1. ' ARSHAD NOOR KHAN, J---The plaintiff has filed suit for rendition of accounts and recovery of Rs, 60,64,288.
2. ' The facts, as stated in the plaint, are that the plaintiff was working in Karachi Stock Exchange (`KSE') since 1987 with the defendant as an employee and thereafter the defendant appointed him as his agent on the basis of 50% commission on all the business procured by him through sale and purchase of shares of various companies at KSE. The defendant is a member of KSE and is carrying on the business of stock broker. The plaintiff worked with the defendant throughout the period since 1987 till filing of the suit as employee as well as an agent and.Through his efforts and hard work, the plaintiff generated tremendous amount of business by introducing various parties to the defendant, through which the defendant had received considerable amount of business and earnings, which is evident from the ledger books maintained by the defendant for the said purpose. The parties developed mutual trust and understanding. Moreover, it was customary in the business of stock exchange that on sale and purchase of stocks and shares most of the payments are made in cash, hence the plaintiff had also followed the same customary way of payments to the defendant and according to the calculations made by the plaintiff, the amount paid to the defendant comes to Rs, 15,30,000 the details of which have been given by the plaintiff in the plaint.
3. The plaintiff procured the said business for the defendant and commission amount accrued to the plaintiff against the defendant is approximately Rs, 4,65,000. The plaintiff had paid to one Aziz Aqa for the loss claimed by him from the defendant and according to the instructions of the defendant the plaintiff had to pay Rs,19,000 to the said claimant on behalf of the defendant. Further an amount of Rs, 45,000 is still outstanding against the defendant from the accounts of partnership which the defendant has been maintaining. However, the defendant had been making some incorrect entries in the recording of the accounts and the mistakes are apparent on the face of the record maintained by him. Accordingly, the plaintiff claimed Rs,74,000 from the defendant in this respect. It is further stated in the plaint that the plaintiff had requested to the defendant to make corrections in the account books, but the defendant became deaf ear. However, if the mistakes pointed out by the plaintiff regarding the cash payment had been credited the balance of the account would show the credit amounting to Rs,11,81,903 the details of which have been mentioned by the plaintiff in the plaint. It is further stated in the plaint that the plaintiff demanded his commission as well as the amount paid by him to the various parties on behalf of the defendant from him, but he threatened him with dire consequences and did not pay the said dues. The defendant also stopped the relationship in between them from the month of March, 1992. The defendant in spite of settlement of accounts sent legal notice through his counsel on 1-9-1992, a telegraphic urgent message claiming Rs, 25,26,172 from the plaintiff wherein the plaintiff was also threatened for criminal prosecution. The plaintiff immediately replied the said telegraphic notice and denied all the allegations and charges levelled in the said notice. Thereafter the plaintiff also served a legal notice on the defendant as well as claim of damages claiming an amount of Rs,50,46,288 in the said notice from the defendant. The defendant, to defeat the claim of the plaintiff, lodged F.I.R. Under sections 406/420, P.P.C. Against him, stating therein false and fallacious allegations as well as claim of Rs,25,46,002, which was contrary to the legal notice sent by the defendant to the plaintiff. The plaintiff was arrested by the police on the false complaint of the defendant, therefore, the plaintiff filed the present suit.
4. ' A notice of the suit was served on the defendant, who appeared and filed written, statement. In his written statement, the defendant has admitted the employment of the plaintiff with him since 1987 and has also admitted that he was permitted to work as commission agent for the defendant at 50% of admissible commission on the business procured by him. However from March, 1991, the plaintiff acted in the capacity of agent only on the aforementioned terms. The defendant further alleged misappropriation of the plaintiff, therefore, his relationship has been terminated. He also stated about service of notice upon the plaintiff, lodging of the F.I.R. Against the plaintiff and has further stated that he was arrested in that case and remained in custody for sufficient time. He has denied all the outstanding amounts and damages claimed by the plaintiff in this suit.
5. ' On the pleadings of the parties the following issues were framed:--
(1) Whether the plaintiff worked in dual capacity as employee and commission agent with the defendant ? If so, then on what terms and for which period ?
(2) Whether the plaintiff has not been paid his commission when earned ?
(3) Whether the plaintiff enjoyed the authority to act and deal as partner and trade decision on his own in the administrative matter of defendant's business ?
(4) Whether the plaintiff is withholding plaintiff's money and committed embezzlement and misappropriation ?
(5) What should the decree be?
6. ' After framing the issues the plaintiff filed his affidavit-in-evidence and has produced numerous documents in favour of his claim. He was not cross-examined by the defendant and the side of the plaintiff was closed vide order of this Court dated 15-8-2003.
7. ' The matter was thereafter fixed for the evidence of the defendant, but the defendant and his counsel remained absent without any intimation, as such repeated intimation notices were issued to him, who avoided to receive the same, as such a copy of the said notice was pasted on the outer door of the office where he is running the business, but he did not respond, therefore, the side of the defendant was closed vide order of this Court dated 29-9-2003. Thereafter the matter was posted for arguments. The defendant again opted to remain absent, as such the intimation notices were again repeated on him, but as usual he avoided to receive the intimation notice, as such vide order of this Court dated 29-4-2008, it was observed that the defendant avoided to receive the intimation notice and the notice was already pasted on the outer door of his office, therefore, no further notice was ordered to be issued for service on him.
8. ' I have, therefore, heard the learned counsel for the plaintiff, who vehemently contended that the claim of the plaintiff remained unrebutted by the defendant, who did not lead any evidence, as such there is nothing on record to controvert the claim of the plaintiff, as such sufficient evidence is available on record in support of the case of the plaintiff, as such the suit may kindly be decreed.
9. ' I have considered the arguments advanced on behalf of the plaintiff and have gone through the entire evidence available on record. It will be appropriate to consider the contentions advanced by the learned counsel for the plaintiff in the context of issues framed hereinabove.
10. ' My findings on the above issues are, therefore, as under:--- ISSUES NOS 1 TO 4: ' Since all the issues are interlinked with each other and evidence is also common, as such I propose to decide all these issues simultaneously. The plaintiff has claimed that initially he was employed by the defendant as his employee and thereafter he was appointed as agent on the basis of 50% commission on all sort of the business procured by him. The defendant in his written statement has not denied the assertions of the plaintiff and has admitted that the plaintiff was appointed as commission agent at 50% of admissible commission on the business procured by him. It is, therefore, an admitted position that the plaintiff worked with the defendant since 1987 till March, 1991. The plaintiff in his evidence has also supported the allegations contained in the plaint and liabilities against the defendant which remained undisputed by the defendant in his cross- examination as the defendant chose to remain absent, as such there is nothing on record to use against the plaintiff as evidence to negate his claim. It is settled principle of law that the evidence led by the party, if not challenged in cross-examination, will be deemed that the opposite party has admitted the said piece of evidence. In the present case the affidavit-in-evidence coupled with the series of the documents produced by the plaintiff remained undisputed and unchallenged, as such the evidence of the plaintiff could not be brushed aside. The evidence of the plaintiff shows that the averments made by him in his plaint have been fully and substantially corroborated by him. There is, therefore, nothing on record as evidence to refute the claim of the plaintiff. In absence of any evidence, contrary to the evidence of the plaintiff, the evidence of the plaintiff, the evidence of the plaintiff carries much weight. On all the issues sufficient evidence is available on record to answer them in affirmative. Issues Nos. 1 to 3 are, therefore, answered in affirmative, whereas no evidence is available on record to substantiate the claim put forward by the defendant regarding withholding of any money by the piainifff by way of embezzlement and misappropriation, therefore issue No, 4 is answered in negative.
11. ISSUE No,5: ' Since the claim of the plaintiff has gone unrebutted and no evidence reflecting on his claim is available on record, as such the plaintiff is entitled for a decree in his favour.
12. ' Accordingly, the preliminary decree is hereby passed against the defendant. Nazir is, therefore, directed to obtain the necessary details of accounts in support of the claim of the plaintiff and will submit his report about the exact claim of the plaintiff, on the basis of which the final decree shall follow. The cost of the suit will abide the final event.
13. Preliminary decree passed.