ABDUL KADIR SHAIKH, J.-----These two Letters Patent Appeals are directed against the consolidated judgment of the learned Single Judge of this Court in two suits brought by the parties, being Nos. 214/59 and 42/60, the former by Dr. S. Jalil Asghar against Messrs Atlas industrial and Trading Corporation, a partnership firm of which Mubarak A.I Ahmed the defendant No. 2 is the Managing Partner; the latter filed by Messrs Atlas Industrial and Trading Corporation against Dr., Jalil Asghar. The suit brought by Dr. S. Jalil Asghar for the recovery of Rs. 1,16,850 has been decreed, whereas the second suit for the claim of Rs. 58,150 has been dismissed. The two decrees have led to the present two Letters Patent Appeals by the parties. These were heard together, as in fact were the two suits before the learned Single Judge, and it is only proper therefore, that both the appeals be disposed of by this consolidated judgment.
2. The case set up Dr. S. Jalil Asghar in the plaint of his suit was that by a contract dated the 8th of April 1959 between him and Mubarak A.I Ahmed, on behalf of Messrs Atlas Industrial and Trading Corporation, he agreed to work in collaboration with the defendant to procure and execute the order secured by the defendants from the Food Ministry of Government of Ceylon for the export to Colombo of 10,000 tons of Begmi rice under export bonus scheme, and for the material assistance given by him to the defendants in respect of the same order he was entitled under the said contract to a sum of Rs. 1,75,000 on the total shipment of 10,000 tons of rice. According to him this amount was payable by the defendants in proportion to the actual quantity of rice exported to Colombo and the earnings of the Bonus Vouchers in respect of each exported consignment. He asserted that in respect of the Bonus Voucher No. 1, he was entitled to receive Rs. 38,150 which amount he has in fact paid on various dates between 1st May 1959 and 19th June 1959, in respect of the Bonus Voucher No. 2, he was entitled to receive from the defendants Rs. 59,500 but they gave him only Rs. 20,000 the balance of Rs. 39,5U0 still being due against them. This balance amount and the remaining sums payable on Bonus Vouchers Nos. 3 to 5 not having been paid to him he laid the claim for the recovery of Rs. 1,16,850 from the defendants.
3. The defendants in their written statement took the plea of total denial of the execution of the contract dated the 8th April 1959 asserting that the plaintiff was practically unknown to them until about the commencement of April 1959, when he approached Mubarak A.I Ahmed, the defendant No. 2 and "represented himself as a person having very exceptional resources of influence with the persons connected with the Portuguese Embassy at Karachi. He claimed to be in a position to which he could vouch, with practical certainty, that he could secure a contract for the import of 10,000 tons of rice from Pakistan into the Portuguese possession of Goa, if he used all his resources.
The defendants further asserted that as the plaintiff gave out that he was in need of funds to make effective use of his contacts he persuaded Mubarak A.I Ahmed to advance him Rs. 4,000.00 on 1st May 1959, Rs. 5,000.00 on 14-5-59, Rs. 25,000.00 on 19th June 1959 with the categorical undertaking that these sums would be repaid or adjusted in his account as soon as he secured the order.
4. As to the agreement dated the 8th of April 1959 the explanation of the defendants was that "on 19th June 1959, the plaintiff appeared before the defendant No. 2 (Mubarak A.I Ahmed) with a typed document of which Annexure A (the agreement) appears to be a copy, purporting to be dated 8- 4-1959, which had been drafted by the plaintiff and typed under plaintiffs' instructions in the defendant's office. The defendant No. 2 had no previous knowledge of the plaintiffs' intention to prepare any such document, and was amazed at it. It purported to provide a payment of Rs.
1,75,000 to the plaintiff for the material assistance rendered by him in securing the above contract, referring to a contract with the Ceylon Government with which the plaintiff had never had anything whatsoever to do. The plaintiff explained that he had drafted the document, at the request of his friends, on whom he depended for assisting him in securing the contract from the Portuguese Government, because they insisted that there should be a document showing that the payments made by the defendants to the plaintiff were not in any way connected with any canvassing of business from the Portuguese Government, but for something entirely different. After some discussion, the defendant No. 2 believing that he was thereby merely assisting the plaintiff to secure the order at an early date, and in a moment of haste as well as of weakness, unfortunately agreed to sign the document and ordered the payment of sums as demanded by the plaintiffs".
5. The further plea of the defendants was that ultimately the promises given by the plaintiff did not materialize and they were entitled to the recovery of a total sum of Rs. 58,150 paid to the plaintiff:
6. It. Was on these allegations that the defendants sub--sequently bought Suit No. 42/60. For the recovery of the aforesaid amount from the plaintiff.
7. At the request of the parties the two suits were ordered to be tried together and the learned Single Judge framed several issues for the disposal of the controversy; but after the evidence of the parties had been recorded the learned Single Judge was of the opinion that some of the issues were overlapping, he therefore framed only three issues with the concurrence of the counsel of the parties. These are :-
(1) Whether the document, Exh. 12 was executed in the circumstances alleged by the plaintiff or in the circumstances alleged by the defendants?
(2) If the document, Exh. 12, was executed in the circum--stances alleged by the plaintiff, did the plaintiff render material assistance in securing the contract for the export of rice to Ceylon?
(3) Are the defendants entitled to special costs?
8. At the trial Dr. S. Jalil Asghar apart from his own statement did not examine any witness but Mubarak A.I Ahmed examined himself and produced three other persons, his son Iftikhar Ahmed, Sardar Muhammad and George Wong.
9. The learned Single Judge held that the parties had executed the contract dated the 8th April 1959 with full knowledge and open eyes, that the payments made to Dr. S. Jalil Asghar perfectly tallied with the method of payment prescribed in the contract, the defence of mistake or fraud in respect of the execution of the contract set up by Mubarak A.I Ahmed was therefore not proved.
The decision on Issue No. 1 thus went in favour of Dr. S. Jalil Asghar.
10. As to the question whether material assistance was given by Dr. S. Jalil Asghar to the defendants, the learned Single Judge was of the view that the defendants were bound by the several admissions made by them in the correspondence on this aspect of the case, which also supported the assertion made in the agreement dated the 8th April 1959 to the effect that the plaintiff had rendered material assistance in obtaining the contract for the export of rice. As to the payments made to Dr. S. Jalil Asghar of the various sums the learned Singe Judge held that after the receipt of the letter from Portuguese Embassy (Exh. 49-A) dated the 30th of May 1959 there remained no possibility of exporting rice to Goa and therefore Mubarak A.I Ahmed could not have held the sum of Rs. 29,150 on the 19th June 1959, in connection with securing the order from Portuguese Government. The learned Single Judge was also of the opinion that the excuse said to have been given by Dr. S. Jalil Asghar and alleged to have been accepted by Mubarak A.I Ahmed that the Portuguesy authorities asked for a document like the contract Exh. 12 dated 8th April 1959 was incredible on the face of it because the officers could be expected, if they were being bribed for the export of rice to Goa to devise means to conceal the payments made to them and not absurdly to connect the payments made to the plaintiff. Moreover if the secrecy about the payments to them was observed then the other document between the plaintiff and the defendants was useless.
11. In view of these findings, the learned Single Judge decided all the three issues in favour of Dr. S. Jalil Asghar and decreed the suit in favour of Dr. S. Jalil Asghar and decreed the suit brought by him and dismissed the one against him brought by Mubarak A.I Ahmed on behalf of his firm.
12. Before me the learned counsel appearing for Mubarak A.I Ahmed and his firm Messrs Atlas Industrial and Trading Corporation raised the following three contentions :-
(1) That the agreement Exh. 12 dated 8th April 1959, was without consideration as no material assistance was given by the plaintiff.
(2) That the agreement being against public policy was void in law.
(3) That the agreement was vitiated by fraud and undue influence.
13. In order to appreciate these contentions, reference to the case set up by the parties in their statements in Court is very relevant and may be summarized as under In his statement Dr. S. Jalil Asghar stated that in late January 1959 he came to know that the Government of Ceylon wanted to import Begmi rice from Pakistan and in order to utilize this opportunity and exploring the means of exporting rice to Ceylon, he came from Lahore to Karachi sometime on about 16th January 1959, and saw the High Commissioner for Ceylon 6 or 7 times in this connection. He then came to know that the Government of Ceylon had already approached the Government of Pakistan for the purchase of Begmi rice and the view of the Government of Pakistan also was that the deal should be on Government to Government basis. He therefore directed his efforts to induce the Ceylonese Government to buy the rice from private parties rather than through the Government of Pakistan. It was one of these occasions when he met the High Commissioner for Ceylon that he met Mubarak A.I Ahmed who also used to meet the High Commissioner for the same purpose. There was afterwards a meeting between the two at the Palace Hotel which gave rise to business talks during the course of which Mubarak A.I Ahmed persuaded him to withdraw from the competition and collaborate with him in inducing the Ceylonese Government to place the order with their joint venture. As to the efforts made in this behalf Dr. Jalil Asghar went on to say that he met the Foreign Secretary of the Government of Pakistan, Mr. M. S. A. Baig, and tried to pursuade him to agree to the proposal of permitting private parties to export rice explaining that the Government was not likely to suffer any loss because they would supply rice to the Government of Ceylon at the same price at which they purchased it from the Government of Pakistan. To the High Commissioner for Ceylon it was explained that fifty per cent. Of the bonus vouchers that would be issued by the Government of Pakistan would be utilized in the import of goods from Ceylon and therefore the Government of Ceylon would stand to benefit by purchasing rice from private patties rather than from the Government of Pakistan. He then advised Mubarak A.I Ahmed to go to Ceylon to persuade the Ceylonese Government to purchase rice from private parties and not directly from the Government of Pakistan. He produced a letter received from Iftikhar Ahmed son of Mubarak A.I Ahmed in which he was requested to make certain efforts in connection with the transaction and he also produced a telegram received by him from Mubarak A.I Ahmed from Colombo expressing gratitude for the expeditious action taken by him. He explained that he had met the Foreign Secretary as well as the High Commissioner for Ceylon in Pakistan and also the officers of the Food Ministry in order to achieve this object.
14. Giving further details of the developments, he went on to say that the execution of the contract had to await the arrival of the Food Commissioner of the Government of Ceylon, who reached Karachi on the 5th of March 1959. He produced the correspondence in this regard showing that Mubarak A.I Ahmed had been keeping him informed of the developments and also of the date of the visit of Food Commissioner of Ceylon to Pakistan and Lahore. According to him, with all the efforts and the material help that he rendered to the defendants the Government of Ceylon placed the order for the export of rice to Ceylon on the 15th of March 1959. Thereafter, according to him, the contract dated the 8th April 1959, was executed by him and the defendants under which he was entitled to receive the total sum of Rs. 1,75,000.
15. He asserted that pursuant to the first transaction of the export of rice he received 3 sums, Rs.
4,000 on 1-5-59, Rs. 5,000 on 14-5-59 and Rs. 29,150 on 19-6-59, and as to the second consignment which consisted of 2,400 tons he received only Rs. 20,000 on the 14th July 1959. According to him he was to receive the total sum of Rs. 59,500 for this consignment but the defendants failed to pay not only the balance of this consignment but also for the rest of the total sum thus due and payable to him.
16. As against this the version given by Mubarak A.I Ahmed at the trial of the suit was that the Food Commissioner Ceylon happened to pass through Karachi on the 26th November 1958, on his way to South America, and on receiving this information he and his son saw him at the Karachi Airport and discussed business transactions with him. The Food Commissioner during these talks told him that he wanted to import rice to Ceylon. He therefore addressed him a letter on the 27th November 1958. This was followed by a cable from his agent dated the 26th December 1958 which conveyed the information that Ceylonese Government at that time was in need of 50,000 tons of rice. To the Ceylonese Government he quoted --49 per ton F. O. B. Karachi for Begmi rice and for Permal rice he gave the quotation at --70 per ton F. O. B. Karachi. At that time as rice could not be exported out of Pakistan, he requested the Food Ministry to issue a notification as early as possible for the export of rice as well as of the fixation of the price. He was given assurance that the Government was prepared to do so and a press communique in result was issued on 31st December 1958. On 6th January 1959, he was informed by the Food Commissioner of Ceylon of his visit to Pakistan and that he wanted to discuss certain matters with him specially about the export of Kangni rice. According to him Ceylonese Government a as very anxious to import rice and other foodgrains from Pakistan because they were dependent on India for this, and their relations with that country were not good.
For ibis purpose they were prepared to give several concessions. He said that the Food Ministry of the Government of Pakistan was also responsive. On the 11th of January 1959 he had discussions with the foreign Secretary and communicated the gist of it to the Food Commissioner of Ceylon.
Until that time, however, the Ceylonese Government had not made up its mind as to what it wanted to import from Pakistan.
17. With regard to further efforts made by him he went on to say that until he left for Ceylon on 3rd February 1959, the Ceylonese Government had not made up its mind for importing foodgrains, nor had the Ministry of Food Government of Pakistan, decided to export them. He, however, met Mr. Baig, the Secretary, Ministry of Foreign. Affairs on the 30th of January 1959 to inform him of his departure for Ceylon and to obtain an introductory letter from him, if possible. It was during this meeting that he for the first time met Dr. S. Jalil Asghar, and Mr. Baig introduced him as "a man of wide contacts and experience and could be helpful to me in that venture." This position Dr. Jalil Asghar also asserted and on the next day he and his son went to see him at the Palace Hotel to pay a courtesy can.
18. Mubarak A.I Ahmed then went on to explain the telegram Exh. 18 sent by him to Dr. Jalil Asghar from Ceylon. He stated that he came to know in Ceylon that the Ceyldhese Government had committed itself for the import of rice from China, moreover the Ceylonese High Commissioner at Karachi had also written a letter to his Government stating that the Government of Pakistan would prefer to have a deal in respect of the export of rice at Government level. Faced with this situation, he did not know what to do and therefore he sent a copy of the telegram which he sent to his office, to Dr. Jalil Asghar, the idea being that his office at Karachi should consult the Foreign Secretary and then contact the Ceylonese High Commissioner. He denied that the object of sending the copy of that cable to Dr. Jalil Asghar was to show his gratitude to him, and asserted that in fact it was the gratitude he wanted to express to Mr. Baig, the Foreign Secretary, for having obtained reduction in the export price fixed by the Government of Pakistan. As to his efforts at Colombo, he stated that he visited the Pakistan High Commissioner in Ceylon as well as the authorities of the Food Ministry of the Government of Ceylon and in order to achieve his object of having a deal with the Ceylonese Government, he suggested that the Food Commissioner of Ceylon should come Pakistan, which visit did in fact materialise on the 5th of March 1959. He, however, reached Karachi earlier on the 16th February 1959 and met the Food Department officials a Karachi as well as the Foreign Secretary. On the arrival of the Ceylonese Food Commissioner in Karachi on the 5th of March 1959, he intensified his activities and during this period the Ceylonese High Commissioner met various officers of the Government of Pakistan, namely, the Commerce Secretary, Food Secretary etc. The Ceylonese Food Commis--sioner, he said, was however disappointed as the Government of Pakistan would not agree to the reduction of the selling price fixed for the export of rice from --45 to --18. He therefore postponed his departure and attended the meeting on the 10th of March 1959, which was attended by the Commerce Secretary, Food Secretary, Foreign Secretary and the Joint Secretary Finance. It was in this meeting that it was finally agreed that the selling price of rice would be reduced to --43 per ton F.O.B. And the news of the deal was published in the Dawn the next day the 11th March 1959, a copy of which was produced as Exh.
55. Mr. Mubarak A.I Ahmed then explained that he then entered into the contract for the export of rice with the Ceylonese Government on the 15th of March 1959.
19. He explained that it was afterwards towards the end of March or early April 1959 that Mr. Jalil Asghar met him for toe first time in his office with the proposal of doing export business.
He told him that he had friends in the Portuguese Embassy and other places and requested him to join as a financier in the contract he expected to secure for the export of 10,000 to 15,000 tons of rice to Goa.
20. Mubarak A.I Ahmed then explained how the contract dated the 8th April 1959, was executed. He went on to say that on 13th or 14th May 1959, Dr. Jalil Asghar told him that he was badly in need of Rs. 5,000 in connection with the venture of the export c f rice to Goa. He therefore gave him this amount. In the middle of June 1959, Dr. Jalil Asghar told him that he was practically certain of getting the order for the export of rice to Goa provided he had Rs. 50,000 to spend in that connection. He therefore asked him for this amount which he declined but later on he reduced the figure to Rs. 25,000 saying that even that much amount would suffice. On the next day Dr. Asghar confronted him with the written document dated the 8th April 1959, which he was amazed to see because he was not given any previous reference to any transaction of the type quoted in the document. He inquired from Dr. S. Jalil Asghar "as to what all that was". This is what Mubarak A.I Ahmed went on further to say : he told me that he had drafted that document at the request of his friends who were helping him in that venture; his friends did not like that the payments made by us and received by the plaintiff or his friends should be considered in any way to be connected with the Portuguese venture; they wanted that the connection of the money should be shown with something else. On the same day, that is to say, on the 19th of June 1959, the plaintiff begged of me to help him at that crucial moment because the completion of the entire transaction depended on that. He offered to take Rs. 29,150 instead of Rs. 25,000 and said that this was to make the transaction plausible. In that moment of haste, helplessness, weakness and thoughtlessness I succumbed to the pre sure of the plaintiff and paid the amount to him." According to him all these amounts were paid to Dr. S. Jalil Asghar in connection with the proposed transaction with the Portuguese Government for the export of rice to Goa, which, however, failed as the subsequent development revealed, and this was the basis of his claim for the recovery of Rs. 58,150 from Dr. S. Jalil Asghar.
21. Both Dr. S. Jalil Asghar and Mubarak A.I Ahmed gave their own version as to the transaction leading to the execution of the contract in suit, both were cross-examined at great length, with the result that on each and every crucial assertion there is a controversy. In this maze, there are certain factors, however, which stand out very clearly and these are as follows
(a) The Statement of Mubarak A.I Ahmed that he was introduced to Dr. S. Jalil Asghar on the 30th January 1959, by Mr. Baig, the then Foreign Secretary Government of Pakistan, in his house, appears to be correct. Dr. S. Jalil Asghar in categorical words admitted this interview further saying that he was on very friendly terms with Mr. Baig. In his own words he knew Mr. Baig very well, he was in Cambridge' with him and he had stayed at his house a number of times.
(b) There is nothing on record to suggest that before the month of February 1959, Dr. S. Jalil Asghar by himself had made any efforts with regard to the export of rice, or in fact of any other commodity to Ceylon. On the contrary, there is ample proof of documentary nature that Mubarak A.I Ahmed had been in contact with the Government of Pakistan and also the Government of Ceylon in connection with possibilities of export of rice to Ceylon. The first letter in the series placed on record is Exh. 56 dated the 9th December 1958, written by the Government of Ceylon to Messrs Iftikhar Ahmad & Co. The partnership firm of Mubarak A.I Ahmed. In this letter the Food Commissioner of the Government of Ceylon acknowledged the receipt of the letter of this firm, dated the 27th November 1958 on the subject of "Basmatti" rice stating that he shall revert on this matter in due course. By the letter dated the 12th December 1958, Exh. 45 the firm requested the Government of Pakistan to release sufficient quantities of Basmati rice and also Parmal and Begmi rice to enable them to forward the samples to at least 15 parties for export. Yet another letter dated the 6th January 1959, from the Food Commissioner, Government of Ceylon was produced as Exh. 59 in which the Food Commissioner, Ceylon informed Messrs Iftikhar Ahmad & Co. As to his likely visit to Karachi and also made certain inquiries regarding the quality of rice because the Ceylon Government was interested in purchasing 50,000 tons of rice provided the prices were competitive.
Subsequently two telegrams Exhs. 60 and 61 were addressed to this firm by the Ceylonese Government showing the interest of the Ceylonese Government for the purchase of Kangni as well as Begmi varieties of rice.
(c) In regard to the correspondence with the Pakistan Government during this period, Mubarak A.I Ahmed produced letter dated the 30th January 1959, Exh. 41 from the Food Ministry addressed to Messrs Iftikhar Ahmad & Co. To the effect that the Ministry of Food was deauq directly with the parties who were interested in the export of rice but it was communicated in this letter that "the export price for different varieties have already been advertised and if you have any definite offer, you are advised to present it to Food Ministry, supported with required documents and earnest money."
A11 these documents do clearly indicate that Mubarak A.I Ahmed was in touch with the Government of Pakistan as well as the Government of Ceylon for the transaction in which he may possibly be able to export rice to Ceylon.
(d) On the other hand, except for the bare statement of Dr. S. Jalil Asghar that on coming to know at Lahore that the Government of Ceylon was interested in the import of" rice from Pakistan he came to Karachi for the possibility of exploiting the opportunity, there is nothing else to suggest that he did anything on his own in connection with the export of rice to Ceylon. Admittedly he was employed as Deputy Regional Election Commissioner for West Pakistan from the year 1957 to the middle of 1958. Before that except for one transaction of import of certain quantity of timber from India, he had no export business to his credit. Not only this but even after coming into contact with Mubarak A.I Ahmed on or about the 30th of January 1959 there is nothing on the record of the case to suggest that he did anything on his own behalf in connection with the export of rice from Pakistan. The first indi--cation of the contract between the parties in respect of the transac-- petition, that is of a reliable nature, is the telegram from Colombo Exh.18, dated the 7th of February 1959, from Mubarak A.I Ahmed informing Dr. Jalil Asghar that he had reached there rather, late as the Ceylonese Government had made commitments for the import of rice from China and Burma, and that the Ceylonese High Commissioner in Pakistan had informed his Government that the Government of Pakistan was interested in exporting rice on Government to Government basis. In this telegram he requested Dr. Jalil Asghar to consult "Sikoo Bhai". i.e. Mr. Baig, the then Foreign Secretary, and also contact the Ceylonese High Commissioner to ensure export through ordinary trade channels. On the same day Iftikhar Ahmad the son of Mubarak A.I Ahmed wrote to Dr. Jalil Asghar letter Exh. 9 to the effect that: "The fact is that my father wishes Sikandar A.I Baig to be consulted, after which I can go down and talk to the Ceylonese High Commissioner, Mr. Muhammad Mahrouf. As you know Mr. Baig much better than myself while at the some time I am rather afraid of him, I would be grateful if you would possibly meet him in this matter, though I know he must be extremely busy while the Duke of Edinburgh is here."
(e) It appears that on receipt of the telegram and the letter Dr. S. Jalil Asghar did something for which Mubarak A.I Ahmed had reason to be grateful for he sent him a cable Exh. 17 expressing that he was "deeply grateful for the expeditious action taken by him in contacting everyone:" Mubarak A.I Ahmed also sent another cable from Colombo on the 14th February 1959, produced as Exh. 19, requesting Dr. S. Jalil Asghar to do some job in connection with the rice deal and also to ensure that the competiting firms do not come to know of the Ceylonese Government's discussion with the food Ministry at Karachi and of the reduction in the export price of rice. He also sent another telegram Exh. 20, the same day, the 11th February 1959, expressing, "Deeply grateful momentous assistance rendered by you. Assure you shall never forget."
(f) Immediately after this telegram Mubarak A.I Ahmed came to Pakistan and the documentary evidence that has any reference to the contract in question does clearly indicate that Mubarak A.I Ahmed was keeping Dr. S. Jalil Asghar informed of the developments in connection with the export of rice and also of the arrival of the Food Commissioner from Ceylone however, all this correspondence and the evidence in the case is that Dr. S. Jalil Asghar did nothing else except to have a drink with the Food Commissioner at Hotel Faletti's at Lahore when Mubarak A.I Ahmed introduced the Food Commissioner to him and this meeting was also arranged by Mubarak A.I Ahmed.
22. In view of the conflicting assertion made by the parties, which are also contrary to the documentary evidence in the shape of correspondence exchanged by them, we would rely on the documentary evidence brought on the record rather than the oral assertions of the parties. This we feel is the only safe course to adopt because the documents on record have been admitted and unless admissions made by the writes are sufficiently explained we rather not rely upon their oral denials to the contrary.
23. The documentary evidence rather than the oral testimony being the basis on which we would act, we have no hesitation in reaching the conclusion that the assertion of Mubarak A.I Ahmed in the written statement filed in Suit No. 214 of 1959 brought by Dr. S. Jahl Asghar, and in the plaint in his own suit, to the effect that until about the com--mencement of April 1959, Dr. S. Jalil Asghar was practically unknown to him is absolutely false. He himself admitted in his own statement in Court that he had met Dr.' S. Jalil Asgbar in the house of the then Foreign Secretary Mr. Baig on the 30th January 1959. Not only this, but he further admitted that he had got, a to him on the next day of this meeting which would be 31st of January 1959 in which they had few drinks with each other at the Palace Hotel where Dr. S. Jalil Asghar was then staying. It is also difficult to believe that the total sum of Rs. 58,120 that he give to Dr. S. Jaiil Asghar was in connection with quite another deal which was proposed by Dr. S. Jalil Asgbar namely, the procurement of export business of rice to Goa, which according to the allegations of Mubarak A.I Ahmed, Dr. S. Jalil Asghar was to obtain on the strength of his friendly connections in the relevant quarters in the Portguese Embassy. In this respect we respectfully agree with the view of the learned Single Judge on the original side. It would be noticed from letter Exh. 49/A dated the 30th May 1959, that there was no possibility of exporting rice to Goa and this was amply clarified in the subsequent letter Exh. 46 dated the 25th August 1959, in which it was stated that Portugal was not interested in the import of rice at that time. The learned Single Judge was right in the vieA that he took that "As there were no prospects between these two dates of exporting rice to Goa, the defendants could not pay Rs. 29,150 on the 19th of June 1959, for that purpose. On the other hand, as admitted by defendant No. 2, that amount tallies perfectly with the dues payable by the defendants to the plaintiff in terms of the contract for the deal with Ceylon. Apart from this the excuse said to have been given by the plaintiff and alleged to have been accepted by the defendants, that the Portguese officers asked for a document like the contract Exh. 12, is incredible on the face of it. The officers could be expected if they were being bribed for the export of rice to Goa to devise means to conceal the payments made to them but not absurdly to connect the payments made to the plaintiff with Ceylon. Moreover, if secrecy about payments to them was observed, then every document between the plaintiff and the defendants was useless. I enquired from the learned counsel for the defendants that if the defendants knew that they were executing a bogus document then why did they not take a letter or chit from the plaintiff to the effect that it was not meant to be used against the defendants. In reply, counsel used the analogy of a simple wayfarer to which reference has been made above in paragraph 14. 1 may note further that it is difficult to believe, without a writing of the plaintiff, that Rs. 58,150 were advanced to him for bribing the officers because, firstly, Dr. S. Jalil Asghar could not have agreed to spend that amount for the benefit of Alas Industrial Trading Corporation and in the event of his success in the venture to get it adjusted, as alleged in paragraph 6 of the Plaint in Suit No. 42 of 1960, towards his own remuneration; secondly, he could not have agreed to refund the money so spent by him as a simple loan to himself in case he failed in the venture. He would have been a fool to do so, which according to his opponents in these proceedings, he was not."
24. We have no hesitation in agreeing with these obser--vation of the learned Single Judge. The details of the payment of the sums totalling Rs. 58,150 also correspond to the transaction of the export of Begmi rice under Bonus No. 1, as part of the agreed payment of the total sum of Rs.
1,75,000 Dr. S. Jalil Asghar in this behalf. The execution of the contract Exh. 12 dated 8th April 1959, was not denied by Mubarak A.I Ahmed although he stated that the circumstances in which he put his signature on this document were totally different. The explanation given by him is very interesting a part of it has been produced in a paragraph above. To a question put to him by the Court he admitted that be knew that he was executing a document which could be used against him, but he explained that such risks are sometime taken in business and he could not imagine that a man like Dr. S. Jalil Asghar would use that document against him, he having executed it only to help him as a friend because he was introduced to him by a highly esteemed friend of his. To another question as to how he signed the contract dated the 8th of April 1959, on the 19th June 1959 knowing all along that the date mentioned in the document .Was not correct, he admitted that he knew that the document was dated 8th April 1959, and that he was signing it on 19th June 1959, the explanation only being that it was a foolish act which he had done in his moments of weakness.
25. We find it hard to believe the explanation put forward by Mubarak A.I Ahmed. The payments that he had made to Dr. S. Jahl Asghar, as stated above, tallied with the transactions set out in the contract Exh.
12. The Court asked the following questions further from him "Q. Did you enquire as to bow the figure of Rs. 29,150 was going to make the transaction appear more convincing to the friends of the plaintiff?
His answer was : A. The first consignment under the Venture of rice export to Ceylon had gone and the amount of Rs.
29,150 fitted perfectly with the amount that was payable to the plaintiff in terms of Exh. 12.
Q. Did you not at that time think that this coincidence was a dangerous thing to you?
A. It was for me a moment of haste, weakness and thoughtlessness, as a result of which I succumbed to the pressure of the plaintiff:"
It is difficult to swa llow the replies given by Mubarak A.I Ahmed.
26. The crucial point, that remains to be decided however is whether Dr. S. Jalil Asghar did infact, render any material assistance in respect of the transaction to Mubarak A.I Ahmed or his firm. This assertion was totally denied by Mubarak A.I Ahmed, and the case now set up by the learned counsel appearing on his behalf is also the same, with the addition that the assistance, if any, that Dr. S. Jalil Asghar gave was no more than the use of his friendly connections with the then.Foreign Secretary, Mr. Baig.
27. In order to appreciate this contention the first question is whether Dr. S. Jalil Asghar had rendered any material assistance in the matter of the procurement of the contract for Mubarak A.I Ahmed's firm as indicated in the contract Exh. 12 itself. In view of the fact that rendition of material assistance was totally denied by the defendants in their written statement, the onus of proof in this behalf lay heavily on Dr. S. Jalil Asghar. An issue in fact was struck on this point and it is-"whether the plaintiff did render any material assistance in securing the contract for the export of rice to Ceylon"?
28. In order to show that he had rendered material assistance, Dr. S. Jalil Asghar relied upon certain admissions made by the defendant in the contract itself as wall as in the correspondence.
29. Before referring to the documentary evidence, let us see what he himself said in Court. To be fair to him we may reproduce what he actually said in this connection ---I agreed to the proposal made by Mubarak A.I Ahmed, and I at once commenced working for that object. In this connection I saw officers of the Food Ministry of the Government of Pakistan; I explained to the High Commissioner for Ceylon the benefits which that Government was likely to derive if purchases were made from private sources, and I pointed out to him that fifty per cent. Of the bonus vouchers, which were going to be issued, could be utilized for importing Ceylonese goods into Pakistan. The Government of Pakistan was reluctant to agree to the proposal made by me---------I came to know that the Government of Pakistan were of the view that as they were dealing with a foreign Government the Ministry of Foreign Affairs of the Government of Pakistan will have the final say in the matter. I, therefore, saw the Foreign Secretary of the Government of Pakistan. Mr. M. S. A. Baig was the Foreign Secretary at that time. I made efforts to induce him to agree to my proposal. I explained to the Secretary that the Government was not likely to suffer any loss if the exports were allowed to be made by private parties, and that the private parties would accept the bothera--petition of keeping themselves informed of arrivals and departures of ships.
My proposal to the Government of Pakistan was that I would supply rice to the Government of Ceylon at the same price at which I purchased it from the Government of Pakistan and that the Government of Pakistan would be able to earn the same price which it would earn if it were exporting by itself. At the time of making these efforts with the Government of Pakistan, and the Secretary of the Ministry of Foreign Affairs, I was working on behalf of Mubarak A.I Ahmed and his firm---------.I received the letter, Exh. 9, from him in February 1959. He had requested me in that letter to make efforts with Mr. Baig for achieving the object, I, therefore, saw Mr. Baig on the day on which the letter was received by me. It was the 7th of February 1959. He had requested me in the letter to communicate the result of my interview over the phone, but actually he came and saw me. I told Iftikhar that Mr. Baig had informed me that he had consulted the Ceylonese High Commissioner and advised the Ministry of Food of the Pakistan Government that the export should be made not as between Government and Government but in private sector----------------- -..The reference in the cable, Exh. 18 to Maroof was to the High Commissioner of Ceylon in Pakistan.
His full name is Muhammad Maroof. I saw him also after receiving the cable. I saw the officers of the Food Ministry also at that time. I was communicating the results of my interview to Iftikhar Ahmed with the object that he may in turn communicate them to his father in Ceylon------..A day or two after the date of the cable, Exh. 19, Mubarak A.I Ahmed arrived in Karachi. After his arrival too I continued my efforts for the common object. After making sure that the object had been achieved, I left for Lahore in the end of February 1939.---
30. Afterwards the Food Commissioner, Ceylon, came to Pakistan and Mubarak A.I Ahmed accompanied him to Lahore. There is however nothing on record to show that Mr. Jalil Asghar did anything afterwards which could be said to be a matter of material assistance in securing the contract. In his own words "I did not know what places Mubarak A.I Ahmed took the Food Commissioner in Lahore. I had a drink with the Food Commissioner in the Felettie's at Lahore. I did not go with him to any place in Lahore and I do not know to what places he had gone and for what work".
31. It would be seen from the above that what Dr. S. Jalil Asghar himself asserted in respect of the material assistance that he gave to Mubarak A.I Ahmed or his firm was that he met, the officers of the Ministry pf Food Government of Pakistan the Foreign Secretary to the Government of Pakistan, Mr. S. A. Baig who was his friend, and the High Commissioner of Ceylon in Pakistan. The contention of Mr. Z. H. Lari, the learned counsel for Mabarak A.I Ahmed was that the fact is that except for using his friendly connections with Mr. S. A. Baig, the then Foreign Secretary, to help Mr. Mubarak A.I Ahmed in respect of the procurement of the contract in question as Dr. S. Jalil Asghar did nothing else. This contention has great force. Except for naming the Foreign Secretary Mr. S. A. Baig, Dr. Jalil Asghar did not mention the name of any other official of the Government of Pakistan whom he contacted. So far as the Ceylonese High Commissioner in Pakistan is concerned, it is clear on the record that he did nothing to bring about the contract in suit; it appears on the contrary that he was not favourably inclined to the import of rice into Ceylon except on Government to Government basis. It would be noticed that the contract was executed after the Ceylonese Food Commissioner came to Pakistan. There could be no doubt that he came to Pakistan because of the efforts made by Mubarak A.I Ahmed in going over to Ceylon and persuading the Ceylonese Government there that the import of rice in that country through private channels would be more beneficial than the import on Government to Government basis. The other officials of consequence that could be concerned in bringing about a change of policy were the Secretaries of the concerned Ministries of the Government of Pakistan and the other officials whom the Ceylonese Food Commissioner met in Pakistan. During the visit of the Ceylonese High Commissioner to Pakistan Dr. Jalil Asghar did noting except to meet him over a drink in the Faletti's Hotel at Lahore. This is in fact admitted by him.
Surely it was Mubarak A.I Ahmed who went along with the Ceylonese Food Commissioner from place to place and made all the efforts in persuading both the Government of Pakistan and the Ceylonese Government to the export of rice from Pakistan through private channels. It is further clear oil the record that the Foreign Secretary of the Government of Pakistan had a great say in the matter. In the words of Dr. Jalil Asghar "the Government of Pakistan were of the view that as they were dealing with a foreign Government, the Ministry of Foreign Affairs of the Government of Pakistan will have the final say in the matter" He admitted that the Ministry of Foreign Affairs had advised the Food Ministry that the Ceylonese Government wanted to buy rice through private parties and the appellants were the parties. On his own showing Mr. S. A. Baig the then Foreign Secretary was on friendly terms with him. The words of Iftikhar Ahmad son of Mubarak A.I Ahmed in his letter to Dr. Jalil Asghar may again be usefully reproduced "The fact is that my father wished Sikander Baig to be consulted, after which I can go down and talk to Ceylonese High Commissioner."
32. We are therefore clearly of the view that the letters and telegrams that Mubarak A.I Ahmed then wrote to Dr. Jalil Asghar expressing gratitude were for the use of the friendly contacts that Dr. Jalil Asghar had with the then Foreign Secretary and nothing else, because there is nothing on the record to establish satisfactorily that Dr. Jalil Asghar had done anything beyond it.
33. The question then arises whether what Dr. Jalil Asghar did, which we have held to be the only assistance that he gave, can be considered to be opposed to public policy so as to affect the contract in suit. It has been the rule that any contract is illegal which tends to corruption in the administration of the affairs of the nation. A familiar example of a transaction offensive to this principle is a contract for the buying, selling or procuring of favours from the public officers. It is obvious, that all such contracts must have a material influence to diminish the respectability, responsibility and purity of public officers, and to introduce a system of official patronage, corruption anal deceit wholly at war with the public interest. These words we have in fact borrowed from the case of Blachford v. Prestor ((1799) 8 T R 89).
34. In the case of Parkinson v. College of Ambulance ((1925) 2 K B I), it was held that an agreement to induce a person who has access to persons of influence to use his position to procure a benefit from the Government is contrary to public policy.
35. In another English case the sale of recommendation for money in respect of an application for Beer House Licence was held to be void.
36. In another case reported as Monteriore v. Monday Motor Components Company, Limited ((1918)
2 K B 241) it was observed "It is contrary to public policy that a person should be hired for money or valuable consideration to use his position and influence to procure a benefit from the Government, and contract for that purpose is therefore illegal and void."
"Where it appears from the evidence during the hearing of a case that the contract sued on is contrary to public policy it is the duty of the Judge to take the objection that the contract is illegal and void."
37. The High Court of Nagpur in a case reported as Chhatra P.I v. Fundilal ((1910) 8 1 C 1117) observed "The question of public policy is one of law and even where the facts have not been fully pleaded by the parties, the Courts will deduce them from the evidence, and apply the doctrine of public policy."
The High Court of Calcutta held in the case of Manindra Chandra Nandi and others v. Assini Kumar Acharjya (AIR 1921 Cal. 185) that ---It is contrary to public policy to induce public officers to use their position and influence to procure a benefit.---
38. An agreement of this character hold out to inducing the public officers to act with partiality or from corrupt motives or to bias them in the discharge of their official duties, such conduct, if tolerated, would sap the foundation on which official honesty rests and legalize temptations which could lead away from the path of rectitude many an official who, without such inducements, might perform their duty. These principles are indisputable guidelines in any organized society but in a country like ours these must be strictly enforced. The place where public duty is performed is meant to be a hallowed place; therefore the foot pace and the precincts thereof are to be preserved, from scandal and corruption.
39. From the evidence on record we are clearly of the opinion that the material assistance which was the consideration of the contract in suit was nothing else but the use that Dr. Jalil Asghar had made of his friendly connections with the then Foreign Secretary, Mr. S. A. Baig, and this being opposed to public policy, the contract in suit is void.
40. It was very vehemently contended by the learned counsel appearing for Dr. Jalil Asghar that the appellants are not entitled to take this new plea, namely, that the contract in suit was void being opposed to public policy, for the first time in this appeal. No doubt the plea was never taken before, it was raised for the first time during the arguments, but it is well settled that a party is entitled to raise a new plea even at the appellate stag;, if it can be founded on the facts already proved on the record. It would be noticed that the burden was on Dr. Jalil Asghar to prove that he did in fact render material assistance in securing the contract for the export of rice to Ceylon. This was issue No. 2 in this suit. If on the facts shown by him it is proved that the material assistance he gave was only the use of his friendly relations with the then Foreign Secretary to the Government of Pakistan, the decision by the Court as to the effect of such use if that be the consideration of the contract in suit, is inevitable.
41. On the view we have taken above we allow the L. P. A. No. 133/63, and in the result reverse the decree passed in Suit No. 214/59. Mr. Z. H. Lari the learned counsel for the appellants had stated at the Bar that in case he succeeded in this appeal, he would not press L. P. A. No. 134/63. In view of his admission, we dismiss L. P. A. No. 134/63. In the circumstances there will be no order as to costs.
ANWARUL HAQ, J.----I entirely agree with the judgment proposed to be delivered in this case by my learned brother Abdul Kadir Shaikh, J. But would like to add a few words of my own to reinforce to conclusions reached by him. It is clear that the defendant Mubarak A.I Ahmed did not state true facts regarding the execution of the contract dated the 8th of April 1959, but his dishonest stand does not, in any manner, alter its true nature. From the statement of the plaintiff as well as from the facts proved or admitted on the record, it is abundantly clear that the material assistance mentioned in the contract, on which the plaintiff has based his claim, was nothing but the use of his influence and contacts with persons in high authority, particularly the then Foreign Secretary to the Government of Pakistan. The exercise of such influence, or the use of such contacts, for monetary considerations must clearly be held to be against public policy in all systems of civilized and clean administration. The need for emphasizing and reiterating this principle was never greater in Pakistan than during recent years when unfortunately corruption in its various forms assumed ugly proportions. No Court should be a party to the enforce--ment of a contract which seeks to exploit such contacts and influence in official quarters for personal gain. Such a contract is clearly illegal, in terms of section 23 of the Contract Act, as being opposed to public policy.
2. Mr. Gindu Mal, the learned counsel for the plaintiff, took pains to elaborate the point that the term "public policy" is hardly amenable to a precise definition by the Courts and, therefore, it would be highly unsafe for us to declare the contract void on grounds of public policy, as requirements of such policy change from time to time, and many transactions would be upheld today which in a former generation would have been avoided as contrary to the supposed policy of the law. While there can be no quarrel with the general proposition advanced by the learned counsel, yet it is clear that whatever the change in the concept of public morals the hiring of a person for money or valuable consideration so as to use his position and influence in official quarters for procuring monetary benefit for a third party, must continue to be regarded as being against public policy. We have all witnessed the immense public injury caused in this country by such influence-pedaling.
3. It is true that this plea was not specifically raised on behalf of the defendants in the pleadings or at any stage during the trial, and it has accordingly been vehemently contended on behalf of the plaintiff that it should not now be permitted to be raised. Mr. Dingu Mal referred us to Ha/1 Abdullah Khan v. Nisar Muhammad Khan and others (PLD 1959 Pesh. 81) and Masud Jilani v. Muhammad Ibrahim Miraj-ud-Din (PLD 1962 Lab. 281) in support of his sub--missions in this behalf. In the first- mentioned case a Division Bench observed that to allow questions of law or fact to be raised in appeal for the first time would clearly prejudice the other party and thus defeat the ends of justice.
It went on to add that "the objection to the maintainability of the suit or whether a contract is void or voidable, must be raised in the written statement, and if it is not so raised, it could not be allowed to be raised for the first time in appeal". In the second case it was similarly held that a defendant could not be allowed to take up the plea of the illegality of the contract at the appellate stage, as section 23 of the Contract Act raised a presumption of legality about every consideration, and the burden lay on the defendant to establish the illegality of the contract by placing the relevant material on the record during the trial.
4. The rule laid down in these two cases cannot be regarded as exhaustive or conclusive, for the reason that where the new point raised is a pure question of law, not involving any fresh factual investigation, the Courts have been generally inclined to the view that such a question should be permitted to be argued in appeal even though it was not agitated during the trial (See AIR 1947 Lah. 185, PLD 1957 Lah. 538, PLD 1958 Dacca 26, PLD 1961 Lah. 293, PLD 1961 Dacca 79, PLD 1964 Kar. 61, PLD 1967 Dacca 216 and PLD 1965 SC 690). Apart from this general proposition, I find that on the specific question of the illegality of the contract on account of its being opposed to public policy the weight of authority appears to be in favour of permitting such a question to be raised for the first time even at the appellate stage, the reason being that no Court should enforce an illegal contract, if the illegality can be deduced from the evidence brought on the record See AIR 1923 Mad. 626, (1918) 2 K B D 41 and 8 1 C 1117.
5. I consider, therefore, that on the facts and circumstances of this case we are justified in permitting the defendants to raise the question of the legality of the contract during the appellate stage and we must hold that on the evidence already on the record the contract has to be declared to be void as being opposed to public policy and, therefore, unenforceable through a Court of law. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.