1. ' This second appeal under section 100, C. P. C. Is filed by ,the plaintiff/ appellant against tHe judgment and decree of Vth Additional District Judge, Karachi passed in Civil Appeal No, 454 of 1976 reversing the judgment and decree of the trial Court and dismissing the suit of the plaintiff/appellant.
2. ' The plaintiff instituted a suit in the trial Court for recovery of a sum of Rs, 8 141 being the amount of five alleged bills relating to the supply of wine to the respondents. I he plaintiff also claimed in the suit a sum of Rs, 2,000 being the interest on the above amount of bill from the date of supply of wine till the filing of the suit besides claiming future interest at the rate of 9% per annum from the date of filing of the suit till the amount was paid. The suit was resisted by the respondents and it was pleaded that they are not liable for claim in the suit. On the basis of the controversy between the parties the following issues were framed by the trial Court :- "(1) Whether the plaintiffs firm is a registered firm ? If not its effect?
(2) Whether the defendants placed orders to the plaintiff for the supply of wines during the months of April, May and July, 1969 ?
(3) Whether the plaintiffs delivered the said goods to the defendants ?
(4) Whether the plaintiffs are entitled to a sum of Rs, 8142 from the defendants ?
(5) What should the decree be ?"
3. ' Issue No, 1 was not pressed before the trial Court and on. Issues Nos. 2, 3 and 4 the trial Court held in favour of the appellant/plaintiff and accordingly decreed the suit. The learned First Appellate Court, however, reversed the decree of the trial Court and held that the burden of proof which was on the appellant/plaintiff in respect of the claim in the suit was not discharged and therefore, the claim was not substantiated. The judgment and the decree of the First Appellate Court has been challenged in this second appeal and I have heard at length the learned counsel for the parties.
4. ' It is contended by the learned counsel for the appellant/plaintiff that the reversal of the findings by the First Appellate Court was on insufficient ground and the burden of proof was wrongly shifted on the plaintiff/ appellant. It was urged by the learned counsel that the evidence on record establish the case of the plaintiff and suit was rightly decreed by the trial Court. In the written statement filed before the trial Court the plaintiffs claim was denied by the respondents on the ground that the plaintiff had not filed any order alleged to have been placed with the defendants and the defendants also did not have any such order in their record. It was admitted that before filing of the suit the plaintiff had brought the matter to the notice of the defendants bu they were asked to produce order or acknowledgment regarding supply of the goods but they failed to satisfy the defendants and as such no payment was made to them. Regarding service of the notice prior to the filing of the suit by the plaintiff the defendants alleged in their written statement that no such notice appears in their record and, therefore, they did not accept the receipt of the notice. The plaintiff in support of his claim in the suit examined one of his employees Ayazur Rehman. This witness in his examination-in-chief stated that he is the sale representative of the plaintiff and that the plaintiff used to supply wine on orders to the defendants from time to time. He further stated that some of the orders used to be on telephone and he used to go personally to deliser the goods to the defendants. It was stated by the witness that one Mr. Jamshed of the respondents used to place the orders and no other person. He categorically stated that between April, 1968 to 1969 five orders were placed by the defendants for wine which were supplied by the plaintiff and he produced five duplicate bills as Exhs. 7 to 11 which carry the seal of the respondents'
5. Company besides some signature. The witness also stated categorically that Exhs. 7 to 11 bear signatures of defendants' men and stamps of the defendants. This witness produced notice, dated 4-11-1971 served on the respondents before filing of the suit as Exh. 12 and its acknowledgment as Exh.
13. He also stated that in spite of receipt of this notice the respondents did not send any reply. In cross-examination the witness admitted that the orders relating to bills (Exhs. 7 to 11) were not placed in writing but they were oral orders. He also admitted that Jamshed of defendants did not sign the duplicate bills namely Exhs. 7 to 11. The address indicated on Exh. 13 was not disputed although a suggestion was made in the cross-examination that notice Exh. 12 was not received by the defendants which was denied by the witness. There was no suggestion in the cross- examination of this witness that the seal of the defendants affixed on the duplicate copies of the bills Exhs. 7 to 11 was forged or manipulated or that this seal was not put by the defendants. The respondents in their defence examined their manager Cowas Rustamji. This witness in his examination-in-chief stated that the order' placed by the plaintiff for supply of goods to the respondents used to be mostly in writing He also stated in his examination-in-chief that the respondent used to import wines and also made local purchases. He categorically stated that one Jamshed is the incharge of the wines section and he alone used to handle the transaction relating to the wines. He stated that Jamshed used to receive the delivery of wines from outside and be used to take them out. He also stated that Jamshed is out of Karachi since last two months. He denied that any of the bills are signed by Jamshed and further stated that to his knowledge they do not bear the signatures of any of the hotel employees. In cross-examination this witness admitted that he had no power-of-attorney to depose on behalf of the respondent nor he gave instructions with regard to written statement fiied in the suit. He also admitted in cross- examination that it is only Jamshed who had power to purchase wine and he does not deal with the wine department. To a further question in cross-examination this witness stated that he had stated in the examination-in-chief that orders were used to be placed in writing on the basis of his general knowledge and not on specific instructions. He further stated that he could not say if during the month of April, May and July, 1969 any orders were placed by Jamshed for supply of the wine.
6. He was confronted with Exh. 12 and be stated in reply that he does not know anything about it. He was also shown Exhs. 7 to 11 and he stated that the seals of Exhs. 7 to 11 were similar to those of Hotel Metropole. He admitted that seals and signatures are taken after delivery of the goods. He also admitted that Jamshed is still the employee of the hotel and he alone can give the correct picture of the wine department. From the above discussed evidence it is quite clear that the evidence of Cowas Rustamji examined by the respondents in support of their stand in the case was of no assistance as the witness was not at all conversant with the dealing of wine department and categorically stated that it was Jamshed alone who was in a position to state the fact relating to the transaction of wine. The learned First Appellate Court was much influenced with the fact that the appellant's witness admitted in cross-examination that the duplicate copy of the bills produced in the case were not signed by Jamshed. The First Appellate Court was also influenced by the tact that the defendant had not named the person who had received the goods. The First Appellate Court also took note of the fact that the respondents' witness Cowas Rustamjee stated in his evidence that the orders were placed by Jamshed exclusively. Another factor which influenced the learned First Appellate Court was that the appellant being a partnership firm must be maintaining accounts therefore, a presumption should be drawn against them. With regard to bills Exhs. 7 to 11 the learned First Appellate Court came to the conclusion that these bills were not proved by the appellant. On consideration of the above grounds the decree of the trial Court was reversed by the First Appellate Court and the suit instituted by the plaintiff was dismissed. None of the considerations which prevailed the learned First Appellate Court was sufficient for reversal of the decree of trial Court. The delivery of the goods to the plaintiff is evident by Exhs. 7 to 11 which not only carry the seal of the defendants but they are also signed by some person who according to the appellant's witness were the men and employees o the respondents. There was a categorical statement by the witness of the plaintiff who personally delivered these goods to the respondents that these supplies were made to the respondents against the bills Exhs. 7 to 11. There was no suggestion in the cross-examination that these bills were either fabricated or forged or that they did not bear the, stamp of defendants. It may be mentioned here that in the written statement th respondents had relied on the record of the company to deny the claim of the plaintiff appellant and, therefore, it was for them to have produced their accounts in support of their stand in the suit.
7. The plaintiff's witness was not put any question in cross-examination with regard to the accounts maintained by the plaintiff nor any suggestion was made to the witness of plaintiff/appellant that the supplies of wine made to the respondents/ defendants are not entered or shown in the accounts of the appellant. In these circumstances there was no justification for the First Appellate Court to have drawn an adverse inference with regard to the non-production of the account books of the appellant as their production was never required by the respondents in the cross- examination of the appellant's witness. Similarly, the fact that the plaintiff's witness had admitted in cross-examination that the bills are not signed by Jamshed was not of much importance in case as it was not the case of the plaintiff in the examination-in-chief that the bills were signed by Jamshed or that the. Delivery was offered and received by Jamshed personally. The plaintiff's witness who haddelivered the goods to the respondents only stated that the supplies were made to the defendants and the bills were signed in token of the receipt of the supplies by the men of the respondents. In these circumstances, the admission relied by the learned First Appellate Court was not of any real importance. The learned First Appellate Court also refused to rely on the stamps of respondent's Company on Exhs. 7 to 11 although the respondents' witness admitted in cross- examination that the seals appearing on these documents are similar to that of the respondents' seal and he also admitted that he was not aware of any of the transaction relating to the wine department which Mr. Jamshed alone will be able to testify it. In this state of evidence the absence of examination of Jamshed who was admittedly theemployee of respondents on the date the evidence was recorded in the suit was fatal to the stand of the respondents moreso wher the witness Cowas Rustamjee examined by the respondents himself stated that it was Jamshed alone who could say about the transaction relating to the wine department. The plaintiff closed his evidence in the case on 27-3-1975 and thereafter the defendants produced his evidence on 26-10- 1975. Although it is stated in the statement of Cowas Rustamjee that Jamshed is out of station for two months but that alone was not sufficient reason to dispense with the examination of that witness who according to the statement of Cowas Rustamjee was the only person who could testify the real facts relating to wine department. Apart from it the judgment in the case was announced after about a year of the examination of Cowas Rustamjee but no application was made either before the trial Court or before the First Appellate Court by the respondent to produce Jamshed in evidence. In these circumstances, there was hardly any justification for reversal of the judgment and the decree of the trial Court. I accordingly accept this appeal, set aside the judgment and decree of the First Appellate Court and restore the decree passed by the learned trial Court. However, I find that in so far the claim of the interest prior to the filing of the suit is concerned the trial Court was not justified in granting the same I accordingly while restoring the judgment and decree B of the trial Court modify to the decree to the extent that the suit shall be deemed to have been decreed only in the sum of Rs 8,142 with costs and interest will be payable at the rate of 6% per annum from the date of filing of the suit till the amount is paid. Decree to follow accordingly.
8. L D 1986 Karachi 234 Before Tamil-ur-Rehnian, MESSRS WORLD WIDE TRADING Co.-Plaintiff versus SANYO ELECTRIC TRADING Co. LTD. AND ANOTHER- Defendants Suit No, 911 of 1985, decided on 23rd February, 1986. (a) Contract Act (I of 1872)- -- Ss. 182 to 238-Agency--Creation of-Agency with interest-Termination of such agency how and when possible-Memorandum of agreement-Interpretation.
9. Section 182, Contract Act, 1872 defines an agent as a-person employed to do any act for another or to represent another in dealing with third persons. Section 186 provides that the authority of an agent may be expresS or implied. Section 189 authorises an agent, in emergency, to do all such acts as are required for the purpose of protecting his principal from loss. Sections 201 to 210 deal with revocation of authority. An agency is terminable by the principal revoking his authority, or by the agent renouncing the business of the agency, and where the agent. Has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of express contract, be terminated to the prejudice of such interest. Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make a compensation to the agent, for any previous revocation or renunciation of the agency, without a sufficient cause. When an agency is terminated by the principal, the agent is bound to take all reasonable steps for the protection and preservation of the interest entrusted to him.
10. Sections 211 to 221 provide for agent's duty to principal whereas sections 222 to 225 provide for principal's duty to agent. [p. 240]A The cardinal words defining an agent under section 182 are the "doing of an act by a person employed by another to do that act", while representing the principal in dealing with third persons. It may be under a power-of-attorney or a letter of appointment. [p.
11. 240]B It is difficult to ascertain with reasonable certainty the nature of the act which the plaintiff is to perform "for the principal' from memorandum of agreement. Simply the use of the word "agent" or "distributor" in the said Memorandum cannot be decisive so as to conclude the creation of "agency" in terms of the provisions of section 182 or some other sections of the Contract Act. By a bare reading of the said Memorandum it seems that the plaintiff is a "sole purchaser" of the products of defendant as borne out of the said Memorandums, to the exclusion of all other intending purchasers in Pakistan. For the purchase of the said products of defendant which the plaintiff makes or may make from defendant there is no limitation as to the quantity, price or commission. It thus appears that he becomes an owner in law of the said products purchased by him from defendant in that exclusive capacity, as there is no liability of the plaintiff to account qua these goods which, in law, is inconsistent with the obligation, generally speaking of an agent under the Contract Act. There seems to be no responsibility of the plaintiff to defendant as no obligation is created under the said Memorandums These two Memorandums do not say anything by way of commission chargeable on those products or for the acts done by the plaintiff to promote the sales, which the plaintiff, probably, could sell in the manner and at whatever price, it liked. There is also no entrustment of products of defendant with the plaintiff involving any fiduciary relationship as provided in section 212. In fact, the plaintiff becomes the owner of the products purchased by It from defendant. It is true that the advertisements do bear the words "sole agent" and "sole distributor", the expenses whereof were partly contributed by defendant No, 1, but an advertisement is in the nature of an adventure to promote the sale and a commercial incentive to the common interest of both the plaintiff and defendant. It cannot be taken to be an exclusive sign of conferring authority on the plaintiff as an agent of defendant. These advertisements and the purchases made by the plaintiff from defendant do not prove that the plaIntili was an agent within the meaning of section 182 of the Contract Act, as nothing happened pursuant thereafter, since there was no liability to account for to the principal for the purchase made by the plaintiff. The plaintiff's capacity described in the said two Memorandums as "exclusive agent" or "exclusive distributor" does not go alongwith and run parallel to the provision of section 182 and other provisions of the Contract Act, 1872, referred hereinabove and the transaction, prima facie, seems to be that of principal to principal. [pp. 240, 241]C There is a relationship between the plaintiff and defendant which is governed by the Memorandums themselves giving exclusive right of purchase of the produc s of defendant to the exclusion of all the population of Pakistan, within the period stipulated therein. Admittedly under the first Memorandum the contract, whether it is .Called 'agency' or `distributorship' or give it any other name, as per term contained in it automatically got extended up to 13th April, 1978 and in the case of second Memorandum, the contract got automatically extended upto 24th December, 1985. [p.
12. 242]E