' This is a suit for the recovery of Rs. 37,958.24, the break-up of which is Rs. 30,986.32 being the balance of the price of the iron pipes allegedly supplied to the defendants and Rs. 6,971.92 being the amount of interest for the period commencing from 6th July, 1967 up to the date of the filing of the suit. The brief facts leading to the filing of the above suit are that the plaintiff-Company was a public limited Company, which was operating under the name of "Model Steel Mills Ltd." till the time of its take over by the Government of Pakistan, upon the nationalisation in 1972, when its name was changed into "Pioneer Steel Mills Ltd." It has been averred that the plaintiffs are doing business inter alia of manufacturing and selling iron pipes and that defendant No. 2 is the proprietor or a partner of defendant No. 1 and that during or about May, June and July, 1967, the defendants obtained from the plaintiffs supplies of iron pipes and off and on made payments on account towards the said supplies. It has been further averred that on taking accounts of the said supplies made by the plaintiffs to the defendants, it was found that a sum of Rs. 30,986.32 was due and payable by the defendants to the plaintiffs. (A statement of account has been enclosed to the plaint and is marked A). It has also been averred that the plaintiffs demanded the aforesaid balance amount but the defendants failed and neglected to pay the same. It has been further averred that the plaintiffs sent a legal notice dated 16th October, 1969 demanding the payment of the above amount, which defendant No. 1 refused to accept and, thereafter, a telegram dated 27th October, 1969 was sent, of which no reply was received. On the basis of the above averments the plaintiffs have claimed the above amount.
2. Defendant No. 1 was served by publication on or about 13th October, 1970 and as nobody had put in any appearance on their behalf an ex parte order was passed against them on 13th September, 1971.
' However, defendant No. 2 filed his written statement, wherein it has been averred that several allegations and statements contained in the plaint except those expressly admitted are denied and that the plaintiffs are put to strict proof there2f. It has been further averred that the suit is wholly false and it has been cooked up. Which is in order to blackmail the answering defendant and to ventilate private grievance. It has been further averred that Mohammad Abdullah promoter director (who runs the whole show of the plaintiffs), and the answering defendants are related through matrimonial alliance i. e. His son has been married to the daughter of said Abdullah and that the differences have arisen in the family and that the two are not on visiting terms for sometime past and that the suit has been engineered in order to blackmail and compel this answering defendant to be subdued and bring down his son to be dictated by his father-in-law in all possible was. It has been further averred that the answering defendant had never any dealing or relationship with the plaintiff concern and that neither were any goods or pipes supplied or delivered to the answering defendant for trade or any other purposes, either in May, June or July 1967 or at any other time and that the answering defendant is not and was not proprietor or partner in defendant No. 1 nor he had any interest in it. It has also been averred that the address of the first defendant is mischievously given as 99, Motandas Market, Liaqat Bazar, Karachi and that the plaintiff has hit upon this address as the answering defendant is carrying on the business there and it is intended to introduce suspicion. On the basis of the above averments in the written statement the defendant No. 2 has denied his liability.
3. On 1st November, 1971 the following consent issues were adopted : "(1) Was the defendant No. 2 a proprietor or partner of defendant No. 1 ?
(2)Whether the plaintiffs supplied iron pipes to the defendants in May, June and July 1967 ?
(3)Whether the plaintiffs are entitled to recover from the defendants Rs. 30,986.32 or any other sum ?
(4)Whether the plaintiffs are entitled to recover from the defendants Rs. 6,971.92 or any other sum as interest ?
(5)Is the defendant No. 2 entitled to compensatory costs ?
(6)What should the decree be ?
My finding on the above issues are as follows :-
4. (a) Issue No. 1.-The basic question in the instant case is as to whether defendant No. 2 is the proprietor or a partner of defendant No.
1. It is an admitted position that in the entire documentary evidence which has been filed by the plaintiffs, there is no document containing defendant No, 2's signature or containing any admission to the effect that either he was running defendant No, I as the sole proprietor or as a partner thereof. However, it has been urged by Mr. Nur Mohammad learned counsel for the plaintiffs that there is sufficient evidence/material on the record to conclude that in fact defendant No, 2 was running defendant No. 1 at the material time. In support of his contention, he has referred to Exhs.
6/1 and 2. Exh. 6/1 is an office note dated 25th March, 1969- prepared by Mohammad Ashraf P. W. 2 Exh. 6 whereas Exh. 6/2 is another office note dated 14th June. 1969 prepared by the aforesaid witness. It may be advantageous to reproduce the above note which reads as follows : MSMtK/513 25th March, 1969 Head Office, Lahore, ' Please refer to your letter No, 3698 and note that we have approached Mian Mohammed Anwer of Messrs Anees Corporation, Karachi, and are replied as under : `It is a disputed matter, we have never promised for any repayment, the dispute is as it is, there was no talk even with your Chairman as perhaps there has had been no meeting, or demands are still unsettled and as there is no written agreement between us, it can be decided on oath.'
' Please direct us further in the matter as waiting for a week further is of no meaning. Yours faithfully, for Model Steel Mills Ltd. (Sd.)
(S. M. Ashraf)."
"MSM/K/724 14th June, 1969.
' Head Office, Lahore.
' Sub : Case against M/s. Anees Corpn., Karachi.
' We are in receipt of your letter No, 5305 of 13th June, 1969. Whole record of the dealing with the aforesaid ex-dealer is at your office. Please forward us the following that we may show to Legal Adviser and obtain his advice in the matter :-
1. Invoice Nos. 1-5-6-10-11-12-13-16-19-20-23 24-25.26-27-28-29 & 30 (filed with records of year ending 31st August, 1967).
2. Karachi Office Cash Book ending 31st August, 1967. As you know that Sh. Mohammad Anwar is doing business under Style of Messrs Shaikh Brothers and or dealings are with Messrs Anees Corpn.
Their sister firm, we have to trace out from Cash Book that whether any of the payments were made through Cheque or all are Cash, if any payment is through Cheque, it will make a base to establish that the firm was genuine. Please expedite and oblige. Yours faithfully, For Model Steel Mills Ltd. (Sd.)
Manager."
(b) In order to prove the above notes, the 'plaintiffs have examined Mohammad Ashraf P. W. 2, who has deposed that he had worked in Model Steel Mills during the period from September 1967 to June 1970 and that he was the incharge of the Karachi Office and that he had no dealing with defendant No. 1, but there was an account in the name of defendant No. 1. The above witness has produced the aforesaid Exhs. 6/1 and 2 and has stated that the contents thereof are correct. In the cross-examination he has deposed that he met defendant No, 2 at the direction of his head office of the mill and that he reported in his note that defendant No, 2 is the proprietor of Shaikh Brothers and that there was no firm in the name of defendant No. 1 at the address of 99 Motandas Market, Karachi and that he has no personal knowledge about the account of defendant and that the transaction related for the period prior to his joining the above mill and, therefore, he has no personal knowledge about the same.
(c) It has been urged by Mr. Nur Muhammad that Exhs. 6/1 and 2 clearly establish the connection between defendants Nos. 2 and 1. A perusal of the above-quoted Exh. 6/1 indicates that P. W. 2 Muhammad Ashraf had a talk with defendant No, 2 in which defendant No, 2 stated that it was a disputed matter and that they had never promised for any repayment, and that the dispute was as it was and that their demands were still unsettled and that as there. Was no written agreement between them, it could be decided on oath. The above alleged conversation reproduced by P. W. 2 in his aforesaid note does not have any reference to the payment of any balance amount of the price of any goods supplied by the plaintiffs to defendant No. 1. On the other hand it contains an alleged averment to the effect that defendant No, 2 had never promised for any repayment. The word "repayment" used indicates that there was some financial dealings betweeen the parties, but in my view the word 'repayment' cannot connote any reference to the payment of the alleged balance price of the goods allegedly supplied.
' It is true that in sub-para. (1) of this note P. W. 2 S. M. Ashraf had stated that he had approached defendant No, 2 of Messrs Anees Corporation. It has been urged by Mr. Malik, learned counsel for defendant No, 2, that the reference to defendant No, 2 as of Messrs Anees Corporation does not prove that in fact defendant No, 2 was a partner or was proprietor of defendant No. 1. According to him P. W. 2 was directed by his Head Office to contact defendant No, 2 of Anees Corporation at the given address, and, therefore, P. W. 2 had reproduced what was stated by the Head Office. The above explanation seems to be plausible as the alleged supplies related to the period prior to P.
W.'s joining the plaintiff's service, of which he had no personal knowledge, and, admittedly there was no firm under the name of defendant No. 1 operating at the address in question, which is evident from P. W's. Aforesaid second note Exh. 6/2.
' P. W. Ashraf through his second note dated 14th June, 1969 Exh. 6/2 had asked his Head Office at Lahore to forward to him invoices mentioned in sub-para.
1. At the same time he had also stated that defendant No, 2 was doing business in the name of Messrs Shaikh Brothers and that the plaintiffs' dealings were with Messrs Anees Corpn. Their sister firm and that the plaintiffs had to trace out from their cash book as to whether any of the payments was made through cheque and that if any payment was made through a cheque, it would make a base to establish that the firm was genuine.
' It has been urged by Mr. Nur Muhammad that this Court should take into consideration the fact that defendant No, 2 has not come forward to deny the plaintiff's case and to depose facts which were within his special knowledge and that P. W. I Atiqur Rehman (Exh. 5) was the original plaintiff but after' the nationalisation they have sided with defendant No. 1 inasmuch as he was evasive before this Court. It was further urged by him that in any case Exh. 5/1 produced by the above witness corroborates Exhs. 6/1 and 2.
Reverting to Mr. Nur Mohammad's contention that as defendant No, 2 has not come forward as a witness to deny the plaintiffs' case and to depose facts within his special knowledge. An adverse inference be drawn against defendant No, 2, it may be observed that it was rightly A pointed out by Mr. Malik that there could not have been any special facts within the Knowledge of defendant No, 2 in view of his denial of having any dealing in respect of the above supplies. And that his son D. W. 1 could have been a competent witness for his father.
(vi) With reference to Mr. Nur Mohammad's contention that P. W. 1 was an unwilling witness for the reason that admittedly he is related to defendant No, 2 and. Therefore, this Court should take into account this fact while appraising evidence on the record, it may be observed that from the demeanour of Atiqur Rehman P. W. 1 in the witness-box, it was apparent that he was an unwilling witness. He was even hesitant to admit Exh. 5/1 in straigtforward manner inasmuch as he stated that the signature on this statement appeared like of his. But in my view the fact that the above witness was an evasive or unwilling witness for certain personal reason/motive would not dispense with the burden of proof on the part of the plaintiffs to establish that defendant No, 2 was either the proprietor or a partner of defendant No. 1. It cannot be assumed that if P. W. 1 would not have been evasive or unwilling witness, he would have stated what the plaintiffs expected of him.
(vii) Reverting to Exh. 5/1, it may be observed that it is a statement of account under the caption "Anees Corporation" "accounts position" dated 23rd August, 1967 indicating the balance payable by Anis Corpn. To the extent of Rs, 28,247.13. There is a note in this account-sheet, to the effect that the total of outstanding amount does not tally with the total of original invoiced amount because further allowance of 3f% has been ca'culated and deducted. It is true that the above statement proves that the a mount mentioned therein was outstanding against defendant No. 1. But in my view the above statement Exh. 5/1 cannot lend any support as a piece of evidence to establish that defendant No, 2 was either the sole proprietor of defendant No. 1 or was a partner of the above firm.
(e) It has also been urged by Mr. Nur Mohammad that in civil matters, it is the preponderance of the,evidence, which is the determining factor_or the probability of happening of a particular fact and that the plaintiff is not required to prove his case beyond reasonable doubt, which is the requirement of a criminal case. There cannot be two opinions on the above proposition of law urged by learned counsel for the plaintiffs, but in my view for the purpose of determining- preponderance of evidence or probabilities, there should be some reliable evidence on the record in order to establish facts in issue. The disputed- questions of facts cannot be decided on surmises and congectures or preponderance of evidence or probabilities cannot be weighed on surmises and congectures. In the instant case barring Exhs. 6/1 and 2, there is no documentary evidence on the record to connect defendant No, 2 with defendant No. 1 and even Exhs. 6/1 and 2 do not prove the fact that defendant No, I was the sole proprietor or a partner of defendant No. 1. In view of the above discussion, my finding on Issue No. 1 is in the negative.
5. Issues Nos. 2 to 6.-These issues can be taken up together. In my view there is sufficient evidence on the record to conclude that the plaintiffs had in fact supplied the iron pipes to defendant No. 1.
This evidence comprises of testimony of P. Ws. 2 and 3 and the documentary evidence in the form of statement of account Exh. 5/1, the ledger book Exh. 7/20 and cash book Exh. 7/21. Since there is no evidence in rebuttal to the above evidence, it can be safely. Concluded that in fact the plaintiffs had supplied the goods mentioned in the plaint to defendant No. 1 and received part payment in respect Thereof. However, it may be observed that there is a discrepancy in the figures of Exh. 5/1 and Exh. 7/20 inasmuch as in Exh. 7/20 the balance shown is Rs, 30,986.31 but whereas in Exh. 5/1 the balance amount is Rs, 28,247.13. According to Mr. Nur Mohammad learned counsel for the plaintiffs the entries in the ledger should be relied upon as defendant No. 1 did not avail of the allowance of 3k% by not paying the balance amount in 1967. Furthermore, according to him Exh. 511 was an internal document of the plaintiffs, the contents of which were not conveyed to defendant No. 1. Be that as it may the ledger maintained in the ordinary course of business is more reliable.
He further submits that the plaintiffs are also entitled to interest the balance amount by virtue of section 61 of the Sale of Goods Act. In support of which he has relied upon the case of Ghulam Nabi v. Khan Iftikhar Hussain Khan (1). In view of the above discussion I decree the suit for a sum of Rs, 37,958.24 against defendant No. 1 with 9% simpl interest thereon from the date of the suit till payment and costs.
' Whereas suit against defendant No, 2 is dismissed with no order as to costs. {{FOOT NOTE}}
(1) PLD 1962 Lab. 370 {{FOOT NOTE}}