' SHAHID ANWAR BAJWA, J.- Facts giving rise to this Second Appeal are that Suzuki Margalla Car 1996 Model bearing No, AC A 766 was leased by respondent No,2 to "Gulf Garments". Respondent No, 1 filed a suit before the First Senior Civil Judge, Karachi, West with the following prayers "(a) Declaration that plaintiff is entitled to the legal transfer of the Car bearing Registration No, AC A 766 Suzuki Margalla 1996 Mode having purchased the same from defendant No,l against consideration in adjustment of plaintiffs legal charges payable by the defendant No,l in connection with development of defendant No,2's factory known as "Gulf Garments" Bahrain:
(b) Mandatory injunction directing the defendants Nos.l and 2 to ensure and transfer car bearing Registration No,ACA'66 Suzuki Margalla Modei 1996 in the name of the plaintiff or his nominee and or direct the defendant No,l to obtain clearance from the defendant No,2 of all the dues of the defendant No,2 in respect of the above described car; and also pay Rs,4000 to the plaintiff. "
2. It was claimed by respondent No,l in his plaint that he deals with development of websites etc. In August 1999 the present petitioner visited office of respondent No,l and asked him to develop some software for his factory known as "Gulf Garments" situated at Baharin. According to the plaint he developed the software. The appellant did not pay charges for the work done and finally, according to the plaint, appellant ofitred to partially settle the dues by sale of one of his car. According to the plaint the appellant agreed to sell him car ACA 766 for a sum of Rs,4,00,000 to be adjusted against liabilities of present appellant leaving a balance of Rs,40,000 which according to the plaint, the appellant promised to pay in due course. It was case of the plaintiff that car was handed over to him by the defendant/ appellant. Subsequently plaintiff stated that it was discovered that the car was taken on lease from M/s. Crescent Leasing Corporation Ltd. And therefore, it could not be transferred to him. The plaintiff further averred that the defendant continued to pay leasing charges till all the charges in respect of car were duly paid. Upon refusal of the appellant, respondent No,l filed the suit with the prayer quoted above. The suit was contested and written statement was filed by the present appellant and the present appellant stated that he is not owner of Gulf Garments and that the plaintiff might have development software for Gulf Garments.
However, it was stated in the written statement that evidence regarding completion of website is bogus. It was specifically denied that the present appellant made any proposal to plaintiff to settle the dues by selling him the car. However, it was admitted that the defendant was paying rental charges for the car. It was further averred in the written statement that the plaintiff with criminal intent requested him to lend one of company's car as he needed the same for making arrangements for his sister's birthday. It was on such a rise that the car was handed over to the plaintiff which car the plaintiff refused to return. Sale of car and all the claims were specifically denied. Evidence were recorded and after recording of evidence suit was decreed vide order dated 31-3-2003. Being aggrieved by the order of the trial Court Civil Appeal No, 141 of 2003 was filed which appeal was dismissed vide judgment dated 28-2-2005. Being aggrieved by the order the present IInd Appeal has been filed.
3. Learned counsel for the appellant made the following submissions:-
(1) Learned counsel referred to prayer Clause (a) to contend that the claim, of the respondent No,l was against "Gulf Garments" Gulf Garments is not a party to the proceedings.
(2) That in Para 22 of the plaint it was stated that value of the suit for the purpose of court-fee for declaration etc. Is Rs,200 and for recovery of Rs,40,000 value was stated to be Rs,40,000. The learned counsel referred to page 103 where it was stated that the plaintiff had agreed to purchase the car for 400,000. The learned counsel submitted that no court fee has been paid on the suit accordingly.
(3) The plaintiff in his cross- examination stated that there was agreement between him and the present appellant. He stated that he cannot produce such an agreement. It was again stated by the plaintiff in his cross-examination that there was agreement between him and principal of present appellant. Again he failed to produce any such agreement. Thirdly he stated in the cross- examination that except annexure 'B' there is no agreement. Thereafter learned counsel referred to the said annexure 'B' to contend that it did not constitute an agreement.
(4) The plaint was signed by Sohail Ahmed Sheikh claiming to be Proprietor AXACT CYBER SOLUTIONS. Mr. Sohail Ahmed Shaikh did not appear as a witness and in his place one Mr. Shoaib Ahmed Shaikh appeared as witness who claimed himself to be sole proprietor of the said Axact Cyber Solutions. Learned counsel contended that if the signatory of pleadings does not appear as witness, pleadings cannot be taken as evidence.
(5) It has never been shown that the appellant was owner of the vehicle in question. Only an owner can transfer the vehicle. As far as the vehicle is concerned, the appellant was third party and therefore, could not in any case transfer the vehicle. The appellant stated that he argued his case based on provisions of section 2(7) of Sale of Goods Act and none of the Courts below has discussed it and this was clear violation of Order XX Rule 5 C.P.C.
(6) Lastly learned counsel submitted that for contract to be valid there must be offer and acceptance. Documents at Pages 115-117 do not constitute a contract. Learned counsel relied upon PLD 2003 SC 410 to contend that if a document is not tendered in evidence it cannot be relied upon.
Learned counsel further relied upon 1986 MLD 1286 to contend that no decree can be passed on vague evidence. Lastly the learned counsel relying on 1991 MLD 437 contended that if court-fee is not paid the suit must be dismissed.
4. On the other hand, learned counsel for the respondent No,l madeflje following submissions: -
(1) It is not a suit for recovery of car because the car is already in possession of the present respondent No,l but was a suit only for declaration that plaintiff is entitled to legal transfer of car.
(2) Learned counsel pointed out pages 115 and 117 enclosed by the appellant with the memo of appeal which according to the appellant did not constitute an agreement and pointed out that at page 115 the figure $ of 4000 and other notation were there which have been erased by the appellant and same was the position on 117. Learned counsel pointed out pages 19-21 of R&Ps in this regard.
(3) The appellant handed over the vehicle to the respondent No,l and at, different times he had given different explanations at one place he states that the car was stolen from him another place he stated that respondent No,l was given the car because he stated that he needed it for his sister's weeding.
(4) Documents at pages 115-117 constitute valid contract.
(5) When it was not in the knowledge of respondent No,l that Gulf Garments is not property of appellant because it has been appellant who has been dealing with the respondent all along, how could appellant make any claim against the said Gulf Garments.
(6) If as alleged by the appellant respondent No, 1 has illegally taken away the car from his custody at least the appellant or Gulf Garments should have taken some steps for recovery of the car.
(7) Learned counsel strenuously contended that the appeal is time barred because order by the appellant Court was passed on 28-2-2005 and court-fee was deposited on 1-4-2005. The appellant should have deposited it in time. In this regard learned counsel for respondent relied upon PLD 1984 SC 208 and 1980 SCMR 36.
(8) Regarding the scope of scrutiny under section 100 C.P.C. Learned counsel relied upon 2008 SCMR 190, 1996 SCMR 137, PLJ 1996 SC 1128(sic), 2005 YLR 2003, and PLD 1955 FC 38. On the question that there was a valid contract he relied upon PLD 1981 Karachi 170 and 2001 CLC 104. In respect of valuation of suit learned counsel relied upon 2007 CLC 36, PLD 2006 Karachi 155 and PLD 2006 Karachi 523.
5. Learned counsel for respondent No,2, the leasing company stated that all his charges have been paid and he is not interested as to which way the appeal is decided.
6. Exercising his right of reply the learned counsel relied on sections 4 and 7 of the Sale of Goods Act, and contended that delivery by an unauthorized person is not a delivery in the eyes of law.
Lastly the learned counsel contended that his brother was a separate legal person and the petitioner should have impleaded him as a party.
7. I have considered contentions of the learned counsel for the parties and have also gone through the record and the case law cited by the learned counsel. Regarding scope of second appeal under section 100 of the C.P.C, some very weighty observations were made by the Federal Court in Abdul Majid and others v. Khalil Ahmed, PLD 1955 Federal Court 38 (as before promulgation of the Constitution of 1956, apex Court in Pakistan was called Federal Court) in the following words:- "It is obvious that what the learned Judges intended to say was that for the reasons stated by them the Courts below should not have accepted the evidence which they did and they seem to have assumed that a fallacious method of approaching the evidence is, in second appeal, a good ground for upsetting a finding of fact based on such evidence. With great respect, I am unable to agree with the view, because a fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. I had the occasion to examine this question recently in the Lahore High Court in Nadir Shah v. Lai Shah and others PLD 1954 Lah. 447 where referring to the leading authorities of the Privy Council on this subject I held that the High Court has no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact however gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. I adhere to that opinion which was based on the Privy Council decisions in Durga Chowdhrani v. Jewahir Singh Chowdhri (2) and Wali Muhammad v.
Muhammad Bakhsh (3) which lay down this proposition in clear and unmistakable terms."
8. The Supreme Court of Pakistan in Abdul Rashid v. Mst. Bashiran and others PLJ 1996 SC 1128(sic) reiterated the above principles in the following words:- "6. Again we are inclined to agree with the proposition raised on behalf of the appellant that from the perusal of the grounds mentioned in section I0O of Civil Procedure Code. 1908, a second appeal does not lie on the ground of an error on question of fact. It only lies on the ground of error of law, or, an error in the procedure which may have affected the decision of the casg upon the merits. In the case of Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) this Court had specified the following grounds on which a second appeal is permissible under section I0O:-
(i) The decision being contrary to law.
(ii) The decision being contrary to usage having force of law.
(iii) Failure to determine some material issue of law.
(iv) Substantial error or defect in the procedure provided by the Code or by any other law for the time being in force which may possibly have produced an error or defect in the decision of the case upon merits."
9. It is in the light of the above principles that we have to see and scrutinize two concurrent judgments of the Courts below. This Court can travel no further.
10. The first contention of the learned counsel that the claim of the respondent was against Gulf Garments need not be gone into as findings on this issue is neither decision contrary to law or contrary to usage or failure to determine some material issue of law or substantial error or defect in the procedure. Same would be the position on question where there was a valid contract or not.
It pertains only and purely to appreciation of evidence.
11. Learned counsel laid a lot emphasis on question of court-fee. His contention was that since a subject matter of litigation was car which the plaintiff himself stated to be for Rs,400,000 he is liable to pay court-fee on that basis. In reply of learned counsel for the respondent No,1 stated that he has not filed suit for recovery of car because car was his possession. He has filed suit only for declaration that he is entitled to legal transfer of the car. His submission is that it is not a suit for ownership: it is only for legal declaration.
12. This was not a suit for transfer of any movable property. The property was already in possession of plaintiff. Suit was filed only for a declaration that the plaintiff is entitled to legal transfer of the car. Value of suit given by the plaintiff in case of suit for declaration has to be determined on the basis of statement in the plaint relating to conferring of pecuniary jurisdiction on the trial Court as well as the appellate Court. If any authority is needed it is PLD 1985 SC 393.
13. The respondent No,1 very strenuously argued question of limitation. It was his contention that the suit was hopelessly barred by limitation. Before setting down his contention the dates may be stated and they are as follows:-- Date of Judgment 28-2-2005 Date of application for Certified Copy.3-3-2005 Fee estimated on 1-4-2005 Fee deposited on 1-4-2005 Copy delivery on 4-4-2005.
14. It was contention of the learned counsel for the respondent No,1 that after filing the application petitioner should have kept following up with the copying branch. I am afraid I cannot subscribe to this contention of the learned counsel at least in this case. When copying branch has itself estimated fee on 1-4-2005 how can the respondent No,1 be required to deposit the court-fee stamp even before fee was estimated by the copying branch. Had there been a gap between the date fee was estimated and the date it was deposited time between estimation and deposit would not be taken into reckoning for exclusion. But that is not the situation here. Therefore, the appeal has been rightly filed in time because the appellant is entitled to exclusion of the period from 3-3- 2005 to 4-4-2005.
15. As far as, contention of the learned counsel that there was no valid contract are concerned, reply of the counsel for the respondent was that documents at pages 115 and 117 constitute a valid contract. The Advocate of the respondent pointed the same document though stated to be document available on pages 19-20 of the record and proceedings have been materially altered as certain amount and notations thereon have been erased. This is a question relating to appreciation of evidence and the two Court below have appreciated the evidence on this point and decreed the suit. I do not think that while hearing appeal under section 100 C.P.C. I can or should embark upon reappraisal of the evidence and to take another view.
16. Learned counsel invited attention to page 73 of the R & Ps. This is a letter written by Bright Wear to Crescent Leasing Corporation and says that car ACA 766 has been taken away by Mr. Shoaib.
The letter goes on to say that vehicle is in the name of Messrs Crescent Leasing Corporation (present respondent No,2), and the said corporation was requested to take necessary legal action.
The learned counsel for the respondent No,2, i.e, Crescent Leasing Corporation in his arguments clearly stated that they have no interest as to which way the appeal is decided as their charges have been paid. Thus owner of the vehicle has no objection to transfer of the vehicle. In this view of the matter objection of the learned counsel that only a owner of vehicle can transfer the property in question and is competent to contract loses its significance because owners, Crescent Leasing Corporation have clearly stated that they have no objection to decision either way of this appeal.
I therefore, find no merits in this appeal and the same is therefore dismissed B with costs.