' ABDUL QADIR MENGAL, J.--- This appeal arising out from the judgment and decree dated 23rd July, 2012, passed by the learned Additional District Judge-III, Quetta, whereby, the suit filed by the respondent/plaintiff Sultan Badsha, under Order XXXVII, Rule 2, C.P.C. For recovery of Rs,8,000,000/- along with mark-up/interest at prevailing bank rate, has been decreed against the appellant/defendant Abdul Karim Mengal son of Haji Abdul Haq.
2. Being aggrieved of the said judgment and decree, the appellant/ defendant has approached this Court, on the ground that the trial Court has failed to appreciate the facts and evidence and passed a judgment and decree, which has caused great injustice and prejudiced the appellant/ defendant. That the learned Judge, has failed to appreciate this fact that the cheque in question after its lost or stolen was stopped much before the institution of the instant suit by the respondent/plaintiff and furthermore, there was no occasion to issue such cheque in favour of the respondent/plaintiff. Again the respondent/plaintiff on basis of the said cheque already has sued the appellant, which was disbelieved by this Court in Criminal Acquittal Appeal No,165 of 2008, vide judgment dated 3rd September, 2008. That the respondent/plaintiff once again on account of the said bogus and stolen cheque, has sued the appellant/ defendant and the learned Judge through illegal and improper judgment has decreed the suit.
3. The facts of the instant suit are that the respondent/plaintiff on August, 2006, filed a suit on basis of a cheque, with a averment that the appellant/defendant was dealing in business of company in the name and style of Abdul Karim Mengal and brothers, who was enlisted with various departments of Provincial and Federal Government as a contractor and used to take the contracts of construction of roads and buildings. The respondent/plaintiff also being a contractor dealing with the work/contracts of roads and buildings and is enlisted as an approved contractor. In the year 2000 the appellant/defendant approached the respondent/plaintiff and made offer for joint business of construction of various roads and requested to invest money in his business. The respondent/plaintiff accepted the offer made by the appellant/defendant (hereinafter referred as company of the appellant/defendant). The respondent/plaintiff invested certain amount in the company of the appellant/defendant time to time and in this behalf accounts were maintained by the parties, however, in the year 2003 after settlement of accounts, an amount of Rs,8,000,000/- was remained outstanding against the appellant/defendant and thereafter, the partnership business has come to an end, as the appellant/defendant used to make misappropriation in the income and profits. Thus in order to make payment of the said amount, the appellant/defendant issued a Cheque bearing No,26919267 dated 7th August, 2003 of Rs,8,000,000/-, pertaining to Muslim Commercial Bank, Kalat Branch. The respondent/plaintiff in order to encash the said cheque from the concerned bank, deposited the same in his account bearing No,1901-7 pertaining to Muslim Commercial Bank, Meconghy Road Branch, Quetta. The bank authorities sent the cheque issued by the appellant/defendant to the concerned Muslim Commercial Bank, Kalat Brach, for clearance and encashment, wherefrom the same was dishonoured/returned with remarks "Non- availability of funds/ amount". It was also narrated in the plaint that the respondent/plaintiff after dishonour and return of the cheque approached the appellant/ defendant and apprised him the position and in this respect the appellant/defendant sought time and subsequently the respondent/plaintiff came to know that the appellant/defendant used to defraud and cheat the other persons for the business investments and he also issued a cheque to one Nasrullah, which was subsequently dishonoured, who lodged F.I.R. Against the appellant/defendant and he was arrested, however, finally the court of Judicial Magistrate-I, Quetta, on conclusion of the trial, acquitted the appellant/defendant vide judgment dated 31st July, 2006 and then also the High Court of Balochistan, as such, the respondent/ plaintiff approached the Civil Court for recovery of his amount worth Rs,8,000,000/-, as the appellant/defendant is bound under the law to make payment of the said amount.
4. The appellant/defendant while in his written statement after raising some legal objections, finally denied that no cheque has been issued from his side to the respondent/plaintiff. No any agreement/ contract and business between the appellant/defendant and respondent/ plaintiff ever was existed. Actually, before filing and known facts of such claim or cheque, the Munshi of appellant/defendant informed him that the cheque book has been lost after visiting of respondent/plaintiff to him. In this respect he immediately informed his Bank about missing or steeling of the cheque on the same date i,e, 3rd April, 2003, through Ex.D-2/A. He again immediately reported the lost or stolen of cheque to the concerned area Tesildar and has produced the copy of Roznamcha Exh.D-5/A, which indicate the Cheque No,26919266, pertaining to Muslim Commercial Bank, Kalat Branch. However, passing of about four months of the reported incident, he came to know that the respondent/plaintiff has filed against him a criminal case under section 489-F, P.P.C., before the Judicial Magistrate. The contention of the respondent/plaintiff was disbelieved by the learned Judicial Magistrate about issuance of any cheque to him. Respondent challenged the same before this Court, which was also dismissed. Although, the respondent/ plaintiff and appellant/defendant initially in year 2000 wanted to carry, some contracts and in this respect joint accounts were opened, but same were only used for the purpose of submitting tenders. No any significant amount deposited in it. Later on, his Munshi, conveyed him that actually cheque book was lost or stolen by the respondent/plaintiff, who prior missing of the cheque book from serial No,26919266 to 26919295, had come to Sorab and stayed with him at night and the cheque was lying in drawer when same was missed. There was neither any business nor both had carried any contract of any road and building. Actually, the facts show that after stealing the cheque book which remained with him four months. The respondent/plaintiff prepared the cheque of Rs,8,000,000/- and presented the bank, which could not materialized, as the appellant/defendant already had informed about loss of the cheque, therefore, same was not cleared. The suit of the respondent/plaintiff is false, bogus and has been filed on basis of fraud, therefore, same is liable to be dismissed.
5. Heard Messrs Barrister Behlol Khan Kasi and Barrister Amir Muhammad Lehri, Advocates for the appellant, whereas, Messrs Mujeeb Ahmed Hashmi and Khushal Khan Kasi, Advocates were heard for respondent.
6. Learned counsel for the appellant mainly contended that the suit is based on fraud, whereas, prior to the institution of the instant suit, the missing or stolen of the cheque book or the cheque in question had been reported not only to the bank authorities, but at the same time the concerned area Magistrate of Sorab for lodging report of missing of the Cheque Book from serial No,26919266 to 26919295. The learned counsel further argued that no any cheque ever has been issued to respondent/ plaintiff nor there was existed any consideration work/agreement or any due loan against the appellant/defendant. Admittedly no material is available with respondent/plaintiff for any services, profits, business or any agreement, justifying issuance of cheque of huge amount.
Learned counsel further argued that the cheques usually filled by the Munshi, or the appellant/defendant in his own writing. It has come on record that neither the appellant/defendant nor his Munshi had given the cheque of his own writing. Basically, it was the duty of the respondent/plaintiff to show that when and in whose presence the said cheque was issued to him. Again there is no material to show that the said cheque when and where issued to him. The cheque book was in possession of the Munshi, from whose custody, the appellant/defendant succeeded to stolen away the same. Learned counsel further argued that though the respondent/ plaintiff has produced copy of two joint accounts which indicating that they were holding joint account, however, learned counsel further argued that this type of joint accounts usually all contractors open for tendering bids for taking contracts. Again, very frankly and without concealment of any fact, it is stated that in year 2000, the appellant/defendant and respondent/plaintiff were intending to start, taking contracts jointly, however, that idea not materialized. Learned counsel further argued that while looking to the joint accounts, it appears that current joint account of National Bank Limited, Shahra-e-Liaquat Quetta, which contains only seven transactions, detail of which is as below:-- {{TABLE}} Date ParticularsDebitCreditBalance 2006-1-2Bal B/F 1520.00 2006-2-2Srv. Char114350.001420.00 2006-2-28Srv. Char114650.001420.00 2006-3-31Srv. Char114150.001370.00 2006-4-29Srv. Char113950.001320.00 2006-5-30Srv. Char113950.001270.00 2006-6-30Srv. Char113150.001220.00 ' The second joint account at that period was opened, carries no major transaction more than total Rs,2,500,000/-.
7. Learned counsel further submitted, even the above accounts and facts were not part of the pleading or claim of the respondent/plaintiff, as such, the appellant/defendant had no opportunity to rebut the same through his written statement, as same have been surprisingly produced during the course of the evidence. Legally these pleas and documents cannot be produced and admissible in evidence. In this respect, learned counsel relied on case of "Muhammad Tariq v. Mst.
Shamasa Tanveer", PLD 2011 SC 151, which reads as follow:--- "----New plea---Absence of facts---Effect---In civil litigation, a party thereto has to set out its/his case in pleadings especially which relates to facts---In absence of any fact, no plea can be allowed to be raised, agitated and set forth at a later stage---Raising of such plea is beyond the scope and is impermissible as per the law."
' Learned counsel further argued that respondent/plaintiff filed a criminal case, which later on was dismissed by the Judicial Magistrate, then the High Court disbelieved the contention of issuing cheque of Rs,8,000,000/- treated it without any consideration, on account of the same, the appellant/defendant was acquitted. Learned counsel further argued that though the copy of joint accounts submitted at later stage and no any chance was given to appellant/defendant to rebut the same properly, however, the both joint accounts itself falsify the claim of the respondent/plaintiff, as on any occasion the total transaction of both joint accounts did not exceed to Rs,4,000,000/-. So being the question how the respondent/plaintiff got interest of Rs,8,000,000/- because the cheque of Rs,8,000,000/- indicates that parties at least would have had entered into a joint venture of amounting crore and crores. Learned counsel further argued that the passed record of the respondent/plaintiff shows that he was involved in such activities and defrauded the other parties. In this respect learned counsel quoted the case of Siraj-ud-Din v. Sultan Badsha.
Finally learned counsel submitted that actually there was no iota of evidence, which could suggest that any agreement, transaction or business was existed and in connection of the profit of the same this cheque was issued. Learned counsel in support of his contention relied on following authorities:--- ' 2013 YLR 611, 2013 CLC 1048, PLD 2004 Peshawar 168, 2001 CLC 39, 2012 MLD 1898 and 2009 CLD 1301.
8. Learned counsel for the respondent/plaintiff mainly contended that the suits come under Order XXXVII, Rules 1 and 2 C.P.C., are summary in nature and legally proof of consideration as has been stressed by the counsel for the appellant/defendant is not laid upon the respondent/plaintiff, in case any claim based on negotiable instrument and it is not the respondent/plaintiff to prove the consideration, but it is the appellant/defendant when he admits the signature over the negotiable instrument or cheque and in this respect learned counsel further relied on Article 118 of the Qanun- e-Shahadat, stressing that once the appellant/ defendant admits his signature then burden of proof in a such suit or proceedings lies on that person who would fail, if no evidence at all were given on either side. So being, it is the responsibility of the appellant/ defendant to disprove the facts. Learned counsel although admits this fact that facts about mentioning of the joint accounts and so as absence of the agreement exist in the preseht case, however, as these facts reflects from the case record, therefore, no surprise has occurred to appellant/ defendant to rebut the same. Learned counsel further argued that the judgment of this Hon'ble Court on criminal side, not accepting the version of the respondent/plaintiff though exists, however, legally a criminal case regarding acquittal of the appellant/defendant in a criminal case under section 489-F, P.P.C. Did not debar the plaintiff to file suit of recovery against the defendant. The learned Additional District Judge-III, Quetta is quite right to hold that there does appear no cause to decreeing the matter.
Learned counsel in support of his contention relied on the following authorities:--- ' PLD 2008 Karachi 429, 1985 MLD 181 Karachi, 2013 CLC 1048, 2009 CLD 1301 Lahore, AIR 1988 Calcutta 59.
9. After hearing the both sides, we have perused the record of the case including the impugned judgment and decree of the trial Court. Learned trial court has based his judgment more or less on the point that the own version of the appellant/defendant shows that respondent/ plaintiff and the appellant/defendant had a good relations and also they had opened joint account. Moreover, the appellant/defendant has accepted his signature over the cheque, therefore, he has decreed the matter, however, perusal of the evidence shows that the learned trial Court has not considered the real facts and evidence and instead of deciding contentious points, attended extraneous material.
Although, we are conscious of this fact that this suit come under Order XXXVII, Rules 1 and 11, C.P.C., which requires summary trial and procedure is different to rest of the civil suits, however, admittedly, every claim requires or based on some footings and cause of initiation and this principle is universal and it is expected that behind each and every suit there must be any consideration or cause libeling or burdening to the other party. Here in the present case evidence is totally silent about such consideration entitling the respondent/plaintiff for receiving such huge amount from the appellant/defendant. In other words, there is no any consideration entitling the respondent/plaintiff to get such huge amount from the appellant/defendant. In this respect the evidence of the respondent/plaintiff is also silent that the alleged cheque when and in whose presence was issued/delivered to him and, so as, he claim of the respondent/plaintiff also gets no support from his evidence that there existed such amount of him against the appellant/defendant.
However, before dilating upon the evidence, we think it would be appropriate to point out the issues, which have been prepared by the learned Additional District Judge-III, Quetta out of the pleading of the parties.
(1) Whether the suit flied by the plaintiff is not maintainable in view of Preliminary Legal Objections A to C raised by the defendant in written statement?
(2) Whether any business transaction/partnership existed between the plaintiff and defendant?
(3) Whether the Cheque bearing NO.26919267 dated 7-8-2003 pertaining to Muslim Commercial Bank, Kalat Branch issued by )lie defendant in favour of the plaintiff was dishonoured on its presentation due to "non-availability" of funds/amount?
(4) Whether the Cheque bearing No,26919267 dated 7-8-2003 pertaining to Muslim Commercial Bank, Kalat Branch was issued by the defendant in favour of the plaintiff' dishonestly and knowingly that no amount in his account is available?
(5) Whether the plaintiff is entitled for the relief claimed for?
(6) Relief.
10. Now adverting to the evidence, the P.W.1 Abdul Nasir, the than Manager, Union Bank Limited, Quetta, who has produced the account statement of joint account in respect of Union Bank Limited, Quetta, which shows that in year 2002, the both side have opened a joint account, however, this witness has admitted to this fact in his cross that:-- {{URDU TEXT}}
11. The P.W.2 Muhammad Shahid, Cashier Muslim Commercial Bank Limited, McCongy Road, Quetta, has produced the relevant cheque of Rs,8,000,000/-, which has been dishonoured and so as also produced the dishonor slip, which only shows that the cheque has been referred to drawer.
12. The P.W.3 Syed Abdul Basir, representative of National Bank, Shara-e-Iqbal Branch,Quetta, has produced a bank, statement Exh.P-3/A, however, in cross this witness has admitted that:- {{URDU TEXT}}
13. The P.W.4 Muhammad Azeem, Branch Operation Manager, Muslim Commercial Bank, Kalat Branch, produced the record and certificate of the cheque, application and other related record of the dishonoring of the cheque. This witness of the respondent/plaintiff actually damaged the claim or suit of the respondent/plaintiff, as the witness has stated that he had brought the required certificate of the dishonoring of the cheque, which he has produced as Exh.P/4 and Exh.P/4-A. The Exh.P-4/A shows that the cheque had not been dishonored due to insufficient amount, but only was referred to drawer on account of his application which is about stoppage of the payment dated 3rd April, 2003.
14. The P.W.5 Muhammad Aslam, representative of National Bank of Pakistan, Industrial Area Branch, Quetta, through this witness the respondent/plaintiff has produced some copies of the call deposits, which have been deposited by the appellant/defendant. In our view, these call deposits give no benefit to the respondent/plaintiff, as admittedly, the appellant/defendant is a contractor and he used to deposit amount, as and when he. Gets any contract, because there is no any entry, which could show that the respondent/plaintiff has deposited the same on behalf of Abdul Karim Mengal.
15. The P.W.6 Maqbool Ahmed, Chief Manager, Bank of Khaiber, has produced the copy of the cheque of Rs,310,000/- as Exh.P/6-A, and Reason Memo as Exh.P/6-B, which has been dishonored, however, in his cross this witness has admitted that:- {{URDU TEXT}}
16. The P.W.7 Muhammad Rafique Head Constable, has produced the copy of the F.I.R. No,99 of 2006 as Ex.P/7-A, lodged by the respondent/plaintiff against the appellant/defendant, but the allegation of the respondent/plaintiff was not believed and the appellant/defendant was acquitted of the same.
17. The respondent/plaintiff himself recorded his statement and he has almost repeated the contents of his plaint.
18. So, in the light of the above it has been seen whether the respondent/plaintiff, prima facie, has made out a case showing that the alleged cheque was issued him by the appellant/defendant or otherwise? Now adverting to the issue No,1, which is as follow:--- ISSUE No,l.
' Whether the suit fated by the plaintiff is not maintainable in view of Preliminary Legal Objections A to C raised by the defendant in written statement?
' This issue is about maintainability of the suit, which is decided in favour of the respondent/plaintiff, as the suit of the respondent/ plaintiff was maintainable under the law. ISSUE No,2.
' Whether any business transaction/partnership existed between the plaintiff and defendant?
'After the perusal of the evidence it appears that there is no any iota of evidence on record that there was any business transaction/ I partnership existed between the respondent/plaintiff and appellant/ defendant, and there is no single word in the evidence that both parties dealing any business in the name and style of Abdul Karim Mengal and brothers, as has been averred by the respondent/plaintiff in para No,2 of his suit. So as there is no any single evidence on record from the side of the respondent/plaintiff that they got a particular contract of buildings etc. And acquired any labourer or hired any labourer for construction of the same. There is not a single word in the para of the claim or plaint of the respondent/plaintiff that they started construction of various roads and invested on the same, or any account was maintained in respect of the said contract. Again, there is not a single evidence that the disputed cheque, when, where and in whose presence was issued or handed over to the respondent/plaintiff. There is no evidence that whether they sat and settled their accounts in presence of some people and what was the profit of their business that it could force or lead the appellant/defendant to, issue such cheque in his favour. The rest all the paras of the suit or plaint related to the dishonour or non-payment of the cheque amount. Again in the light of the above, a plausible explanation has come from the side of the appellant/defendant that his cheque book was lost or stolen by the respondent/plaintiff from his Munshi. The statement of Munshi, has been recorded, the same has not been rebutted by the respondent/plaintiff. The respondent/plaintiff also has failed to rebut this fact that why and under what circumstances and for what purpose, the appellant/defendant four months prior to the issuance of the instant cheque informed the bank for lost of his cheque book and so as also informed the Tehsildar concerned about his lost of cheque book. This fact although was in the knowledge of the respondent/plaintiff well prior of institution of the suit; but he had remained mum in regard to utter a single word, that why such record was prepared by the appellant/ defendant.
Although this Court vide judgment dated 3rd September, 2008, in Criminal Acquittal Appeal No,165 of 2008, already has held or disbelieved the cheque on the ground that there is no any consideration of the alleged cheque. For the sake of facility, the observation of this Court is given hereinbelow:-- "We have carefully considered the contentions put forth by learned counsel and have also gone through the impugned judgment as well as evidence on record. It is appellant's case that he and respondent were partners in business and on settlement of account Rs,80,00,000/- were .Found outstanding against respondent for which he issued a cheque dated 7-8-2003 which was dishonoured whereas on the other hand respondent has taken plea that on 3-4-2003 his cheque book containing Cheque Nos.26919266 to 26919295 was misplaced for which he lodged report with concerned Tehsildar as well as informed the concerned Bank and cheque in dispute was one of those missing cheques which was illegally used by appellant. Learned Judicial Magistrate after putting the prosecution and defence version in juxta position found the defence plea more plausible and acquitted respondent of the charge. After having gone through the evidence produced by both parties we are also of the same view because appellant has not produced any witness with regard to settlement of account or to prove that on such settlement any amount was found outstanding against respondent who issued cheque in dispute. On the other hand respondent produced representative of Bank who supported his plea with regard to submission of application by him informing the bank about misplacement of cheque book. He also produced application submitted by respondent as mark/D.W.2-A which shows that said application was moved on 3-4-2003, much prior to the date on which cheque in question was allegedly issued to appellant and we have no reasons to disbelieve his statement as he is an independent witness. In the light of his statement the case of appellant has become 'doubtful and benefit has to be extended to respondent which was rightly extended so by learned Judicial Magistrate. After acquittal respondent carries double presumption of innocence and .Findings of trial Court warrants no interference merely because on reappraisal of evidence, we may come to a different conclusion when conclusion drawn by trial Court is equally plausible in peculiar facts and circumstances of the case."
ISSUE No,3.
' Whether the Cheque bearing No,26919267 dated 7.8.2003 pertaining to Muslim Commercial Bank, Kalat Branch issued by the defendant in .Favour of the plaintiff was dishonoured on its presentation due to "non-availability" of funds/amount?
' Coming to this issue, which says that Whether the Cheque bearing No,26919267 dated 7-8-2003 pertaining to Muslim Commercial Bank, Kalat Branch issued by the defendant in favour of the plaintiff was dishonoured on its presentation due to non-availability of funds/amount? The answer of the same is no and this issue also gone against the respondent/plaintiff, as admittedly, the cheque in question has been stopped by the Bank on application of the appellant/defendant as he had informed his bank about missing or stolen of his cheque book, even four months prior to dishonouring of the cheque.
ISSUE No,4.
' Whether the Cheque bearing No,26919267 dated 7-8-2003 ertaining to Muslim Commercial Bank, Kalat Branch was issued by the defendant in favour of the plaintiff dishonestly and knowingly that no amount in his account is available?
' Now coming to Issue No,4, in our view there is no evidence, from the side of the respondent/plaintiff in his support and furthermore, nothing has come on record to show that the said cheque was issued to him in presence of any witness, or the said cheque was issued by the appellant/defendant. Therefore, this issue also goes against the respondent/plaintiff.
19. Although we have discussed hereinbefore, that primarily there is no burden or duty upon the respondent/plaintiff to prove consideration of a cheque, when the signature over the same is accepted by the appellant/defendant, however, in a particular circumstances, where question of stolen and fraud has been attributed to the respondent/ plaintiff and in that regard the appellant/defendant has produced plausible material, showing that he has not issued the cheque to the respondent/plaintiff and the contents of the cheque are result of forgery or fraud, and in that regard lodging F.I.R. About missing of the cheque book and stopping of the bank in a normal course of business, at best show no mala fide on part of the appellant/defendant, and the said version has been accepted in criminal case by the trial Court and as well as by this Court. So being, it appears that the burden lying on the appellant/defendant, successfully; has been proved to some extent, therefore, it is rightly said that onus of proof of payment in civil cases not permanently fixed, but consistently shifting, if some evidence placed or come on record, may shift onus on the other side. In this respect we have fortified over view from the case of "Akbar Ali v. Ehsan Ellahi" PLD 1980 Lahore 145.
20. Thus in the light of the above, we are of the view that the respondent/plaintiff in the present case has miserably failed to made out a case to justify or entitle him for the claim of the alleged amount, particularly, when the very issuance of the same is doubtful and there is a no consideration behind the same.
21. On contrary, adverting to the evidence of the appellant/ defendant, we have no hesitation to hold that the said version of the appellant/defendant has been believed, as the D.W.1 Muhammad Rafique Head-Constable, has produced the copy of F.I.R., which showing that respondent/plaintiff was involved in cases of such type of fraud. The F.I.R. Shows that a contractor namely Haji Muhammad Hassan, lodged F.I.R. No,4/2006, against the respondent/plaintiff, but he instead of depositing of a cheque of Rs,3,000,000/- deposited it to his own account.
22. The D.W.2 Muhammad Azeem, Manager Muslim Commercial Bank Limited Kalat Branch, has brought the record of the case, which shows that on 3rd April, 2003, about four months prior of the institution of the instant suit, the appellant/defendant Abdul Karim Mengal, has requested the bank for stoppage of payment, as according to him, he had lost his cheque including the disputed Cheque No,2691.9267. The Exh.P-3/A, is also of the said bank, in which the appellant/defendant has been conveyed that his requested has been noted and directions for nonpayment has been issued.
23. The D.W.3 Shah Jehan, is the Munshi of the appellant/defendant and according to him, respondent/plaintiff had come at Shorab and stayed with him and from the next day, the cheque which was lying signed from the side of the contractor was found lost. He informed the contractor then, lodged report with Tehsildar. This witness has faced lengthy cross, but no benefit material has been extracted from his statement.
24. The D.W.4 Mehmood Ahmed Tehsildar Sorab, has supported the Exh.D/4-A, the Roznamcha, about missing of the cheque book.
25. The above facts at best, requires that respondent/plaintiff should give any proof or material to justify for issuance of the cheque of Rs,8,000,000/-, but he badly has failed.
' Thus, in the light of the above discussed circumstances, we are of the view that the judgment and decree dated 23rd July, 2012, passed by the learned Additional District Judge-III, Quetta, is based on extraneous material and learned Additional District Judge-III, Quetta, has not properly appreciated or touched the evidence, therefore, the same being illegal, improper and against the facts is set aside, in result, this appeal is allowed and the suit of the respondent/plaintiff is dismissed, with no order as to cost. Decree sheet be drawn accordingly.