge of the Chancery Division was whether a firm named "Mansoon" could be registered as a British film. In the above case, the applicant-Company sought to have the film "Mansoon" registered as a British film under the Cinematograph Film Acts, 1938-48 but the Board of Trade refused the application on the ground that the film had in reality been made by a large American company, Film Group Incorporated. The above contention of (1) (1953) 1 W L R 483 (2)

1951' Ch. 728 (3) 1933 Ch. 935 (C A) (4) (1964) 1 Q B 330 the Board of Trade was accepted in the above case as on the evidence, it had come On the record that the American Company had provided the entire finance and that in fact the applicant Company was acting as the nominee or agent for the American company.

(ii) Reverting to the case reported in 1951 Chancery, it may be observed that the founders of a girls' school formed the plaintiff company to acquire the property of the school and transferred all the shares in the company to the trustees of a trust deed, the objects of which were to secure that the school shall henceforth be carried on under the guidance of a body of persons interested in the education of the girls and with a view to promoting solely the educational work and efficiency of the school. In the above case it was held while the company theoretically had the power to apply its property and assets for the purpose of making profits and devoting the resulting profits to the distribution of the dividends among the members, but the body of persons managing the company were not free persons and were subject to the restrictions contained in the trust deed.

(iii) With reference to the case of 1933 Chancery, it may be stated that the first defendant, E.B. Horne had formerly, been employed as the Managing Director of the plaintiff-Company and had covenanted in a written agreement not to solicit, customers of the company after leaving its employment. When his employment was terminated he began to set up his own business, undercutting the plaintiffs prices but after taking legal advice caused instead the formation of a company J. M. Home & Co. Ltd. (the second defendant No, 2) in which his wife and an employee were sole shareholders and directors. This company took over Horne's business and solicited the plaintiff's customers. The plaintiff company filed legal proceedings for injunction which was refused and the suit proceedings were dismissed but the Court of Appeal allowed the appeal and granted injunction notwithstanding that a limited company was carrying on the business.

(iv) Referring to (1964) 1 Q B, it may be observed that in the above case the plaintiff Mrs. Malyon claimed damages for herself and her children under the Fatal Accidents Act, 1846-1959 after the death of her husband in a car accident which was caused by the defendant. Prior to his death Malyon had run from his home a one-man business as saleman and distributor of electrical machinery and he had formed a private company F. P. Malyon Ltd. For the purpose of this business.

He had 999 of the 1000, g 1 shares in the company and the remaining share was vested in his wife.

For tax purposes, the husband and wife were shown in the company's books as employees of the Company (working as a full time and part time basis respectively) and were paid whole of its profits each year in the form of salaries, wife being allocated L800 ( 668 after tax). The salaries of both husband and wife were invariably paid without any differentiation into the husband's bank account and from this account drawings were made to meet the family expenditure. The defendants claimed a sum of 17,875 on the basis of the annual sum taken by the husband and wife from the aforesaid company. The trial Court awarded the defendants the aforesaid sum disregarding the existence of the company and the salary, it had paid to the wife and treating the whole of the family expenditure as earned by the husband. The above judgment was upheld by the Court of Appeal but it reduced the amount of damages to 15,275 on the ground that some account should have taken of the value of the wife's services, although not to the full extent of 800 per name shown in the book.

( f ) In the above cases referred to in para. 13(e), the doctrine of "Lifting the veil of incorporation" was pressed into service and the existence of the companies was disregarded in order to ascertain the real nature of the transaction for determining the points in issue. In my view in a fit case a Court is competent to ignore the existence of a company, in other words to lift the veil of incorporation with the view to ascertain the real nature of the transaction in issue/dispute in order to dispense, complete justice.

14. In view of the above discussion, my finding on the above recasted one issue quoted hereinabove in para. 3(b), is that the plaintiffs are entitled to recover Rs, 1,23,380. I accordingly pass a decree for a sum of Rs, 1;23,380 as detailed in para. 12(e) hereinabove, with 6% simple interest thereon from the date of the suit till payment and proportionate costs against defendants Nos. 1 and 6, but I do not see any justification to pass any decree against defendants Nos. 2 to 5, who were merely directors inter alia of defendant No, 1. accordingly.