1. ' AFTAB AHMED GORAR, J.---Through this Second Appeal the appellant Muhammad Imran Motlani has impugned the judgment dated 16-3-2012 and Decree dated 22-3-2012 as well as amended decree dated 18-7-2012 passed in Civil Appeals No,50/2009 and 19/2010 by learned IIIrd Additional District Judge, Karachi East whereby he dismissed the appeals filed by the appellant against the judgment dated 24-12-2009 and final decree dated 23-12-2009 and preliminary decree dated 2-3- 2009 respectively.
2. ' Precisely the facts of the case are that respondent No,1 Mohammad Ashraf filed Civil Suit No,716/2005, inter alia, against the appellant Mohammad Imran Motlani and respondent No,2 namely Mohammad Irfan Motlani for recovery of Rs,25,65,000. During, the pendency of the suit on the application moved by the plaintiff/respondent No,1, preliminary decree for an amount of Rs,15,65,000 was passed. Respondent No,1 filed execution application No,07/2009 which was allowed vide order dated 17-12-2009. The said order which was challenged through R.A. No,06/2010 which was dismissed vide order dated 24-2-2010. Against the said order the appellant filed C.P.
3. No,D-935/2010 which was also dismissed by a D.B. Of this court and leave to appeal was also refused by the honourable Supreme Court. The appellant filed Civil Appeal No,50/2009 against the preliminary decree which was also dismissed vide order dated 28-1-2010. The appellant challenged the said order before this Court through Revision Application No,31 of 2010 and vide order dated 19- 4-2010 the revision was allowed and the matter was remanded back to the first appellate forum for deciding the same afresh after giving full opportunity to the parties of being heard. Thereafter final decree was passed in favour of respondent No,1 vide judgment dated 23-12-2009 followed by Decree dated 24-12-2009 against which the appellant filed Civil Appeal No,19/2010 which was also dismissed vide Judgment dated 16-3-2012 and decree dated 23-3-2012. Subsequently in Civil Appeal No,19/2010 amended decree dated 18-7-2012 was issued. Instant Second Appeal has been filed against the said judgment and decrees.
4. ' I have heard learned counsel for the parties and have gone through the material available on the record.
5. ' Learned counsel for the applicant contended that the impugned judgment and decree are not sustainable in law. He further contended that respondent No,2 has already paid Rs,3,00,000 which figure has not been deducted by the two courts while passing the impugned decrees and, in fact the evidence on this point has been grossly misread by the two courts below. He further contended that although respondent No,1/plaintiff had miserably failed to prove the losses suffered by him in the business despite that the courts below have decreed an amount of Rs,7.00,000 as earnest money without even framing any issue on this point. He further contended that the appellant was acquitted in the criminal case filed by respondent No, 1 as such he cannot be punished again in civil litigation. According to him, the liability of respondent No,2 cannot be shifted upon the appellant merely on account of the fact that they hold a joint bank account. He prayed for the setting aside of the judgment and decrees passed by the two courts below.
6. ' Conversely, learned counsel for the respondent No,1 contended that the impugned order and decrees passed by the two courts below are in accordance with the law and norms of justice. He contended that the two courts below have assigned cogent and sound reasons tor passing impugned judgments and the decrees. According to him, the plaintiff/ respondent has adduced tangible evidence in support of his claim which could not be shaken/shattered by the other side, hence the trial court rightly decreed the suit. He further contended that the criminal case was only in respect of bouncing of the cheque and the acquittal of the appellant in the said case does not absolve him from the civil liability. He further contended that both the appellant as well as respondent No,2 being brothers inter se were equally liable and there is no question of shifting the liability of respondent No,2 upon the appellant. He finally argued that the appeal is not maintainable and is liable to be dismissed.
7. ' The suit was for the recovery of a total sum of Rs,25,65,000 i.e, Rs,18.65,000 being principal amount and Rs,7,00,000 being earnest money/damages. The suit was decreed for the following amounts along with interest. The decree was maintained by the first appellate court, however interest was declined:-
(i) Rs,15,65,000 admitted principal amount through preliminary decree which was maintained by the first appellate court;
(ii) Rs,3,65,000 remaining principal amount through final decree which was rectified by the first appellate court and reduced to Rs,3,00.000:
(iii) Rs,7,00,000 being earnest money through final decree which was maintained by the first appellate court.
8. ' The plaintiff/respondent No,1 in support of his claim examined himself before the trial court and reiterated the contents of the plaint. He deposed that 1882 grams of gold worth Rs,18,65,000 was handed to the appellant as well as respondent No,2 in 2004 but they failed to return the same. He further deposed that the defendants issued a cheque of Rs,2,50,000 towards the outstanding amount but the same was bounced, as such FIR was lodged against the defendant. He further deposed that dispute was brought before one Abdul Aziz who had good reputation in the market and the defendants had deposited the documents of their house with him as security. However, despite that the outstanding amount was not returned to the plaintiff/respondent No,l. He further deposed that he had suffered mental torture and also lost earnest money to the extent of Rs,7,00,000 due to non-refund of the outstanding amount by the defendants due to which his mother fell seriously ill and ultimately died in hospital. He further deposed that in 2004 four persons were working in this shop and at that time his monthly income was about Rs,1,00,000 to Rs,1,20,000.
9. The plaintiff/respondent No,2 also examined witnesses in support of his version. Even the appellant in his evidence did not deny the principal amount, however, he deposed that 30 grams gold worth Rs,3,00.000 was returned to the plaintiff. He also denied loss of earnest money having occurred due to non-refund of the outstanding amount. He also denied that any mental torture was caused to the plaintiff.
10. ' From the evidence adduced before the trial court, it is clear that the defendants viz. The appellant and respondent No,2 herein have not denied to have taken 1882 grams gold worth Rs,18,65,000 from respondent No,
1. They also admitted that the said gold was not returned to him except 300 grams gold worth Rs,3,00,000 which was returned through witness Abdul Qadir as well as Rs,50,000 in cash.
11. ' In his cross-examination respondent No,1 Mohammad Ashraf admitted. "It is correct that I had received gold worth Rs,3,00,000 from Abdul Qadir". However, he added "that the said gold was received before the disputed gold was handed over to the defendants." Likewise, witness of the plaintiff/respondent No,1 namely Nadeem Anis through whom the entire transaction between the plaintiff and the defendants took place. In his evidence deposed. "The defendant has returned gold amounting to Rs,3,00,000 to M. Ashraf." However, he appears to have exaggerated his evidence by saying. "The last transaction between the parties was done through me for 2100 grams of gold." and further, "At present 1800 grams of gold is still outstanding against defendants. The defendants had failed to return the amount for the remaining 1800 gram of gold." In his cross-examination he admitted. "It is correct that 30 tola of gold has already been returned to one Abdul Qadir towards the total amount. It is not in my knowledge that plaintiff has mentioned total gold as 1882 grams in plaint." Similarly another witness of respondent No,1/plaintiff namely Abdul Qadir Motiwala admitted in his cross-examination. "It is correct that 300 grams of gold has already been returned to the plaintiff." The appellant in his evidence too deposed. "My brother had arranged Rs,3,00,000 and the same was paid to Muhammad Ashraf through Abdul Qadir." In his cross-examination no suggestion was put to him regarding return of Rs,3,00,000 to respondent No,1/plaintiff. The defendants also examined D.W.1 Muhammad Saleem in their defence.
12. His evidence is very much material on this point. The relevant portion from his evidence is reproduced as under:- "I have been in jewelry business for last 30 years, defendants are relatives. On 20-12-2004 defendant lrfan came to me and informed me that he had taken golden jewellery from Ashraf through one Nadeem. And I have to give 30, tolas of gold to Ashraf. Irfan had also disclosed that the said matter may be reported to Qadir. Thereafter, I had given 30 tolas of gold to said Qadir and the defendant Irfan had given the payment to me."
13. ' No suggestion was put to this witness as to whether his statement regarding delivery of 30 tolas of gold to the said Abdul Qadir towards the outstanding amount to be paid to the plaintiff by the defendants is false or incorrect. In the circumstances, under the law his statement having not rebutted is to be accepted as true and correct.
14. ' Although the witness Nadeem Anis through whom entire transaction took place has admitted that the defendants had returned gold amounting to Rs,3,00,000 to respondent No,1 Muhammad Ashraf but he seems to have shown favour to the plaintiff by saying that the total transaction was for 2100 grams of gold which statement is contrary to the statement of other witnesses and even the plaintiff himself. From above, it is clear that, in fact, the defendants had returned gold worth Rs,3,00,000 out of the total outstanding amount of Rs,18,65,000 to respondent No,1 but the two courts below have miserably failed to take this aspect of the case into consideration, thus their findings to that extent suffer from misreading and non-reading of evidence.
15. ' So far as the plea taken by the defendants that apart from gold worth Rs,3.00,000 they also returned Rs,50,000 in cash is concerned, they have not produced any tangible evidence to prove such assertions.
16. ' Now I would deal the point of loss in the earnest money. The plaintiff in his evidence deposed that he had suffered mental torture and also lost earnest money to the extent of Rs,7,00,000 due to non- refund of the outstanding amount by the defendants due to which his mother fell seriously ill and ultimately died in hospital. He further deposed that in 2004 four persons were working in his shop and at that time his monthly income was about Rs,1,00,000 to Rs,1,20,000. In his cross-examination he admitted. It is correct that I have not filed any proof in support of my claim that my monthly income was Rs,100,000 to Rs,1,25,000 per month." Lie not produce any material to establish that in 2004 four persons were working in his shop. No written material regarding payment of salaries to the said four persons was produced by him. Even none of the said persons has been examined to corroborate the version of the plaintiff. Even his witnesses have not said a single word that four employees were working in the shop of the plaintiff or that he has suffered loss in the earnest money due to non-refund of the outstanding amount by the defendants. Of course witness Abdul Qadir in his examination-in-chief deposed. "..The plaintiff has badly suffered due to non-payment of said amount as the business of the plaintiff has failed and family life of the plaintiff has also suffered", however, in his cross-examination he admitted. "I cannot produce any documents in support of my claim that the business and family life of the plaintiff has suffered due to non- paym ent of remaining amount." The appellant/defendant in his evidence deposed. "...Plaintiff has not suffered any loss as he is only a broker and has no workshop. Plaintiff had not employed any person." In his cross-examination he denied the -suggestion put to him that the plaintiff had employed four persons at the monthly salary of Rs,3000 to 7000.
17. ' It is also very surprising that even the trial court did not bother to frame any, issue that the plaintiff had suffered loss in the earnest money. In fact, the issue was framed. "Whether the plaintiff suffered from mental torture due to the illness of his mother, who was hospitalized? " Very strangely without framing any issue the trial court decreed the suit, inter alia, for earnest money to the extent of Rs,7,00,000 with usual bank interest.
18. ' In view of above, I am of the humble opinion that the trial court as well as first appellate court have failed to consider above two aspects of the case i.e, return of Rs,3,00,000 C to the plaintiff by the defendants and lack of the evidence on the point of earnest money.
19. ' The upshot of above discussion is that instant appeal to the extent of challenging Judgment dated 16-3-2012 passed in Civil Appeal No,50/2009 arising from the preliminary decree is dismissed. However, the case is remanded back to the trial court with direction to frame issues in respect of above two aspects of the case and after affording proper opportunity to the parties to adduce their respective evidence and hearing their counsel, decide the matter afresh relating to remaining amount and the earnest money within shortest possible time preferably within three months from the date of receipt of this order.