' KHIZAR HAYAT, J.--The propriety and legality of the judgment, dated 20th July, 1978 pronounced by Civil Judge Ist Class, Chishtian, has been agitated in this first appeal in which he passed a decree for Rs,1,10,182.65 in favour of the respondent.
2. Briefly stated the facts are that the plaintiff-respondent was running a commission agency in Haroonabad, District Bahawalnagar, under the name and style of "Messrs Ch.Faiz Ahmad, Saeed Ahmad, Commission Agents." Muhammad Ashraf (defendant No,9) introduced Ghulam Muhammad, Rubnawaz and Allah Bakhsh, appellants (defendants Nos. 6 to 8) to the respondent as partners of the firm known as "Rashid and Company"(defendant No, 1) alongwith defendants Nos. 2 to 5. The appellants allegedly told the respondent that they wished to purchase "cotton of No,164 quality" through his firm during the cotton season 1973-74 for supplying it to Kausar Cotton Ginning Factory, Surajkund Road, Multan, and would pay for the same. The parties agreed to it and the appellants deposited a sum of Rs,21,000 in advance with the respondent who in turn opened a regular account in the name of firm "Rashid and Company", entered the said amount there and obtained appellants' signatures on it. During the season, the appellants purchased 5198 Maunds 2 Seers cotton valuing Rs, 5,53,601.88 (inclusive of incidental charges) through the respondent and made various payments towards its price from time to time amounting to Rs,4,43,419.23 but a sum of Rs,1,10,182.65 remained unpaid. Despite repeated demands by the respondent, the appellants failed to clear the balance. The respondent sent a bill to the appellants demanding payment of Rs,90,025.98 as price of the cotton purchased by them upto 17th January,1973. A final consolidated bill at the close of the season for the total purchased upto 2nd February, 1974 showing Rs,1,10,182.65 payable by the appellant was delivered to their agent Muhammad Ashraf (defendant No,9) who signed its duplicate copy Exh.P.6. A copy of the former bill was delivered to Rabnawaz appellant on 3rd December,1974 by the respondent personally and obtained his signatures on its duplicate copy Exh.PI in the presence of Shah Muhammad (P.W.1) and Shabbir Ahmad (P.W.5) but it did not meet positive response. On 30th December, 1976 written notices (copies of which are Exhs.P.8 to P.13) were sent to the appellants and defendants Nos. 2 to 5 and 9 through registered post demanding payment of balance but the notices were received back undelivered. Letters Exhs.P. 15, P-20, P-24 and P-28 particularly addressed to the appellants were returned with the report that the addressees had refused to accept their delivery, therefore, the respondent was obliged to file the present suit for the recovery of Rs, 1,10,182.65 in the Court of Civil Judge 1st Class, Chishtian, on 1st February, 1977 which was resisted. Defendants Nos. 2 to 5, in their written statement denied that they were partners of the firm 'Rashid and Company' or had ever traded with the plaintiff- respondent. The appellants (defendants Nos. 6 to 8) in their separately filed written statement averred that they had no firm by the name 'Rashid and Company'; that defendants Nos.2 to 5 had never been their partners in cotton business; that they had deposited Rs,21,000 as advance with respondent's firm for purchasing cotton through them and the quantity so purchased was only 751 Maunds 18 Seers valuing Rs,81,260.92 which amount had been paid except a balance of Rs,135.56 which they were ready to pay. They denied that they were introduced to the respondent by Muhammad Ashraf (defendant No,9) who, according to them, had been collusively impleaded by the plaintiff-respondent for getting his support to the claim. They also maintained that the suit was liable for rejection, for being deficiently stamped; for non-registration of respondents firm under Partnership Act and for not producing Khatas etc. At the time of filing the plaint as enjoined by Order VII, rule 11, C. P. C. Defendant No, 9 in his written statement denied that he was surety for the appellants. He averred that he acted as an agent of the appellants in their cotton business during the year 1973-74 and that the appellants owed to the respondent money claimed by him. On pleadings of the parties following issues were framed and tried:
(1) Whether defendants Nos. 2 to 8 are not the partners of the firm Messrs Rashid and Company and this suit is bad for misjoinder of parties? 0 P D.
(2) Whether the plaintiff firm is not registered one and hence this suit is not maintainable ? 0.P.D.
3) Whether this suit is not properly valued for the purposes of court-fee?O.P.D.
(4) Whether defendant No, 9 stood surety for the other defendants for payment of any amount due from them to the plaintiffs? 0.P.D.
(5) Whether defendants Nos. 2 to 8 never carried out any business as alleged in the plaint? If so, with what effect? 0.P.D.
(6) Whether the plaintiff is entitled to recover any amount from the defendants? O.P.D.
(7) Relief.
3. Both the parties produced oral as well as documentary evidence. In support of the plaintiff- respondent's case besides the accounts books the most material evidence is his own deposition made while appearing as (P.W.7). He stated that on 18th October, 1973, Ghulam Muhammad, Rabnawaz and Allah Bakhsh, appellants, alongwith Muhammad Ashraf (defendant No,9) and his brother Muhammad Latif came to him and introduced themselves as owners of firm 'Rashid & Company'. They offered to purchase cotton through his firm. Muhammad Ashraf (defendant No,9) posed as an agent of the said firm. The appellants paid Rs,21,000 as advance money and signed the corresponding entry made by him in the Roakar register Exh.P.2. They kept purchasing cotton upto 2nd February, 1974 and its accounts were kept in Khatas Exhs.P.3 and P.4 and Mall Roakar Exh.P.2 and P.5 regularly maintained in his own handwriting. According to the balance-sheet drawn up finally the appellants owed Rs,1,10,182.65 to him. He also stated that he delivered a bill to Rabnawaz, appellant, and obtained his signatures on its duplicate Exh. P.1, in the presence of Shah Muhammad and Shabbir Ahmad P.Ws. Another bill, copy of which is Exh.P.6 was sent to the appellants through registered post and also its copy was given to Muhammad Ashraf (defendant No,9).
4. From defendants' side, Rabnawaz, appellant, the cardinal witnesses, who appeared as D.W-3 stated that he alongwith his co-appellants contacted the respondent for purchasing cotton during 1973-74 season and advanced him Rs,21,000 and they signed the corresponding entry made in the Khata Exh.P.2. He denied that defendant No,9 stood surety on their behalf. He admitted purchase of only 751 Maunds 18 Seers of cotton upto 7th November, 1973 and stated that its entire price was paid up except a balance of Rs,135. He produced a copy of his Khata Exh.D.1. He denied if any notice through registered post was sent to them. He did not admit his signatures on duplicate bill Exh.P.1.
He denied that they carried on cotton business under the name 'Rashid & Company' but in cross- examination he broke down and admitted that they had opened a Khata with the respondent in the name of 'Rashid & Company' and have been dealing with the respondent under the said name and style. He admitted that defendants Nos. 2 to 8 are related inter se and belong to one family. He conceded that in the year 1975 his father and Ghulam Muhammad (father of Muhammad Hussain, defendant No,5) and Allah Bakhsh (defendant No,8) jointly purchased one square of land for a sum of Rs, 1,00,00 although they had suffered loss in cotton business. He admitted that when he wound up business with the respondents' firm he received a final bill from him but he destroyed it. He also admitted to have received various Katcha bills from the respondent but those too were torn away by him.
5. Learned trial Court having considered the material in record found that the respondent's firm was registered under the Partnership Act vide registration certificate Exh.P.3 and that court-fee of Rs,8,065 was correctly paid and decided issues Nos.2 and 3 against the defendants. Issue No,4 was decided against the plaintiff-respondent. On issues Nos. 1, 5 and 6 the findings of the learned trial Court are that defendants Nos.2 to 5 were not the partners of firm 'Rashid & Company', hence not liable to pay any amount to the plaintiff-respondent and that it were the appellants (defendants Nos. 6 to 8) who purchased cotton through the respondent's firm and a sum of Rs,1,10,182.65 is due from them to the respondent's firm as balance.
6. Learned counsel appearing on behalf of the appellants before us has assailed the finding on issue No,6 alone on two-fold grounds. Firstly the plaintiff-respondent failed to produce the Khata Bahi and Roakers at the time of filing of the plaint as required under Order VII, rule 17, C.P.C. Which is aimed at providing a fair chance to the defendant to know the documentary evidence proposed to be led against him and chalk out his defence accordingly. As this was not done, therefore, the appellants' case was gravely prejudiced and the impugned judgment and decree is, liable to be set aside. Secondly, the suit being a money suit and based on account books the plaintiff- respondent was under a statutory duty to prove each and every entry existing in the Khatas and Roakers according to section 34 of the Evidence Act but the respondent has failed to do so, therefore, the suit must fail. In this regard reliance has been placed on Lakshami Narayan Jew v.
Province of East Pakistan 1969 SCMR 898.
6-A. Learned counsel appearing on behalf of the plaintiff-respondent replied that the copies of all the documents viz, notices and bill relied upon by the plaintiff-respondent were attached with the plaint and regarding Khatas and Roakers, in para. 6 of the plaint, it was mentioned that they would be produced in evidence at the trial. Also they were mentioned in the list of documents relied upon.
He further submitted that rule 18 of Order VII, C.P.C., envisages that the documents ought to be produced at the time of presentation of the lain, if not produced they can be admitted in evidence at the hearing of the suit with the permission of the Court and since the documents were referred to and exhibited during the trial it implies that the Court had permitted their production and admitted them in evidence. He next submitted that the entries existing in the Khatas and Roakers had been proved by Faiz Ahmad, plaintiff-respondent, while appearing as his. Own witness as P.W- 7 who actually made those entries and regularly maintained account books in the ordinary course of business.
7. It may be mentioned that the account books on the basis of which the plaintiff-respondent has sued the appellants were not produced at the time of filing of the plaint but they were mentioned in the list of documents relied upon by the plaintiff-respondent and also a note in the plaint was given to the effect that they would be produced at the time of evidence. We have noted that all these books were produced at the time of evidence and were exhibited which shows that the learned trial Court had permitted their production and received them in evidence at the time of hearing of the suit, therefore, the violation; if any, of rule 17, Order VII stands cured. As for the objection regarding proving of entries in the account books we may observe that according to section 34 of the Evidence Act the entries in books of account regularly kept in the sourse of business are relevant. We have seen the account books and feel. Satisfied that they were regularly maintained in the course of business. We are conscious that these entries being self-serving type of evidence 8 cannot be taken as the conclusive proof of the claim of the plaintiff-respondent for charging the appellants with liability without corroboration. For that matter there exists the evidence of Faiz Ahmad, plaintiff-respondent (P.W.7). The claim of the respondent is further corroborated by the evidence of Shah Muhammad (P.W.1) and Shabbir Ahmad (P.W,5) who have stated that in their presence Rubnawaz, appellant, received a bill from the respondent and signed its duplicate copy Exh.P.1. Rubnawaz, appellant, has denied his signatures on Exh.P.1 but on comparing his signature on Exh.P.1 with his admitted signatures on Ex.P.2 we find that they have marked similarity. If the plaintiff-respondent had to put up a bogus claim against the appellants he could set up a claim for the total cotton purchased through him valuing Rs,5,53,601.88 but he did not do so. It further provides some sanctity to the claim of the respondent for Rs,1,10,182.65. Again, conduct of the appellants in refusing to accept the registered notices and then making no protest against the correctness of the amount shown as due from them in duplicate bills Exh.P.1 and Exh.P.6 means that the appellants impliedly accepted them to be correct and genuine.
8. There is yet another circumstance which weighs heavily against the appellants, that is that Rubnawaz appellant admitted that he had been receiving bills from the plaintiff-respondent periodically and also he received a consolidated bill at the close of business but he had destroyed all of them. This is not expected of a businessman who had yet to settle his accounts with his counterparts at the end of the cotton seasoned, Failure to produce those bills leads us to the conclusion that they were withheld for they were not in keeping with the stand taken up by the appellants. We also find that Khata D-1 produced by the appellants has been rightly rejected by the trial Court.
9. For what has been stated above, we find that the impugned judgment and decree passed by the lower Court is based on legal and cogent evidence. It does not suffer from factual or legal infirmity either, warranting interference by this Court.
10. Consequently this appeal fails and is dismissed with costs.