' CH. MUHAMMAD YOUNIS, J.--- Briefly stated the facts relevant for the disposal of the instant Regular Second Appeal are that the respondent No,1 filed a suit for recovery of Rs,20,00,000/- along with profit at bank rate. The respondent No,1 had cordial relations with the appellant who was carrying out his own business. The respondent No,2 Muhammad Afzal Khan was a well wisher of the appellant. The appellant proposed that the respondent No,1 should carry out business so as to earn benefit therefrom. Ultimately after negotiations between the parties the appellant undertook to supply 134 refrigerators valuing Rs,21,44,000/- within two months. Accordingly the respondent No,1 made payment of RS.3,00,000/- in cash and two Cheques dated 14-1-2004 and 9-2-2004 valuing Rs,10,00,000/- and Rs,7,00,000/- respectively were given to the appellant and the respondent No,2.
In spite of payment of Rs,20,00,000/- under the oral contract and undertaking the appellant failed to supply the refrigerators to the respondent No,1 . So he was constrained to file the suit for recovery.
2. The appellant and the respondent No,2 resisted the suit and submitted their written statements separately. According to the appellant the respondent No,1 was a habitual litigant and in spite of having received 94 items he had not paid the remaining amount. The appellant has vehemently opposed the suit. However he admitted to have received two Cheques of Rs,17,00,000/- in January, 2004 but he denied to have received Rs,3,00,000/- in cash. Out of the pleadings of the parties the following issues were framed:---
(1) Whether the plaintiff is entitled to decree for recovery of Rs,20,00,000/- along with scheduled bank profit on the grounds mentioned in the plaint? OPP
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is liable to be dismissed under Order VII, Rule 11, C . P.0 . ? OPD
(4) Whether suit is false, frivolous hence the defendants are entitled the special costs under section 35-A, C.P.C.?
(4-A) Whether the defendant No,1 has received the amount of Rs,1700,000/- after delivery of 94 items of Fridges to the plaintiff? OPD No, 1 (4-B) Whether the plaintiff had paid Rs,300,000/- in cash as earnest money to the defendant No,1 under the contract of sale earlier to the payment of Rs,1700,000/-? OPP.
(5) Relief.
3. After recording the evidence the learned trial Court proceeded to decree the suit of the respondent No,1 against the appellant and the respondent No,2. Feeling aggrieved of the judgment and decree of the trial Court dated 20-4-2010 an appeal was preferred by the appellant but the same was partly accepted only to the extent of excluding the amount of Rs,3,00,000/- from the decretal amount. However the decree was maintained to the extent of Rs,17,00,000/- vide impugned judgment and decree dated 1-4-2011.
4. Feeling aggrieved of the judgment and decree .Passed by the learned first appellate Court this Regular Second Appeal has been preferred on the grounds that the learned first appellate Court failed to decide Issue No,2 regarding the maintainability of the suit in its present form as well as the findings on Issue No,4-A are result of misreading and non-reading of evidence; that the decree passed by the learned Additional District Judge/first appellate Court is contrary to law and usage having the force of law and that the appellate Court failed to determine some material issues of law; that the decree of the appellate Court suffers from substantial error, defect of procedure and that the learned appellate Court failed to consider some important admissions made by the learned counsel for the respondent No,1 while cross-examining the D.W.3.
5. The learned counsel for the appellant enumerating the grounds of appeal contends that both the Courts below did not draw their findings from the evidence on the record. It has also not been clarified as to who of the two defendants was liable to pay the decretal amount and that the findings were given by the appellate Court illegally without taking into consideration the pleadings of the parties and the contention raised in the written statement. The learned counsel goes on to submit that the material evidence of D.Ws. Was not considered and the appellate Court did not examine the contents of the judgment and decree of the learned Civil. Judge which are at variance and contradictory to each other. So the impugned judgments and decrees are liable to be set aside. The learned counsel further contends that cross-examination was not made on some material points narrated by the D.Ws. So to that extent the statement of the D.Ws. Would be deemed to have been accepted. In support of his arguments the learned counsel for the appellant has referred to 1994 PCr.LJ 20 (Hidayatullah and 7 others v. The State and others), 1994 CLC 1774 (Lahore). (Mst. Rasul Bibi v. Nasrullah Khan), PLD 2004 Karachi 17 (Abdul Hameed Khan v. Mrs. Saeeda Khalid Kamal Khan and others), 2001 SCMR 1700 (Muhammad Akhtar v. Mst. Manna and 3 others), 1992 SCMR 305 (Ejaz Mehmood alias Nanna v. The State), 1992 SCMR 1983 (Ch. Muhammad Yagoob and others v. The State and others), 1994 PCr.LJ. 20 (Hidayatullah and 7 others v. The State and others) and 1970 .SCMR 200 (Ghulam Mohayyuddin and another v. Sher Khan and 4 others).
6. On the other hand the learned counsel for the respondent No,1 has vehemently opposed the appeal. However the respondent No,2 did not turn up and was proceeded against ex parte. The learned counsel for the respondent No,1 defended the findings of the learned appellate Court as well as the trial Court. He pointed out some material contradictions in the statement of DWs. The learned counsel referred to the contention of the appellant in the written statement according to which the 'Jirga' was convened in March, 2003 but while cross-examining P.W.1 it was suggested by the learned counsel for the appellant that the 'Jirga' was held in March, 2004. Similarly the D.W.4 stated that 'Jirga' was held in November-December, 2006. D.W.1 stated that 'Jirga' was held after submission of written statement. The written statement was admittedly submitted on 12-3-2005 by the appellant. The learned counsel contends that inconsistent pleas have been taken by the appellant at different occasions. The D. Ws. Were examined on various dates and they have been making improvements as and when required. The learned counsel referred to the statement of the D.W.2 who claimed to have delivered 94 refrigerators in February, 2004 whereas the contention of the appellant was that 54 refrigerators were supplied from Jhelum and 40 were supplied from Rawalpindi. There was no document on the record to support the contention of the appellant that any refrigerators were provided as per agreement. The learned counsel also pointed out material contradictions regarding the delivery and its time as mentioned by D.W.2 and D. W .
3. The learned counsel maintained that the witnesses produced by the appellant were interested ones and could not be believed. So he prayed for dismissal of appeal.
7. I have considered the arguments advanced from both the sides and have perused the record.
8. In the instant appeal some facts are admitted between the parties. It is proved on the record that the appellant had to supply 134 refrigerators valuing Rs,21,44,000/- to the respondent No,1 and price of each refrigerator was fixed as Rs,16,900/-. There is also no denial of the ' fact on the record that the appellant issued two Cheques for Rs,10,00,000/- and seven Rs,7,00,000/- dated 14-1-2004 and 9-2-2004 respectively. It is also established on the record that the said Cheques were got encashed by the appellant. So the only controversy remains to be resolved was as to whether 94 refrigerators had been delivered as per agreement to the respondent No,1 against the consideration received by him or not. The respondent No,1 while appearing as P.W.1 in the witness box narrated all the facts in line with his plaint. In view of his categorical denial the onus heavily lay on the appellant to prove the delivery of 94 refrigerators to the respondent No,
1. Admittedly no receipt or documentary evidence has been produced by the appellant to prove the delivery of refrigerators to the respondent No,
1. The D.Ws. Produced by the appellant in support of his contention have made contradictory statements. The learned appellate Court has taken notice of the same and pointed out the said contradictions. This Court cannot dwell upon the findings of facts. Both the Courts below after correct appraisal of the evidence have drawn the right conclusion that the appellant failed to prove the delivery of the refrigerators to the respondent No,1 in spite of the fact that he had received the amount of Rs,17 00,000/- through aforementioned Cheques. The appellate Court was of the view that the receipt of Rs,3,00,000/- in cash could not be proved through any documentary evidence so the decree of the trial Court was modified reducing the decretal amount from Rs,20,00,000/- to Rs,17,00,000/-. In order to put an end to the litigation the respondent No,1 has not filed any appeal regarding the said amount of Rs,3,00,000/- and he accepted the decree passed by the first appellate Court. So to the extent of Rs,17,00,000/- there are concurrent findings of both the Courts below. Admittedly the scope of Second Appeal under section 100, C.P.C. Before this Court is quite limited and it could only be filed on the following three grounds:---
(a) The decision being contrary to law or usage having the force of law.
(b) The decision having failed to determine some material issue of law or usage having force of law.
(c) Substantial error or defect in procedure provided by this Court or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merits.
9. Section 101, C.P.C. Bars the Second Appeal on any other ground. So there is no cavil to the proposition that the second appeal does not lie on a question of fact and the High Court is bound by the findings on a question of fact arrived at by the lower Court. Since the findings of fact are supported by the evidence on the record in the present case so the same cannot be questioned before this Court. The learned counsel for the appellant has not been able to point out any substantial error or defect in the procedure. As regards the findings on Issue No,2 the learned counsel for the appellant failed to substantiate his objection. In respect of the form of the suit the findings on this Issue No,2 are not exceptional as a suit for recovery was maintainable. The learned trial Court as well as the learned appellate Court has pointed, out some material discrepancies and contradictions in the evidence produced by the appellant which shattered the veracity of the D.Ws. The appellant B failed to produce any receipt or other document to establish the delivery of 94 refrigerators to the respondent No,
1. As regards the question of ambiguity regarding the decree it appears from the decree sheet that the suit was decreed against the appellant as well as the respondent No,2 (who never assailed the decree).
10. As regards the case-law referred to above it would suffice to say that each and every case has to be decided on its own merits and there is absolutely no cavil to the proposition that the principles laid down by the superior Courts have to be followed in letter and spirit in the light of the facts and circumstances of each case. The contradictions on material points in the testimony of witnesses cannot be ignored altogether merely by saying that the same were result of the slip of tongue because in that eventuality the evidence would have to be discarded and could not be formed basis of decision.
11. In the light of the above discussion the impugned judgments and decrees passed by the learned trial Court as well as the learned appellate Court to the extent of the claim of the respondent No,1 for Rs,17,00,000/- suffer from no legal infirmity or illegality and none of the grounds mentioned in section 100, C.P.C. Is available to the appellant to challenge the impugned decree and judgment passed by the appellate Court. So this appeal is hereby dismissed.
Second .