' This second appeal is directed against the judgment and decree dated 17-12-1964 whereby the learned District Judge, Sialkot dismissed the appeal and mantained the decree of the learned trial Court dated 3-4-1963 dismissing the suit for recovery of Rs, 20,000.
2. The facts of the case as stated are that Messrs Jehanian and sons had undertaken to supply timber to the Wah Factory for which they entered into an agreement with the Sialkot Rural Development Co operative Trust Ltd., Sialkot for such supply at the rate of Rs, 7/6/. (Rs, 7.38). Per cubic foot. According to the Trust, timber worth Rs, 20,104.25 was supplied during the period from 28-4-1957 but the price was not paid. The Trust, therefore, riled a suit on 4-6-1960 for Rs, 20,000 relinquishing the surplus Rs, 104.25. The existence of the agreement was denied by the respondents-defendants, and the suit was contested on the point of limitation also. The trial Court framed issues and after recording evidence of the parties it consequently dismissed the suit. The appellants-plaintiffs made an appeal, but the same was also dismissed. The learned District Judge was of the opinion that letters Exhs. P. 2 and P. 3 and the certified copies of the statements Exh. P. 4 to Exh. P. 6 could not have been used against their makers as according to the learned Court, the concessions or admissions made in one case could not be used as evidence against that party in another suit and the evidence was, therefore, kept out of consideration. It was held that the appellants had failed to produce documentary evidence in support of their claim, and without that oral evidence was excluded, but at the same time the suit was found to be within time. The findings of the trial Court were maintained and the appeal was consequently dismissed.
3. Learned District Judge placed reliance on the provisions of section 91 of the Evidence Act (I of S72) and excluded oral evidence on the ground that the appellants had not only failed to produce the documents in support of their claim but relied on such statements of the defendants as did not lend any support to the appellants' case. Section 91 of the Act provides that when the terms of a contract or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases, in which secondary evidence is admissible under the provisions hereinbefore contained. It is a common point between the parties that the initial agreement for supply of timber of a particular quantity at a specified rate was arrived at by no document, and the parties were thus not excluded from producing oral evidence to prove the nature of the contract, its terms and others incidents relating thereto. The learned District Judge thus erred in law in misreading evidence by excluding from consideration oral testimonies and ignoring documents giving details of the contract.
4. The appellants had placed on record certified copies of the statements of Habib Ullah Ch. Ata Ullah Jehanian and Fazal Karim (Exhs. P. 4 to P. 6 respectively) recorded by the Additional District Magistrate, Sialkot in a criminal case under sections 409 420-468/109, P.P.C. Against Abdul Ghani Ghumman and Mushtaq Hussain. They had admitted to have purchased from Ch. Abdul Ghani about 2700 cubic feet of Shisham wood at the rate of Rs, 7.60. It is not denied that Ch. Ata Ullah Jehanian and Fazal Karim were the partners and Habibullah was the manager taking active part in the affairs of the respondent firm Messrs Jehanian and Sons. Section 21 of the Evidence Act lays down that admissions are relevant and may be proved as against the person who makes them, or his representative-in-interest; but they cannot be proved by or on behalf of the person who makes them or by his representative-in-interest, except that an admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission. It is thus clear that where in a suit for declaration that a partition having already taken place, the defendant was not entitled to have it re-partitioned, the plaintiff files a certified copy of a previous statement made by the defendant's "mukhtar-e-am admitting partition and an ample opportunity is given to the defendant to explain the admission but it is not availed of by him, the admission can be used in evidence. It is laid down in Rahim Bakhsh v. Nathu Bib: and others (1) that a former deposition by party in previous suit can be used subsequently as an admission. It is further held that such a previous admission in a statement made by a party in Court of law can be proved by mere producing certified copy of the statement.
5. The defendants did not appear in the instant case as witnesses and the appellants in anticipation and in the hope that the statements (Exh. P. 4 to Exh. P. 6) recorded in an earlier proceeding would be put to them for corroboration placed the certified copies and made them a part of the record. The persons namely Habib Ullah, Ch. Ata Ullah Jehanian and Fazal Karim did not appear in the Court to contradict or deny what they had said in the criminal proceedings, their statements, therefore, would be used as an admission when the certified copies thereof formed part of the record. Ghulant Nabi Corporation Ltd. v. Khan Iftikhar Hussain Khan of Mamdot (2) may be cited with advantage. Where the previous statement of a person was not intended to be used for the purpose of contradicting his testimony but was intended to be used as an admission of his with a view to discredit his case, it was held that it was relevant under section 21 of the Evidence Act, and even though the
(1) PLD 1951 Pesh. 61 (2) P.L. D 1962 Lab 370 ' formalities laid down by section 145 of the Act were not complied with the admission contained in that statement could be used against the person making it. The same view has been discussed and dealt with in Firm Malik Des Raj Faqir Chand v. Firm Piara Lal Aya Ram and others (1).
6. In the instant case Habibullah who had been the manager of the Jehanian and Sons, Karachi admitted in his earlier statement Exh. P. That Ch. Abdul Ghani Ghumman had promised to supply timber to Ch Ata Ullah through Imam Din and Sons. The statement gave the detail that timber was to be supplied at the rate of Rs, 7.38 per cubic foot. The same was that of Ch. Ata Ullah (Exh. P. 5) wherein it was admitted that the timber was purchased by the firm of the witness which was worth Rs, 19,000 or Rs, 20,000. It was almost 2000 cubic feet. All the salient points in respect of the averments contained in the suit were admittedly explained in the statement and the other statement made by Fazal Karim. This much evidence by itself was sufficient to prove that the appellant Cooperative Trust had supplied timber during the period from 28-4-1957 to 22-8-1957 worth Rs, 20,104.25 at the rate of Rs, 7.38 per cubic foot. It may be pointed out that if the admission is made in a previous statement in a Court of Law, the law permits its proof by producing a certified copy thereof under section 77 of the Evidence Act. Once the admission is proved in the presence of the party making it, it was the duty of that party to come into the witness-box and deny its existence or explain the admission. In the instant case the respondents failed to do that. Further evidence was thus required by the appellant to establish its claim, and the learned Courts below were thus not justified in disregarding this evidence.
7. In the matter of shifting the onus there is no divergent opinion. In a suit for property the plaintiff alleged that her husband had during his lifetime separated from the joint family, and therefore, she was entitled to the suit property as belonging to her husband. The defence was that the partition was fictitious and the suit property was joint family property. In view of the previous admissions by the plaintiff that the family was joint and that the partition deed was fictitious and was 1 never acted upon, it was held in Mst. Sunder Kuer v. Shah Udey Ram and other (2) that whatever onus may initially have lain on the defendants vendees to show that the family was joint, the proof of admissions of the plaintiff shifted onus on the plaintiff to show that the partition was real. It was for the plaintiff to rebut the presumption to which her admission gave rise, namely that the partition was not real. In the instant case, the burden of proof shifted to the respondents to show that no timber was supplied to them or that they were not liable to pay any sum in lieu of the supply, but there is no evidence on record showing that the claim of the appellant was false or that the respondents had paid everything, Besides these documents the appellant has produced Imam Din P.W. 1, Mushtaq Hussain P.W. 2, Nazar Hussain P. W. 3 and Abdul Waheed P.W. 4 besides Abdul Ghani P.W.
5. It has been proved that the plaintiff firm supplied timber at the rate of Rs, 7.38 per cubic foot and the respondents were responsible to pay a sum of Rs, 20,104.25, and the plaintiff firm was entitled to the decree to that extent.
8. The question whether the suit was within limitation was taken up by the learned District Judge and it was held that the suit was within time. The contention of the plaintiff-appellant that the payment was to
(1) AIR 1946 Lah. 65 (2) AIR 1944 All. 42 ' be made after the entire quantity of timber had been supplied was taken to be correct and the terminus a quo was the document Exh. P. 2 written by Habibullah on 22nd June, 1957 to the plaintiff- appellant. It is not denied that Habibullah was the manager of the respondent firm and was acting for all purposes for the said firm with no evidence to the contrary that he lacked authority to bind the firm in financial matters. According to section 19 (1) of the Limitation Act (IX of 1908) here before the explanation of the period prescribed for a suit or appliation in respect of any property or right, an acknowledgment of liability respect of such property or right has been made in writing signed by the arty against whom such property or right is claimed, or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. It shows, therefore, that an acknowledgment must be conscious and distinct admission of an existing liability or jural relations between the parties out there is nothing in law to require that an acknowledgment should be express, It may be implied provided the implication is a necessary implication so as to render the acknowledgment clear and unequivocal. To may be added that the acknowledgment need not, specify every legal consequence of the thing acknowledged. Exh. P. 2 was the letter which indicated that the respondent firm was liable for the supply of timber. It gave an indication with reference to the last letter that the financial position of Ch. Ma Ullah Jehanian was then not so sound. It was or that reason that the entire amount due to him could not be sent and part of the money could be arranged with great difficulty. This letter as nothing but a clear acknowledgment under section 19 of the Limitaion Act, and had the capacity to extend the period of limitation. That being so, the past liability stood acknowledged on 22-6-1957 giving an extension of time for another three years from that day, and the suit filed .n 4-6-1960 was well within time.
' For the foregoing reasons the appeal is accepted, the judgments and decrees of the lower Courts are set aside and the appellant's suit for recovery of Rs, 20,000 is decreed with costs throughout.