' This second appeal has been filed against the judgment of learned [Ind Additional District Judge, Hyderabad dated 1-6-1971, whereby he had set aside the judgment of Civil Judge, Hyderabad, dated 9-8-1969 in Civil Suit No,885 of 1963 and decreed the suit of the respondent for Rs,10,000 with costs against the appellant.
2. The case of the respondent/plaintiff before the Civil Judge was that Muhammad Jamil, Muhammad Saeed and others were partners of the plaintiff's firm namely, M/s. Muhammad Jamil & Co. and used to run business at Hyderabad. This firm had dealings with Central Bank of India Ltd.( hereinafter referred to as the Bank) which has since been taken over by the Custodian of Enemy Property. The account with the Bank was being operated both by Muhammad Jamil and Muhammad Saeed. The respondents alleged that on 16-9-1960 the Bank fraudulently and without their consent transferred an amount of Rs,10,000 from their account and credited the same in the account of M/s. Yazdan Cotton Co. The respondents came to know of this fact in April, 1961 when they received their passbook with the above entry of debit from the Bank. Thereafter the respondents immediately wrote to the Bank that the amount was wrongly transferred debited from their account and credited to the account of M/s. Yazdan Cotton Co. Muhammad Jamil died in the meanwhile and the subsequent correspondence on the point continued between Muhammad Saeed and the Bank. As the Bank refused to retransfer this amount from the account of M/s. Yazdan Cotton Co. to that of the respondent, hence they filed suit.
3. In the written statement it was alleged by the Bank that on 2-9-1960 M/s.Yazdan Cotton Co. had advised them to transfer an amount of Rs,,10,000 from their account to that of the respondents by way of loan for 10-15 days, that on this advice the amount was transferred to the respondent's account and that on 16th September, 1960 the Bank received a telephone call from deceased Muhammad Jamil partner of the respondent's firm to retransfer the amount of Rs,10,000 from the account of the firm to that of Mis.Yazdan Cotton Co. It is, therefore, alleged that no amount is payable by the Bank to the respondent's firm.
4. On these pleadings following issues were framed by the trial Court:- "(1) Whether plaintiff is estopped from bringing the suit?
(2) Whether suit is barred under section 69 of Partnership Act?
(3) Whether suit fails on account of non-joinder of necessary parties?
(4) Whether defendant fraudulently misappropriated the suit amount?
(5) Is defendant liable to pay the amount to the plaintiff?
(6) What should the decree be?"
5. In support of the above issue the respondent's firm examined Muhammad Saeed only, as Exh.25.
He has produced 10 letters which are Exs. 30/1 to 30/10 saying that the Bank had wrongly transferred the amount of Rs,10,000 from the account of the respondent's firm to that of M/s. Yazdan Cotton Co. and further asking the Bank to credit this amount in the account of their firm.
This correspondence had taken place between 2nd May, 1961 to 2nd March, 1963. P.W. Muhammad Saeed was also confronted with the document (Exh.32) dated 1-7-1961 in cross-examination. This document is a letter dated 1-7-1961 from the Bank addressed to the respondent's firm saying that the balance debit of Rs,10,746.60 as on 1-7-1961 in the account of respondent's firm may be confirmed. Below this letter there is endorsement signed by Muhammad Jamil on behalf of M/s. Jamil & Co., as follows:- "We hereby confirm the correctness of the securities mentioned above and that the balance now due by me/us in the above account against the said securities inter alia is Rs,10,746.60 as at 30-6- 61."
6. In rebuttal the appellant Bank examined Razi Shah, the agent of the Bank, who has produced various extracts from the ledger of the respondents' firm and M/s. Yazdan Cotton Co. showing debit, credit and again debit of Rs,10,000 from the account of the respondent's firm, M/s.Yazdan Cotton Co. and the respondents firm dated 2-9-1960, 16-9-1960 and 16-9-1960, respectively.
7. The learned Civil Judge relied on the endorsement of Muhammad Jamil Exh.32 and held that the respondents/Plaintiffs are estopped from challenging the transfer of Rs,10,000 from the account of the firm to that of M/s. Yazdan Cotton Co. by the Bank. On this finding the suit was dismissed.
8. In first appeal the learned Additional District Judge relied on the correspondence Exhs.30/1 to 30/10 in which both Muhammad Jamil and after his death, Muhammad Saeed had, between the two dates mentioned above, been consistently denying any oral instructions having been given to the Bank in respect of transfer of Rs,,10,000 from their account to that of M/s.Yazdan Cotton Co. The learned first Appellate Court was also of the view that the burden of proving the oral instructions alleged to have been given by M/s. Jamil & Co. to the Bank, was upon the Bank, but the latter has failed to prove this allegation, hence, the plaintiff's suit was liable to be decreed.
9. I have heard arguments of Mr.Abdul Majeed learned counsel for the appellant, who has laid stress only on the endorsement of deceased Muhammad Jamil on. Exh.32 acknowledging the balance of Rs,10,746.60 on the debit side on 1-7-1961. The learned counsel has stated that this balance on the debit side of the, respondent's account also included the disputed amount of Rs,,10,000 which was transferred from their account to that of M/s. Yazdan Cotton Co. as long back as on 16-9-1960. This letter does not show that the balance includes the disputed amount. Had it been so, then Muhammad Jamil himself in his letter, dated 22nd May, 1961 Exh.30/1 would not have emphatically denied having given oral instructions to the Bank for transfer of Rs,10,000 from the account of the Bank. Again on 30-6-1961 Muhammad Jamil addressed a letter Exh.30/2 to the Bank in which he categorically stated that the amount of Rs,,10,000 was arbitrarily debited in their account on 16-9-1960. In the correspondence that followed right up to 21-3-1963, both Muhammad Jamil and after his death Muhammad Saeed, had been repudiating the claim of the Bank that there were any instructions on behalf of the firm for debiting Rs,10,000 on 16-9-1960 from their account. In the face of these documents which consist of correspondence between the respondent's firm and the Bank and which has not been denied by the Bank, it cannot be understood that in July, 1961 deceased Muhammad Jamil would have confirmed the debit of Rs,10,000 which related to 16-9-1961. Thus the endorsement on Exh.32 is of no help to the Bank and does not estop the respondent from claiming the amount of Rs,10,000 which in view of the lengthy correspondence which ensued between the parties for about two years, is proved to have been wrongly debited from the account of the respondents.
10. Mr. Abdul Majeed, learned counsel for the appellant has argued that the judgment of the First Appellate Court should be set aside on the ground that a very important document namely Exh.32 has not been taken into consideration. In support of this plea he has relied on the case of Muhammad Afsar and 7 others v. Allah Ditta and 13 others PLD 1970 SCMR 118. This decision related to second appeal under section 100, C.P.C. in which it was held by the Supreme Court that non-consideration of material evidence would vitiate finding of fact and could be interfered with in second appeal. He has also relied on the case of Madan Gopal v. Maran Bepari PLD 1969 SC 617.
This case also related to second appeal under section 100, C.P.C. It was held, by the Supreme Court in this case that finding of fact of First Appellate Court, which is at variance with that of trial Court, ordinarily prevails but it would not possess the same value or sanctity as of concurrent findings. It was further held that if finding of Lower Appellate Court is not supported by evidence on record or if the Appellate Court to take into account material evidence or not revealing logical basis for differing from finding of the trial Court, then such finding of the First Appellate Court can be interfered with in the second appeal.
11. The only piece of evidence which, according to Mr. Abdul Majeed Khan, has not been considered by the learned appellate Court is Exh.32. It has been shown in para. No, 9 above that even if the document Exh.32 had been considered, the result would not have been any different. The above decisions are therefore, of no assistance to the learned counsel.
I therefore, do not find any reason to take exception to the view that has been taken by the First Appellate Court. Consequently the appeal fails and is dismissed. As none was present for the respondents, hence there shall be no order as to costs.