1. ' AFTAB AHMED GORAR, Through this IInd Appeal filed under section 100, C.P.C., the appellant Messrs Nagina Cotton Mills Limited have challenged the judgment dated 25-10-2011 passed by learned Vth Additional District Judge, Karachi South whereby he dismissed Civil Appeal No.391 of 2010 filed by the appellants and upheld the judgment and Decree dated 30-4-2010 passed by IIIrd Senior Civil Judge, Karachi South in Civil Suit No.964 of 2006 whereby the suit filed by the appellants was dismissed.
2. ' Brief facts, giving rise to the filing of instant Appeal, are that the appellants filed suit claiming therein to be public limited company, engaged in the business of cotton yarn, spinning and marketing whereas the respondent No.2 to be a broker of cotton yarn. According to the appellant, respondent No.2 approached them for supply of cotton yarn to respondent No.1 and other customers. It is further asserted that the respondent No.2 approached the appellant for supply of 230 bags of cotton yarn of 20/1 counts in the early days of May, 2005 and the respondents again assured and guaranteed timely payment of the amount as the sale was on 10 days credit. As per claim of the appellant, they at the joint request of the respondents, supplied 150 bags of cotton yarn on 9-5-2005 amounting to Rs.8,36,625 to Messrs Kashif Knitting Apparel, against which respondent No.1 made a payment of Rs.4,50,000 through Pay Order No.0148909 dated 25-5-2005 and asked for supply of balance cotton yarn. Again on the joint request of the respondents, on 30-5-2005 the appellant further delivered 80 bags of cotton yarn to Messrs Tayab Enterprises for consideration of Rs.4,27,800. It is further asserted that after adjustment of Rs.4,50,000 referred above, there was a balance of Rs.8,14,425 outstanding against the respondents, which they failed to pay despite repeated requests.
3. ' The respondents filed written statement separately, denying all the allegations leveled against them. Respondent No.1 stated that he never engaged in the business with the appellant but he allowed one Riaz to use his account who had business with the appellant through respondent No.2 and one Obaidur Rahman Haroni. Respondent No.1 had no knowledge of the said transactions.
4. Respondent No.2 admitted to the extent that he is a broker and used to bring two parties round the table for any transaction and for such service he used to receive charges/commission, however in case of supply of any goods or payment thereof as agreed to between the supplier and the purchaser, respondent No.2 had no concern. He further asserted that he neither approached the appellant for supply of the bags of cotton of 20/1 counts in the month of May, 2005 nor gave assurance or furnished guarantee for payment thereof. He further asserted that he provides his services as a broker but the appellant illegally and unauthorisedly adjusted his amount of R.2,34,779 lying with the appellant towards the outstanding amount of the said transaction for which he reserves his right to recover the said amount.
5. ' The learned Sr. Civil Judge framed issues and after recoding evidence adduced by the appellant and respondent No.2, as respondent No.1 failed to produce any evidence, and hearing the counsel for the parties, dismissed the suit vide judgment and decree dated 30-4-2010. The said judgment and decree were challenged in civil appeal, by the appellant which was also dismissed vide Judgment dated 25-10-2011, hence this IInd Appeal.
6. ' Learned counsel for the appellant contended that the impugned judgments of two courts below are based on surmises and conjectures and have been passed without going through the pleadings and evidence on record; that there is gross misreading of evidence committed by the trial Court; that the two courts below have not given due consideration to the admissions made by the respondents in their pleadings; that the courts below did not take into consideration that respondent No.2 had admitted that the transaction was made through him. He further contended that it is a settled law that if the evidence led by any party is not challenged/ rebutted in cross- examination, the same would be deemed to have been accepted but such settled principle of law has been ignored by the two courts below. He prayed for allowing the appeal and setting aside of impugned judgments. He relied upon the judgments reported in 1999 CLC 1358, 2001 SCM R 1700, 2009 YLR 389, 2008 CLD 412, 2008 YLR 2921, 2008 CLC 446 and 2008 CLC 1043.
7. ' On the other hand, learned counsel for respondent No.1 argued that respondent No.1 never engaged in the business with the appellant and he had no knowledge of the said transactions.
8. According to him, although respondent No.1 led no evidence but the burden to prove its case is on the plaintiff and he cannot take advantage of weakness of other side. He also contended that it is the duty of the court itself to apply its mind judiciously to the facts and law irrespective of the fact that any party has not led ,the evidence, as such the learned trial Court has rightly applied its mind and arrived at just and proper conclusion by dismissing the suit.
9. ' Learned counsel for respondent No.2 contended that he is a broker and he used to bring two parties round the table for any transaction and for such service he received charges/commission, however in case of supply of any goods or payment thereof as agreed to between the supplier and the purchaser, respondent No.2 had no concern. He further contended that he neither approached the appellant for supply of the bags of cotton to Messrs Kashif Knitting Apparel and Messrs Tayyab Enterprises nor gave assurance or furnished guarantee for payment thereof. He further contended that respondent No.2 provides his services as a broker but the appellant illegally and unauthorisedly adjusted his amount of Rs.2,34,779 lying with the appellant towards the outstanding amount of the said transaction. According to him, the appellant has miserably failed to produce any documentary evidence to prove that respondent No.2 ever furnished any guarantee or gave assurance for the payment of the abovesaid consignments. The counsel for the respondents /prayed for dismissal of the appeal.
10. ' It appears that the appellants' grievance is that on 9-5-2005 they supplied 150 bags of cotton yarn amounting to Rs.8,36,625 to Messrs Kashif Knitting Apparel and thereafter they further supplied 80 bags of cotton yarn on 30-5-2005 amounting to Rs.4,27,800 to Messrs Tayyab Enterprises. According to the appellants, they supplied the abovesaid cotton bags to these two business concerns at the request of the respondents. However, during their evidence they failed to produce any documentary evidence to establish that the respondents acted as guarantors in respect of the said consignments, nor they have produced any material to prove that such delivery was made to the abovesaid two concerns either at the request or the instructions of the respondents.
11. ' The learned counsel for respondents contended that as respondent No.1 did not lead any evidence nor cross-examined appellants' witness, as such the assertions made by the appellants during the evidence having gone unchallenged and unrebutted are to be accepted. In support he relied upon the decisions, as quoted above. In this connection, it may be observed that each party has to establish its case on its own footings and it cannot take advantage of the weakness on the part of the other side. Moreover, it is the duty of the court to apply its judicious mind to the material available on record. The court is not supposed to blindly rely upon the words of the party coming forward in the witness box, rather it has to evaluate properly the evidence adduced during the trial.
12. ' From the perusal of cross-examination of appellants' witness namely Munawar Iqbal who claimed to be the Director of appellant-company, it appears that he has admitted, "It is correct to suggest that there is no written agreement between the plaintiff and defendant No.2." He, however, voluntarily said, "as per market rules verbal orders are conditions." He further admitted, "It is correct that no guarantee is available on record........ It is correct to suggest that there is no such letter on record It is incorrect to suggest defendant No 2 requested us for 150+80 bags." On the face of such admissions it cannot be said that the appellants have succeeded in proving their claim against the respondents. In this view of the matter, the ease-law relied upon by the learned counsel for the appellants is of no help to the appellants.
13. ' Apparently, the abovesaid 150 and 80 cotton bags were supplied by the appellants to Messrs Kashif Knitting Apparel and Messrs Tayyab Enterprises respectively but they did not bother to make the said two concerns as parties in the suit. They could have sued the abovesaid two business concerns for the recovery of the abovesaid amount but instead of doing so, they have chosen to file suits against the respondents on the assertion that at their request they supplied the abovesaid cotton bags to these two concerns, however, they have failed to produce any Guarantee or, for that matter, any other written material to establish such assertion. In the circumstances, the suit was rightly dismissed by the trial Court and so also the appeal was rightly dismissed.
14. ' Upshot of above discussion is that the instant find Appeal having no merits, is hereby dismissed.