' The above two appeals have been filed from the judgment of third Additional District Judge, Karachi dated 4th November,1972, whereby he had dismissed the first appeals filed by the present appellants from the judgment of third Civil Judge Ist Class, Karachi, dated 31st October, 1969, in Suits Nos.650/68 and 461/1966. The two suits were filed by the parties against each other being in the nature of claim and counter-claim in respect of the transaction. Therefore, the two suits were consolidated by the learned Civil Judge and decided by one judgment as stated above. Two separate appeals filed by the appellants against the above said judgment were also decided by a common judgment by learned third Civil Judge on 4th November,1972, as stated above. Both the judgments of the trial Court and that of the First Appellate Court have been challenged by the appellants separately by the above two appeals. As the matters are connected, hence both the appeals were heard together and are being decided by this judgment.
2. The facts of the case are that the appellants had placed an order with the respondent's firm for supply of 'pull overs' and 'Cardigans' worth Rs,50,000 by their letter, dated 5th October,1964. The respondents' firm supplied these goods to the appellants between 28th October, 1964 and 28th November,1964. The order dated 5th October,1964 was for goods worth Rs,50,000 but the goods supplied were of the value of Rs,47,554.75.
3. Out of the above value of the goods the appellants' firm whose proprietor is Abdul Karim, paid Rs,36,000 buy cheque, while Rs,1,062 were adjusted towards goods which were returned by the appellants to the respondents. Thus, the total amount received by the respondents for the goods supplied was Rs,37,062 leaving a balance of Rs,10,492.75 payable by the appellants to the respondents.
4. The respondents pressed the appellants for payment of the above amount. For about three months the appellants remained silent and on 5th March, 1965 they sent a notice to the respondents that some of the goods were defective and that the appellants have on account of this fact, sustained a loss of Rs,7,078.50. The appellants, therefore, not only denied the claim of the respondents for the balance of sale consideration, but on the contrary required the respondents to pay damages to the extent of the above amount to them. On account of the above dispute the appellants filed suit against the respondents for recovery of Rs, 7,078.50 being Suit No,3/66 (renumbered subsequently as Suit No,120/1966 and then 650/1968). On the other hand the respondents filed Suit No,461 of 1966 for recovery of Rs,10,492.75 from the appellants being the balance of the sale consideration. As stated above both the suits were consolidated and tried together.
5. On the respective pleas of the parties, following issues were framed by the learned Civil Judge: "(1) What were the terms and conditions on which the goods were supplied ?
(2) What was the total amount of the goods supplied to the plaintiffs? Were they not of the quality ordered? If so, its effect?
(3) Whether the goods in orders were supplied to the plaintiff after the plaintiff made thorough check and then only signed on the credit bills of the defendants? If so, what is its effect?
(4) What was the value of the goods ordered and actually supplied by the defendant?
(5) Were the goods supplied by the defendants of second quality, short-in-size, defective, different in colour, and not 100 per cent wool, of old stock and not marketable? If so, its effect?
(6) Did the defendants appoint any representative to examine and check the goods and was any agreement reached as detailed in para. 8 of the plaint? If so, to what result?
(7) What payments if any and to what account were made by the plaintiff? Did the plaintiff return any goods if suits value?
(8) What losses if any did the plaintiff suffer on account of non-supply of goods ordered to the tune of about Rs,50,000?
(9) Is the present suit a counter blast of the defendant's suit which is filed in the Court of IIIrd Civil Judge, IInd Class, Karachi for Rs,10,556 against the plaintiff bearing Suit No,11/1966?
(10) Are the plaintiffs entitled to the reliefs claimed?
Additional Issues.
(1) Whether plaintiff No,(4) is not partner of plaintiff No,(1)? What would be the effect of misjoinder?
(2) Whether goods supplied were in accordance with the sample?
(3) Whether plaintiffs confirmed the rates by their order, dated 5th October,1964?
(4) Whether amount of Rs,10,492.75 is still payable by plaintiffs?"
' In support of the above issues the appellants examined Syed Muhammad Alam (Exh.5),Abdul Karim (Exh.7) and Abdur Rahim (Exh.26). In rebuttal the respondents examined Muhammad Anwar (Exh.28) Abdus Salam (Exh.29) and Muhammad Masood (Exh.22).
6. For the sake of convenience witnesses of the appellants shall be described as P.Ws. While those of the respondents as D.Ws. P.W.Syed Muhammad Alam (Exh.5) has stated that he had surveyed the goods of the appellants and found that the goods were defective in respect of size and colour.
He has produced his Survey Report as Exh.6. In cross-examination he stated that he is Inter Science Student and has no diploma of surveying. There is nothing in his evidence to show that this survey was done with notice to the respondents.
7. P.W.Abdul Karim (Exh.7) is proprietor of the appellants' firm and is the main witness of the case.
He has produced the letter, dated 5th October,1964 (Exh.8) whereby order was placed for supply of 'pull overs' and 'Cardigons' with the respondents. In this letter size, colour and quantity of the goods has been specified but in the end the appellant himself has stated; "Order is final. Quantity and colour will not be considered". He admits that he had received the goods vide 11 bills which he has produced as Exhs.14 to 24. He admits having signed these bills in token of having received the goods. Each of these bills contains the number of the articles, the colour of the articles, the size of the articles as well as the value of the good. He admits in cross-examination that he did not check the goods immediately on receiving the same but on the next day he used to check the same. He further states that some of the goods were defective which were returned to respondents, that there were more defective goods which the respondents refused to take back due to which he sustained a loss of Rs,8,078. He has produced the notice, dated 5th March,1965 which he had issued to the respondents intimating the latter that some of the goods supplied were defective, of poor quality and short in size etc. He admits that after receiving the last consignment of goods on 24th November, 1964 (vide Exh.24) and before 5th March, 1965 he did not send any notice in writing to the respondents to protest against the breach of the contract contained in the letter (Exh.8). He has admitted that towards the value of the goods received he had made total payment of Rs,37,062 to the respondents. He also admits that on 10th March, 1965 i,e, after five days of the notice (Exh.9), he had sent a cross-cheque of Rs,3,000 to the respondents but later on he had stopped its payment on the ground that it was obtained from him by the respondents by fraud. He has not clarified as to in what manner fraud was perpetrated upon him in getting this cheque issued which was dishonoured later by the Bank.
8. P.W. 3 Abdur Rahim (Exh.26) has stated that he had examined some of the 'pull overs' produced by the appellants and found that the colour of the'pull overs' was not fast. He has produced such report as Exh.27.
9. In rebuttal D.W.1 Muhammad Anwar (Exh.28) stated that he is employee of the respondents' firm.
He has stated that he did not receive any complaint from the appellants about the goods being of poor quality or defective. D.W.2 Abdus Salam (Exh.29) is also employee of the respondents' firm Messrs Yakoob & Sons and has stated that they had supplied all the goods to the appellants according to their order contained in the letter (Exh.8).
10. D.W.3 Muhammad Masood is one of the partners of the respondents' firm namely Messrs.
Yakoob & Sons. He has deposed that their firm had supplied goods worth Rs,47,554 vide the bills Exhs.14 to 24 and had received Rs,36,000 by cheque towards part payment of the sale consideration. He further stated that goods worth Rs,1,062 were returned by the respondents to them which were adjusted towards the balance. Thus, Rs,10,492.75 are still payable by the appellants to them.
11. After considering the above evidence the trial Court came to the conclusion that the goods supplied by the respondents were not proved to be defective, that the appellants were not entitled to any damages but they were liable to pay the balance of sale consideration amounting to Rs,9,952.75 only. Thus, the suit of the appellants was dismissed with cost while the suit of the respondents was decreed with cost as above. In first appeal the learned appellate Court dismissed both the appeals as stated above.
12. The trial Court and the first appellate Court have relied upon admitted documents in decreeing the claim of the respondents and disallowing that of the appellants. These documents are Exh.8 and Exhs.14 to 24. The first document i,e, Exh.8 is the letter, dated 5th October, 1964 containing the order placed by the appellants with respondents. This letter contains the quantity and the specifications of the goods. Appellant Abdul Karim, the proprietor of the appellant's firm has admitted his signature on this letter. Exhs.14 to 24 are eleven bills submitted by respondents to the appellants in respect of the goods supplied by the former to the latter.
' All these bills are admitted by appellant Abdul Karim who has signed the same in token of having received the goods between 28th October,1964 and 28th November 1964. These bills contain the quantity as well as value of the goods which comes to Rs,47,000. On none of these bills except Exh.24. Has the appellant made any endorsement to the effect that the goods were defective or that the same were not according to the specification mentioned in the letter (Exh.8). So far as the goods relating to Exh.24 are concerned some of these were returned to the respondents and the value thereof amounting to Rs,1,062 was adjusted towards the balance payable by the appellants.
13. In his deposition Abdul Karim (Exh.7) has admitted that he had checked the goods of each bill on the next day of receiving the same. Still he did not protest to the respondents about alleged defective quality of the goods until after 4 months in March, 1965, when for the first time A notice was given to the respondents, and that also after the latter had insisted upon them to pay up the balance. Had the quality of the goods been defective, the appellants would not have kept silent for four months.
14. The appellants had paid Rs,36,000 by cheque and an amount of Rs,1,062 was adjusted by the respondents towards value of goods returned to them. Thus, total amount received by the respondents comes to Rs,37,062 out of the total value of the goods amounting to Rs,47,000. Thus, the respondents has rightly claimed the balance of Rs,10,492.75 from the appellants. I have no reason to take exception to the concurrent findings of facts of the two Courts below that the respondents were entitled to claim Rs,10,492.75 as balance of the goods supplied by them to the appellants.
15. Mr. Abdul Wahab learned counsel for the appellants has argued that the trial Court had erred in consolidating the two suits against the consent of the appellants due to which they have been prejudiced. The argument is misconceived. In the first place no such plea was raised either before the trial Court or the first appellate Court. Secondly, no prejudice has been caused to the appellants by consolidation of the two suits. The suits were in the nature of claim and counter claim set up by the parties against each other. Both the claim as well as the counter claim had arisen out of the same transaction, which was embodied in the document Exh.8. Issues and witnesses in both the suits were also common, hence it was quite appropriate for the trial Court to have consolidated the two suits.
15-A. It has been argued half heartedly by Mr. Abdul Wahab that the findings of the two Courts below are against the evidence on record. He has failed to point out any material inconsistency between the evidence on record and the concurrent findings of facts of the two Courts below. On the contrary it has been shown that the findings are based on the documents which have been admitted by appellant Abdul Karim in his evidence.
16. Mr. Abdul Wahab has further argued that the appellants had got the goods surveyed and value thereof assessed before making demand for the defective goods. But it is also admitted that before getting the goods surveyed no notice was given of the date, time and place of survey. The learned counsel has referred to notice Exh.44, dated 11th May, 1965 produced by Abdul Karim in his evidence, but there is no A.D. Receipt to prove that this notice was ever served upon the respondents. Moreover, in this notice there is no mention of date, time and place of survey hence even otherwise this notice cannot be deemed to be proper notice of survey. Again there is no mention in their plaint that the appellants had got the goods surveyed before filing the suit; nor such plea was taken before the first appellate Court.
17. There is one more circumstance which completely belies the claim of the appellants. On 10th March 1965 appellant A.Karim had sent a cheque for Rs,3,000 to the respondents towards the balance of the value of goods supplied. But he had later, for reasons best known to him, stopped payment of the cheque, due to which the respondents could not encash it. This cheque has been produced as Exh.25. By 5th March, 1965 the appellants must have come to know that nothing is due to the respondents. This is the date when for the first time notice (Exh.9) was given by the appellants about the goods being defective. In spite of this the appellants sent cheque for Rs,3,000 to the respondents. According to the appellants nothing was payable by them to the respondents on this date. On the contrary the latter was being held liable to pay damages to the appellants for the defective goods. It appears that after issuing the cheque the appellants had some second thoughts and stopped its payment with the dishonest intention to withhold payment of the balance of the sale consideration to the respondents.
18. Mr.Abdul Wahab has referred to sections 12,15,16,17,41 and 42 of the Sale of Goods Act 1930 to press his pleas regarding breach of implied conditions of sale and the rights of a buyer. Except section 42 no other section is relevant to the facts of the case. Section 42 of the Act runs as under:- "42. Acceptance.-- The buyer is deemed to have accepted the goods when he intimates to the seller, that he has accepted them, when the goods have been delivered to him and he does any act in relation to them which is inconsistent with the ownership of the seller, or when, after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them."
The above provisions, on the contrary, completely non-suit the appellants who had accepted the goods by signing the bills Exhs.14 to 24 and by not rejecting the same within a reasonable time. The goods were supplied between 28th October, 1964 to 28th November, 1964 and each consignment was checked and examined by the appellants on the very next day of receiving the same, still part of the goods which according to them were defective, were not rejected until after three months, on 5th March, 1965. Three months time is more than reasonable time in the circumstances of this case. By signing the bills Exhs.14 to 24 and not rejecting the goods within a reasonable time, the appellants shall be deemed to have accepted the goods.
19. In respect of powers of the High Court in interfering with the second appeal under section 100 C.P.C. Mr. Abdul Wahab has relied on the case of Abdus Salam v. Alah Mian Serang PLD 1971 SC 189.1n this case the Supreme Court observed as under:-- "In a second appeal if the High Court finds that the lower appellate Court has omitted to consider certain items of evidence in determining an issue of fact then it is the duty of the High Court under section 103 C.P.C, to determine that issue having regard to the evidence on record including the items of evidence omitted from consideration by the Court of first appeal. Where a Single Judge of the High Court, after having noticed the omissions, abruptly allowed the second appeal and set aside the judgment of the first appellate Court without evaluating that evidence and arriving at any finding, it was held, that the Single Judge erred in allowing the appeal without complying with provisions of section 103 C.P.C. The Supreme Court remanded the case for rehearing by the first appellate Court."
20. As discussed above, the trial Court and the appellate Court have not failed to take into account any relevant evidence, nor it has been shown that the findings of the two Courts are in any way based on misreading of evidence. Reference in this connection may be made to the case of Iqbal Ahmed Khan Lodhi v. Mirza Muhammad Ajmal PLD 1983 Kar.501 in which it has been held that under section 100 C.P.C, question regarding findings of fact cannot be re-opened unless it is established that the findings are based on misreading of evidence or have been arrived at by perverse appreciation of evidence on record or some material piece of evidence has been overlooked by the Courts below. In the case of Akbar Ali Shah v. Muhammad Shah 1982 SCMR 286 it has been laid down by the Supreme Court that findings of fact recorded by the District Judge in first appeal cannot be interfered with in second appeal, nor reappraisal of evidence is permissible.
21. In view of the above decisions, I am satisfied that the findings of fact were arrived at by the two Courts below on correct appreciation of evidence on record and that no material piece of evidence was kept out of consideration and as such the findings of the Courts below are not liable to be interfered with.
' For the above reasons both the appeals fail and are hereby dismissed with costs. These are the reasons for the short order announced earlier.