MUHAMMAD NASIR MAHFOOZ, J:-This Regular First Appeal is directed against the judgment and decree dated 30.06.201 1 of the learned Civil Judge-XII/Illaqa Qazi, Swat, whereby suit of the appellant was dismissed.
2. Brief and essential facts of the case are that, the respondents have a Travel Agency at New Road Mingora, Swat in the name of Shakhawat Shah. The appellant paid Rs. 180000/- to the respondents for visa, and on 02.09.2005 a written acknowledgment of the said amount was given to the appellant by the respondents but again failed to pay the said amount on due date. The appellant filed a recovery suit against the respondents for principal amount as well as damages but the same was dismissed by the learned Civil Judge-XII/Illaqa Qazi, Swat, vide judgment and order dated 30.06.2011, hence, the instant appeal.
3. Valuable arguments of the worthy counsel for the parties were heard and the record perused with their able assistance.
4. Learned counsel for the appellant has referred to various parts of the pleadings and evidence produced before the learned trial court. Learned trial court has framed the following issues from the pleadings of the parties. {{URDU TEXT}}
5. Defendant No. 2 in the main suit and respondent No.1 herein now deceased filed his written statement where in para 1, he has admitted that the appellant/plaintif f had paid Rs. 125000/- to him on account of arranging a visa for Dubai/ Sharjah but added that still Rs. 45000/- are yet to be paid. In para 4 he has added that the visa was arranged but the appellant/plaintif f failed to pay the remaining amount, therefore, he is not entitled to the amount paid to him.
6. The appellant/plaintiff produced one Ihsanullah s/o Muhammad Khan as PW-2 and one Abdullah Khan s/o Pir Dad as special attorney appeared in court. In examination in chief he affirmed the contentions of his plaint that he paid Rs. 130000/- to the respondent and he was asked to visit Rawalpindi for medical checkup but when he visited Rawalpindi no medical checkup was arranged. It is added that the said amount was paid in installment, vide receipts Ex PW1/2 he paid Rs.20000/- in advance and on 10.05.2005 vide written acknowledgement Ex PW1/3 Rs. 30000/- were paid,but later on he demanded total amount of Rs. 180000/-, therefore, he paid Rs.
130000/- vide Ex PW1/4. He also added that in order to arrange the aforesaid amount he had sold golden ornaments of his female relatives on 02.08.2005. out of said amount Rs. 50000/- were to be paid by respondent No.1 but when he failed to pay the said amount, he then executed another receipt dated 22.09.2005 Ex PW1/5 but despite that the said amount has not been paid to him which caused him mental torture and therefore, the instant suit for recovery of Rs. 10 lac has been filed. In his cross examination, respondent No.2 has questioned PW-1 on different aspects of the statements in examination in chief but the statement could not be shattered to the extent of arranging the visa and payment of amount of Rs. 130000/-. All the question asked in the cross examination tends to contradict the averments in para 1 and 4 of the written statement. Similarly PW 2 has also supported the plaint in his examination in chief but nothing adverse to the interest of appellant/plaintiff has brought forward. PW- 3 Inamullah is stated to be witnessed to the payment of the said amount, he has also been cross examined wherein he stated that he is Sub-Agent for arranging visa for appellant/plaintif f and he has affirmed the contentions of appellant.
7. On the other hand respondent No. 1/defendant No.1 Sakhawat Shah has appeared as DW-1 who stated in examination in chief that before the year 2004 he had an office running his business as Travel Agent but later on he left the said business and denied to have affected any agreement of arranging visa for appellant. In his cross examination he has admitted that the document exhibited by PW-1 reveals his name as Managing Director of Travel Agent but he had no connection whatsoever, with respondent No.2. He has denied his signature on Ex PW1/2 but he could not produce any prove to show that the documents exhibited are fake and forged by the appellant/plaintiff. Respondent No.2 has also appeared as DW-1 in court and has even admitted in his examination in chief that Rs. 125000/- were paid to him by the appellant/plaintiff but Rs. 45000/- is still outstanding as the total amount for arranging the visa was Rs. 170000/-. In his cross examination, he could not produce copy of any visa but stated that in routine photo state copy is usually sent from Dubai. He also admitted that he handed over the visa to the appellant/plaintiff. He further admitted in his cross examination that appellant/plaintiff cannot go abroad because he did not pay the remaining amount to him. He has produced one Ali Haider s/o Shoukat Ali as DW-2 and has deposed to the fact that respondent No. 1/defendant No.1 had left the business of Travel Agent after 2004. He has only deposed to the extent of relieving respondent No.1 /defendant NO.1 from any obligation of receiving the visa fee from the appellant. Similarly DW-3 Amjad Ali s/o Bawar Khan has also deposed in support of respondents.
8. Fate of the present case hinges on issues No. 4, 5 and 6. Under issue No. 4 learned trial court has referred to some order passed by his predecessor whereby the suit of appellant/plaintif f was stated to be decreed to the extent of defendant/respondent No.1, but not mentioned either the date or any suit number has been given, even while filing this, appeal no reference to the said facts has been given by any of the party . It appears that the learned trial court has totally misconceived this aspect and has wrongly decided issue No. 4 on this ground.
9. Under issue No. 5, learned trial court has referred to the statements of parties and has affirmed the contentions of appellant/plaintiff that he had paid Rs. 125000/- to respondent No.2 but strangely he has discarded the same by stating that there is contradiction in the statement of PW-1 but he has not even referred to para 1 and 4 of the written statement and has decided the issue by affirming the payment of Rs. 125000/- to respondent No.2.
10. Under issue No. 6 learned trial court has referred to some part of the plaint and statement of witnesses of appellant and given reference of some previous suit but not a single document from the said previous suit has been either exhibited nor placed on record, and hence decided the issue against the appellant/plaintiff. As a consequence to his findings, he has dismissed the suit through the impugned order, hence the instant appeal.
11. After going through the pleadings and evidence on record and the admission made by respondent No.2 regarding receipts of Rs. 125000/- in para 1 and 4 of written statement, the appellant has succeeded in proving his case to this extent, while considering the documents exhibited in court as Ex PW1/1 to Ex PW1/5, it is established on the record that infact Rs. 130000/- has been paid to respondent No.2 but he has failed to provide the requisite service of arranging visa of the appellant/plaintif f and has still not yet refunded the said amount to him.
12. In view of this admission and the documents exhibited by the appellant, I did not feel any difficulty to hold that appellant/plaintiff is entitled to the decree of Rs. 130000/- but at the same time, I would also accept that the total requisite fee for arranging the visa was Rs.170000/- but the remaining Rs. 40000/- was not paid by the appellant/plaintif f to respondent No.2 and therefore, the demand of Rs. 45000 /- for providing his services by respondent No.2, also seems to be genuine which as to be deducted from the total amount of Rs. 130000/- paid to him.
13. The decision of learned trial court on issues No. 5 and 6, needs to be interfered with in the light of my discussion above, hence this appeal is partially allowed and suit of the appellant/plaintif f is decreed to the extent of Rs. 130000/- out of which Rs. 45000/- is to be considered as payable to responde nt No.2, which can be withheld by him and the appellant/plaintif f is entitled to receive Rs. 85000/-. There shall be no order as to costs.