' SADIQ HUSSAIN BHATTI, J.--- The Appellant is aggrieved by the judgment dated 18-1-2012, passed by III-Additional District Judge, Karachi (East) in Civil Appeal No,24/2011, whereby the appeal was dismissed and the judgment and decree dated 13-1-2011 passed by VI-Senior Civil Judge; Karachi
(East) in Suit No,1153/2004, filed by the respondent, whereby the said suit was decreed in favour of the respondent, was maintained.
2. Facts of the case, in brief, are that -the respondent/plaintiff filed the suit for recovery of Rs,565,121 against the appellant/defendant, stating therein that the respondent/plaintiff is a Partnership Firm, engaged in the business of different poultry products. On the request of the appellant/defendant, respondent/plaintiff from time to time sold and delivered chicks to the appellant on credit basis.
The appellant used to make part payment against the outstanding amount. As on 3-10-2002, the balance due and payable by the appellant was Rs,561,121. On repeated requests of the respondent, the Appellant issued a cheque of Rs,42,000 drawn on Habib Bank Ltd., Malir Cantt., Branch, Karachi, which was dishonoured on presentation due to "Funds insufficient". The Appellant was informed accordingly, but despite repeated requests/demands, the appellant did not pay the balance amount of Rs,565,121 to the respondent. The respondent issued a legal notice to the appellant, but the same was remained un-replied. The respondent, having no other option filed the above suit, which was decreed. The Appeal, filed by the appellant before the first appellate Court, was dismissed, hence the present second appeal.
3. Learned counsel for the appellant submitted that the suit of the plaintiff was barred by limitation, but the Courts below ignored this vital fact. Learned counsel submitted that no resolution of the company has been filed to show that the company has resolved to file the suit for recovery. It was also argued that the documents, filed after expiry of time set for filing of the documents, cannot be taken into consideration by the trial Court. Finally the learned counsel submitted that the impugned judgments are the result of misreading and non-reading of evidence. Hence, he prayed that the impugned judgments may be set aside and the suit of the respondent may be dismissed.
4. On the other hand, learned counsel for the respondent contended that the suit was filed within time. He also submitted that the respondent is not a limited company, rather it is a firm, therefore, there is no need for any Board Resolution. He also submitted that since the last payment was made on 5-10-2002, therefore, the suit was well within time. He also denied that the documents were filed late and submitted that the documents were filed within seven days of framing of issues. It was also submitted that no document whatsoever was produced by the appellant to rebut the averments of the plaintiff in the suit. In the end, the learned counsel submitted that the impugned judgments do not suffer from misreading or non-reading of evidence and, therefore, no interference is called from this Court and prayed for dismissal of the appeal. In support of his submissions, learned counsel has relied on the following cases:---
1. Muhammad Manzoor v. National Bank of Pakistan [1986 SCM R 1366],
2. Muhammad Yasin v. Muhammad Abdul Aziz [PLD 1993 SC 395],
3. Iftikhar Ahmed v. Shahzada Kabir Aftab [2004 CLC 46].
5. I have heard the learned counsel for the parties and have gone through the record and perused the case law cited before me.
6. The learned trial Court on the basis of pleadings of the parties framed the following issues:--- i. Whether the suit is not maintainable and is time barred? ii. Whether as per usual course of business the plaintiff sold the chicks to the defendants according to their demands and the defendants usually made the part payments in installments in respect thereof? iii. Whether the defendants have paid the entire claimed outstanding amount to the plaintiffs? iv Whether the plaintiffs are entitled to the relief claimed? v. What should the decree be?
7. So far as the first issue regarding maintainability and limitation is concerned, the trial Court decided the same in favour of the plaintiff/respondent after observing that "regarding limitation, the learned counsel for the plaintiffs argued that the defendants issued last cheque of Rs,42,000 dated 5-10-2002 while the instant suit was filed on 2-10-2004 hence well within time. In this regard the learned counsel for the plaintiff [placed] reliance upon case law reported as 1986 SCMR 136.6 (Muhammad Manzoor v. National Bank of Pakistan)". In the cited case the petitioner, who had obtained loan from National Bank of Pakistan, challenged the judgment and decree of the trial Court, against him on the ground of limitation. The honourable Supreme Court observed that loan advanced to the petitioner was subsequently renewed by executing mortgage deed in favour of the Bank. Later on petitioner confirmed the amount outstanding against him by signing the Balance Account Slip and the honourable Supreme Court held that such documents in existence extend the period of limitation before its expiry. It is not denied that the cheque of Rs,42,000 was not issued on 5-10-2002. Rather in the cross-examination, the witness of the appellant admitted that the last cheque of Rs,42,000 dated 5-10-2002 was issued by him as a part payment in respect of outstanding amount against him. So far as the maintainability of the suit is concerned, the trial Court held that sections 54 and 56 of the Specific Relief Act pertains to injunction of property and, therefore, are not applicable to the present case. The appellant did not produce any evidence to show that the respondent was a limited company, therefore, the version of respondent that it was firm, which was also admitted by the appellant in his written statement, was believed and these issues were decided in favour of the respondent.
8. So far as Issue No,2 regarding part payment in installments is concerned, the trial Court referred to the above quoted portion of the cross-examination of the defendant and held that since the defendants have not produced any document in support of their case that the purchase was made on cash basis, therefore the plaintiffs have succeeded in establishing that part payment in installments was made by the defendants and decided the issue in favour of the plaintiff/respondent. Even payment by cheque itself shows that payments were made in cash.
9. Issue No,3 is regarding the claim of the defendant that the entire outstanding amount of the plaintiff/respondent was made by him. However, the defendant has admitted in his cross- examination that he has not produced any document in support of his claim. On the other hand, plaintiff/respondent has produced ample material to show that the entire amount has not been made by the defendant/appellant. Although it has been claimed by the defendant that after the cheque of Rs,42,000 was dishonoured, the same was paid to the plaintiff/respondent, but no document or witness was produced to prove the same. Accordingly, this issue was also decided in favour of the plaintiff/respondent.
10. In view of the above findings, the trial Court also decided the other issues in favour of the plaintiff and decreed the suit.
11. The learned trial Court has also discussed the evidence minutely and has come to the conclusion that judgment of the trial Court is based on sound and cogent evidence concurred with the findings of the trial Court, thus there are concurrent findings of the two Courts below in favour of the respondent and against the appellant.
12. In the case of Rafiul Qadre Naqvi v. Safia Sultana (2009 SCM R 254), the honourable Supreme Court discussed the scope of second appeal in the following words:--- "S. We have heard the arguments of learned counsel for the parties and facts in the light of the case-law cited at bar. Now we have to examine the extent and scope of interference of section 100, C. P. C. Regarding second appeal involving challenge to concurrent findings of fact recorded by the Courts below whether the High Court was empowered to interfere to set aside the concurrent findings howsoever erroneous by misreading of evidence on record, by ignoring a material piece of evidence on record or through perverse appreciation of evidence. It will be advantageous to examine the scope of section 100, C.P.C. Regarding second appeal. The following are the grounds for its consideration:---
(a) the decision being contrary to law or to some usage having the force of law;
(b) the decision having failed to determine some material issue of law or usage having the force of law;
(c) a substantial error or defect in the procedure provided by this Code 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.
13. Learned counsel for the appellant has not been able to show that the two Courts below have not appreciated the evidence properly or there is a substantial error or defect in the procedure provided by the Code of Civil Procedure 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 or the decisions of the Courts below were contrary to law or to some usage having the force of law from the decision having failed to determine some material issues of law or usage having the force of law.
14. In view of above discussion, I find no merit in the instant second appeal, which is hereby dismissed and concurrent findings of the Courts below are maintained.