' IRFAN SAADAT KHAN, J.---This High Court Appeal has been filed against the judgment and decree dated 4.6.1996 and 8.7.1996 respectively passed by the learned Single Judge in Suit No,712 of 1981 filed by the respondents against the appellants seeking decree for recovery o4 6,88,461 kilogram of M.S. Scrap or in the alternative damages for an amount. Rs,30,00,000/-.
2. Briefly stated, the facts of the case are that the Respondent No,2 advertised a public notice in Daily MASHRIQ dated 23.11.1979 for sale of M.S. Scrap and other items and appointed Defendant No,3 Messrs Askari and Co., Government Auctioneer and Contractors as Government Auctioneer for the stores of Respondent No,1 (who vide order dated 27.4.1982 were struck off from the array of defendants by the learned Single Judge). The date for the auction was fixed on 16.12.1979. The present respondents, who are Kabaries, participated in the auction conducted by Messrs Askari and Company and made the highest bid for lifting the scrap at Rs,7,60,000/-, whereafter they were declared successful bidders and were informed accordingly vide letter dated 22.12.1979, After fulfillment of legal and codal formalities the respondents started lifting the scrap which they did from 27.12.1979 till 9.2.1980. It is an admitted position that during the above period the respondents lifted 7,23,600 kg. Scrap through ninety four (94) trucks but thereafter they were stopped by the appellants from lifting the scrap. The respondents then approached the appellants for allowing them to lift the balance scrap and also served a legal notice upon them. However, when no heed was paid by the appellants thereafter the respondents filed the suit for recovery of 688,461 Kg. Of M.
S. Scrap and in the alternative for damages amounting to Rs,30,00,000/-. The matter proceeded before the learned Single Judge, who after hearing the parties framed the following issues:-- "1) Is the plaint not verified according to law? If so, what is its effect?
2) Whether the M.S. Scrap was sold to the plaintiffs as a bulk as lying on the spot on as is where is basis or by weight as stated in annexure 'A 'to the plaint?
3) Whether the defendants refused or withheld delivery of any part of the contracted goods to the plaintiffs and committed breach of contract? If so, what is weight of such M.S. Bars and what was their market value on the date of breach?
' What reliefs plaintiffs are entitled to?"
3. The learned Single Judge through the impugned judgment dated 4.6.1996 decided the Issue No,1 by observing that the suit is maintainable and the irregularity pointed out would not defeat the suit.
On Issue No,2 the learned Single Judge observed that the scrap was sold to the respondents by "weight" and not on "as is where is basis". On issue No,3 the learned Single Judge observed that it is not possible to assess and ascertain the market value of the goods and on the Issue No,4 the learned Single Judge observed that the respondents are entitled for proportionate compensation of the scrap not supplied/delivered to them and thereafter passed a decree in the Sum of Rs,3,70,544/-, being actual cost of scrap not supplied to them, with cost and interest at 2% from the date of the said suit. Thereafter, the present High Court Appeal has been filed.
4. Mr. Asim Mansoor Khan, DAG, has appeared on behalf of the appellants and submitted that the judgment passed by the learned Single Judge is erroneous both in law and on facts. He submitted that the scrap was sold on "as is where is basis" and not on "weight basis" hence the very foundation of the judgment was erroneous. He invited our attention to the terms of the advertisement to prove his assertion. While elaborating his view point the learned DAG submitted that the respondents were allowed to lift the scrap on "as is where is basis". He stated that after lifting the marked and identified scrap the respondents started to lift other scrap lying in the depot and when they were stopped from doing so they approached the Court with unclean hands by illegally agitating that they may be allowed to lift the scrap which according to him was not part of the subject auction scrap. He submitted that the other scrap lying in the depot of the appellants was not the scrap which was auctioned and sold to the respondents hence how could they be allowed to lift the same. He submitted that the respondents thus have misguided the Court. He submitted that the respondents have exaggerated the figures of the scrap for getting wrongful gains.
5. He submitted that the cleverness on the part of respondents is evident from the fact that when they started lifting the scrap and had lifted 7,23,600 kg. Scrap they found out that the same would not fetch substantial gain to them then they with mala fide intention tried to lift the scrap of other stores and when they were restrained from their illegal act, they with ulterior motives filed the suit and by misguiding the Court obtained a decree in their favour. He submitted that the learned Single Judge has not considered that the respondents had approached the Court by filing the suit after quite some time and hence in his view the suit should have been dismissed by the learned Single Judge on the ground of laches. The learned counsel further submitted that the learned Single Judge has also not considered that prior to the bidding the respondents were permitted to inspect the goods meant for auction which were duly inspected, identified and seen by them but they kept an evil eye on the other scrap lying in the depot and after lifting the agreed scrap thereupon tried to lift the other scrap, which was rightly intercepted by the appellants. He stated that the deposition of witnesses would also prove that the goods were sold on "as is where is basis" hence whatever goods were identified and shown to the respondents they were allowed to lift the same but not the goods which were not the part and parcel of the auctioned scrap.
6. The learned counsel further submitted that the learned Single Judge has not considered that gate passes were issued to the respondents, which if compared with the weight of the scrap would prove the averments of the appellant to be correct. He further submitted that while passing the impugned judgment the learned Single Judge has also not considered various Articles of the Qanun-e-Shahadat Order, 1984. He further submitted that it is a settled proposition of law that entire evidence has to be considered and in his view the learned Single Judge has failed to consider the entire evidences hence the impugned judgment is liable to be set aside. He also submitted that in the suit the respondents had based their case on the weakness of the appellants rather than making out their own case. He, therefore, in the end submitted that since the judgment passed by the learned Single Judge suffers from abovementioned illegalities hence the judgment and the decree may be set aside. In support of his above contentions the learned DAG has placed reliance upon the following judgments:- 1) Muhammad Imran Khan v. Ehsanullah (2016 MLD 418)
2) Muhammad Akhan v. Muhammad Sultan (2015 CLD 1951)
(3) NBP V. General Tyre and Machinery (1996 CLC 79)
(4) Muhammad Siddique v. Mst. Noor Bibi (PLD 2016 Lahore 140)
5) Kazim All v. Liaquat Ali ( 2016 PCr.LJ 487)
6) Bakht Zada v. Saifur (2015 YLR 2125)
7) Bismillah Textile v. HBL (2008 CLC 504)
8) Allah Dino v. Haji Ahmed (PLD 2006 Karachi 148)
9) Bank of Punjab v. Muhammad Ramzan (2006 CLD 539)
10)Mumtaz H. Khan v. Muhammad Hussain (2001 CLC 946)
11)Ahmed Miaji v. Eakun Ali Munshi (PLD 1961 Dacca 259)
12)P.K. Basak v. Gossen and Co. (PLD 1957 Dacca 233)
7. Mr. Farooq Rashid Advocate has appeared on behalf of the respondents and has vehemently refuted the arguments of learned DAG and submitted that the learned Single Judge has passed the impugned judgment after considering the entire evidences and the depositions made by the witnesses and through his exhaustive judgment has rightly come to the conclusion that the appellants were not justified in refusing the respondents to lift the auctioned scrap, as identified by weight by the auctioneer. He submitted that at no point of time the respondents had tried to lift any other item or scrap which was not part and parcel of the auctioned scrap. He submitted that while the respondents were lifting the scrap the appellants allowed them to lift a substantial portion of the scrap but thereafter with ulterior motives tried to renegotiate with the respondents which they refused, with the result that the appellants did not allow the respondents to lift the balance auctioned scrap. The counsel stated that the respondents made several attempts to convince the appellants to allow them to lift the remaining scrap and had even sent a legal notice in this behalf but the appellants were bent upon not to allow the respondents to lift the remaining scrap and thereafter when left with no option the respondent filed the suit, which was rightly decreed in favour of the respondents by the learned Single Judge. He submitted that the evidences and the deposition of various witnesses would also prove the averments made by the respondents. He further stated that the delivery orders produced as evidence in the suit were duly examined which proved that the respondents were to receive a total scrap of 14,12,061 kg. Whereas they were allowed to lift 7,23,600 kg. Scrap only leaving behind 6,88,461 kg. Of scrap illegally withheld and not permitted to be lifted with mala fide intention by the appellants.
8. He submitted that complete gate passes showing weight endorsed by the Naval Stores Depot were produced, which were also examined by the learned Single Judge. He submitted that the documents, on which the respondents have placed reliance, were prepared by the appellants themselves hence how they could now turn around and make some extraneous submissions which were not borne out from their own records. He submitted that the contention of the appellants is self-contradictory as firstly they have stated that the agreement was on "weight basis" whereafter they have stated that the agreement was on "as is where is basis". He further stated that the appellants have relied on one document only, which is the advertisement, while have failed to dislodge the voluminous documents produced during the course of the hearing of the suit. He in the end submitted that the claim of the respondents in the suit was Rs,30,00,000/- or for supply of 6,88461 kg. Of scrap hence the learned Single Judge was not justified in allowing the respondents compensation to the extent of Rs,3,70,544/- only with cost and markup @ 12% whereas according to him the learned Single Judge should have decreed the suit to the extent of the prayer made in the suit. He, therefore, has prayed that the decree may be modified accordingly. In support of his above contentions the learned counsel has placed reliance on the following judgments:-- 1) Daulat All and others v. Ahmad and others (PLD 2000 SC 792)
2) Messrs Muhammad Amin Muhammad Bashir Limited and another v. Pakistan and others (2000 CLC 1559)
9. We have heard both the learned counsel for the parties at considerable length and have perused the record and the decisions relied upon by them.
10. Perusal of the record reveals that in the written statement filed by the appellants they have admitted the averments made in paragraphs 3 and 4 of the plaint. For the sake of brevity the averments made in paragraphs 3 and 4 of the plaint are reproduced hereinbelow:--
3. That the plaintiffs participated/contested the auction of defendant No,1 at Karachi on 16-12.79 and won the auction by making the highest bid of Rs,7,60,000/- (Rupees Seven lacs sixty thousand only) for M.S. Scraps weighing 14, 12, 061 . 000 KG. As declared by defendants Nos.2 and 3 at the time of auction.
5. That in view of the above defendant No,3 conducted and performed all the necessary formalities of the auction and also completed necessary receipts and documents of the auction and issued a delivery letter to the defendant No,1 for the lot won by the plaintiffs copy of the letter of defendant No,3 is attached and marked as annexure "A". (Underline ours)
11. In the written statement it was mentioned by the appellants, who were defendants in the plaint, that the contract was on "as is where is basis" and not on weight basis and the respondents before the bidding have duly inspected the scrap lying at different places in an open area in the Naval Store Depot. In the said written statement they have vehemently denied that the scrap was sold on quantity basis. They stated that the entire scrap was taken by the attorney of the respondents through 94 trucks. It was further mentioned that the final delivery of the scrap was made on 09.02.1980 and an acknowledgement in this regard from the attorney was also obtained. It was the claim of the appellants that in the advertisement the quantity has not been mentioned, hence, the assertion of the respondents that the auctioned scrap was sold on "quantity basis" was incorrect. It was also claimed by the appellants that soon after bidding process the respondents started lifting the scrap through their own labour. It was also claimed that gate passes were only meant for passage of the trucks from the gate and there was no facility available with regard to weighing those trucks. Hence, it was claimed that reliance placed on the gate passes by the learned Single Judge was not correct. However, it is an undeniable position that proper ledger with regard to availability of the scrap at the Depot was being maintained by the appellants from which the scrap lifted by the respondents could easily be quantified and the learned Single Judge has also considered the same while passing the judgment.
12. A perusal of the record reveals that Form-3 was issued by the appellants in favour of the respondents which clearly indicate that not only description of the goods but its weight also, has been mentioned clearly denoting the description "M.S. Scraps" and quantity at "1412061 K.Gs".
Meaning thereby that the assertion of the appellants that the auctioned scrap was sold on "as is where is basis without mentioned the weight of the scrap appears to be contrary from the record maintained by the appellants, which was duly produced during the course of arguments before the learned Single Judge as exhibit "C", available at page 23 of the paper book. In the said Form-3 ledger number, delivery order number and authority letter number with the stamp and seal of the Commanding Officer, Naval Store Depot could be seen and the said Form also bears the signature of the attorney of the respondent.
13. It is seen from the deposition of Muhammad Bilal, attorney of the respondents, that the respondents received 7,23,600 K.Gs. But when on 09.02.1980 he went to the Naval Store Depot, the Commander Naval Store refused to give delivery of the remaining scrap and he was informed that there is no more scrap left to be delivered to them, however, when a request was made by him on behalf of the respondents for delivery of the remaining scrap, the appellants with mala fide intention blacklisted the respondents. It is also seen from the record that the auctioneer Messrs Askari & Co., through whom the auction took place, in their receipt dated 22,12.1979, addressed to the Ministry of Defence, have categorically requested the appellants to deliver the respondents the "lot" sold through the said public auction on 16.12.1979 at Naval Store Depot, Karachi. It is mentioned in the said receipt "Sale of M.S. Scraps 1412061 K.Gs. Sold for Rs,7,60,000/-", which clearly categorizes the weight of the scrap sold, even if assuming for arguments' sake that the items were sold on "as is where is basis". It is further noted from the record that the gate passes and the receipts issued by the appellants not only indicate date on which the scrap was lifted but also the approximate weight of the lifted scrap. If the argument of the appellants is considered to be correct that the sale was made on "as is where is basis" without ascertainment of the weight, then what was the occasion of mentioning the weight of the scrap on each receipt and making entries in the ledger kept at the Depot by the appellants. It is also noted that various letters were written to the high officials of the Pakistan Navy but no positive reply was given in this regard by these officials.
14. The deposition of Arshad Raza, Naval Officer, clearly reveals that he has stated that the goods loaded on the truck were not being weighed, which is contrary to the receipts issued by the appellants and the copy of the ledger produced, which clearly indicate approximate weight of the lifted scrap on each receipt. He has also stated that weight of the lot auctioned was not mentioned before the auction, which statement is also contrary to the receipt issued by Messrs Askari and Co.
Dated 22.12.1979, wherein weight of M.S. Scraps has been mentioned and in the Form-3 also issued by none-else but the appellants the weight of the scrap has been duly mentioned. He has admitted that a ledger is duly maintained at the Depot wherein details of availability of stock and weight are mentioned, which has even been produced and exhibited before the learned Single Judge.
15. The deposition of Siddiq Ahmed, also a Naval Officer, reveals that he has admitted that the auction was conducted by Messrs Askari and Co. He has also admitted that goods lying at the Naval Store Depot were duly accounted for. He has further admitted that complete record of the scrap is being maintained for financial purposes. He was however not sure as to what was the weight of the scrap lifted by the respondents. He has also admitted that when auction took place, he was not present at the place of the auction.
16. The learned Single Judge has categorically noted that the appellants sold the scrap to the respondents on "weight basis", which is apparent from the delivery order duly marked as exhibit "6/2", issued by the auctioneer, which has even been endorsed and admitted by the witnesses of the appellants. In the said document the auctioneer not only has mentioned the weight but has also requested the appellants to deliver the same to the respondents, since they were declared as successful bidders in the auction. It has nowhere been explained by the appellants that if the auction was on "as is where is" basis, what was the occasion of mentioning the weight by the auctioneer and requiring the appellants to deliver the scrap of 1412061 K.Gs. Quantity. It is also noted that if the scrap was sold to the respondents on "as is where is basis", what was the occasion for mentioning the weight of the scrap on each delivery receipt, which aspect also had remained uncontroverted even by the witnesses. It is also an undeniable fact that even a ledger is maintained by the appellants at the depot in which complete description with regard to the weight was being noted. It is also an undeniable position that 94 gate passes were issued by the appellants wherein truck number, approximate weight of the scrap and other details were duly mentioned and how the appellants, in our view, could now state that the auctioned scrap has no relevancy with the weight since the same was made on "as is where is basis".
17. It is also an admitted fact that in the ledger maintained by the appellants before delivery of the goods the same showed the weight of the scrap lying with the appellants at 1544987 K.Gs. Whereas after delivery of the goods a balance of 132926 K.Gs. Was shown as remaining in the stock, meaning thereby that a complete record with regard to the quantity of the stock was being maintained, which amply proves that though in the advertisement it was mentioned that goods were sold on "as is where is basis" but a specific quantity of the auctioned scrap was duly mentioned by the auctioneer which figure must have been provided by the appellants otherwise they would have not mentioned a specific quantity of 1412061 K.Gs. In the delivery order requiring the appellants to allow the respondents to lift the above mentioned quantity of scrap. It is also an undeniable position that out of 1412061 K.Gs. Of scrap, specifically mentioned by the auctioneer in the receipt requiring the appellants to allow the respondents to lift the same, only 723600 K.Gs: was permitted to be lifted, whereas the quantity of 688461 K.Gs. Of M.S. Scraps remained to be lifted by the respondents.
18. We, therefore, in view of above noted facts; find ourselves to be in agreement with the findings of the learned Single Judge that the auctioned scrap was sold on "weight basis" and not on "as is where is basis". So far as the claim of the respondents with regard to enhancement of compensation from Rs,3,70,544/ with cost and mark-up at 12% allowed by the learned Single Judge to Rs,30,00,000/- as claimed in the plaint is concerned, we disagree with A the submissions made by him, as the learned Single Judge has categorically discussed while deciding issue No,4 that they were entitled to proportionate compensation for the quantity of scrap not supplied to them, since they have failed to adduce evidence that they were entitled to a decree for more than Rs,3,70,544/- being actual cost of scrap not supplied to them. Hence, on this aspect we reject the claim of the respondents.
19. We will now deal with the various judgments cited by the learned counsel for the appellants. The decision given in the case of Muhammad Imran Khan (supra) is found to be totally distinguishable from the instant case as this case firstly pertains to malicious prosecution and secondly it was observed in the said judgment that the facts which were not challenged at the time of cross- examination and the documents exhibited without objection _would be deemed to be an admission on the part of the party, which facts on the very face have no relevancy with the facts obtaining in the instant case. The decision in the case of Muhammad Akhan (supra) is also found to be distinguishable as the said judgment is with regard to Negotiable Instruments Act. The case of NBP-(supra) is also distinguishable from the facts obtaining in the instant case, since in that judgment it was observed that contents of a document must be proved by some primary and secondary evidence, which surely is not the issue in hand. The decision in the case of Muhammad Siddique (supra) is also found to be distinguishable as in that judgment the learned Single Judge did not find any flaw in the order of the appellate Court and thereafter dismissed the revision petition, which facts are not available in the instant case. The decision of Kazim Ali (supra) deals with some criminal matter hence distinguishable. The case of Bakht Zada (supra) is also distinguishable as this judgment is with regard to Pre-emption Act and the learned Single Judge has observed that evidence in civil cases cannot be read so as to exclude entire evidence, which judgment has no bearing whatsoever with the present case. The facts in the case of Bismillah- Textile (supra) are also found to be quite distinguishable as in that case though the term "as is where is basis" has been discussed but since we have reached to the conclusion that the transaction took place in the instant case though has been termed as on "as is where is basis" but in fact, as affirmed by the auctioneer, the same was made by clearly identifying the weight of the goods sold.
20. The case of Allah Dino (supra) is also found be quite distinguishable as in this judgment, revisional jurisdiction of this Court has been discussed. The case of Bank of Punjab (supra) is with regard to Financial Institutions (Recovery of Finances) Ordinance, which surely is distinguishable.
The decision given in the case of Mumtaz H. Khan (supra) is also found to be distinguishable as in that case the issue was with regard to limitation has been discussed. The case of Ahmed Miaji (supra) is with regard to dispossession of a co-sharer hence has no relevancy with the matter in hand. The case of P.K. Basak is also distinguishable as in that case it was observed that no money could be recovered in respect of an illegal contract, which is not the subject matter of the instant appeal. The various Articles of Qanun-e-Shahadat on which reliance was placed by the learned counsel for the appellants also do not support his viewpoint as it is seen that the learned Single Judge has passed the order after examining the evidences and considering the deposition of the witnesses and thereafter through an exhaustive judgment reached to the conclusion that the scrap was sold in terms of the weight and not in terms of bulk and the endorsement with regard to the quantity has categorically been made by the auctioneer confirming that the lot was sold on weight basis and hence the learned Single Judge was quite justified in holding that the insistence of the appellants on the advertisement that the scrap was sold on "as is where is basis" would surely become meaningless.
21. The upshot of the above discussion is that, this High Court Appeal is dismissed and the order passed by the learned Single Judge is hereby upheld.