MIAN SAQIB NISAR, J.- This is a revision petition against the judgment and decree dated 24.4.1984, whereby the Appellate Court accepted the appeal of respondent which she had preferred against the judgment and decree dated 16.9.1981, dismissing her suit for recovery of sum of Rs.24081/-.
2. Briefly stated the facts of the case are that the father of respondent No. 1 gifted a car and had sent the same to respondent from England in March, 1979. In order to clear the car, she applied to the concerned authorities through an application dated 9.5.1979, for issuance of import permits.
This application was not signed by the respondent herself, rather had been moved by her husband as her attorney.
3. The application was not entertained because under the memorandum issued from the office of Chief Controller Import and Export, application signed by Attorney was not acceptable, consequently after curing the defect, respondent was constrained to file another application on 12.5.79, with her own signature. This second application was belated by two days, not considered within time, therefore, import permit was refused to the respondents.
4. Respondent No. 1 availed Departmental remedy and ultimately, succeeded to get the relief in a revision before Secretary Minister of Commerce.
5. After acceptance on her revision, respondent filed a suit for recovery of Rs.24081/- claiming that she had to pay the demurrage for delay in clearance of car and had also spent money in getting it repaired.
6. This suit was contested by the petitioner on factual as well as legal grounds. Learned Civil Judge after framing issues and recording evidence of the respondent, dismissed he suit on 16.9.1981. For convenience, relevant issues are reproduced:-
(2) Whether the plaintiff has no case of action against defendants to file the suit? OPD
(3) Whether the plaintiff's application was not submitted within stipulated date and as such she was at fault for the late clearance, of her car and rightly suffered demurrage? OPP
7. lt may be pertinent to state that petitioners-defendants were proceeded ex parte and thus no evidence was produced by them.
8. An appeal filed by the respondent was accepted on 24.4.1984 and her suit was decreed. Hence this petition.
9. Learned Deputy Attorney General has argued that the respondent has failed to establish any wilful negligence or mala fide on the part of the petitioners, therefore, she was not entitled to claim any damages, lt has been argued that initially application was moved by the respondent on 9.5.1979, which was not in accordance with the office memorandum issued by the Chief Controller Import and Export and thus was not entertainable as it was not signed by the respondent herself.
Second application was moved on 12.5.1979, which was barred by two days, consequently, the permit was rightly refused to her. lt has been further stated that the Appellate Court has failed to apply his independent mind to the facts and circumstances of the case and admitted position on the record, rather in a mechanical manner has relied upon the order passed in revision by the Secretary Ministry of Commerce. Even this order in any manner does not show that the petitioners Nos. 1 and 2 were either wilful, negligent or acted with mala fide.
10. On the other hand, it is stated by the learned counsel for the respondent that there is nothing on record to show that any other application except the one dated 9-5-1979, was filed by the respondent and therefore, basis of petitioner's argument is absolutely misconceived and against the record. He has strongly supported the judgment and decree passed by the Appellate Court.
11. I have considered the arguments of both the learned counsel and have also perused the record and judgments of the Court below.
12. The finding of Appellate Court is that there is no evidence on record to show that any application was moved by the respondent on 12.5.1979, therefore, her earlier application dated 9-5- 1979, should have been processed by the concerned authorities and the same being within time permit could not be refused to her. I am afraid that this view taken by the Appellate Court is not correct, in the grounds of appeal filed by the respondent herself, she in paragraph No. 1 has admitted that the application was filed on 9-5-1979 prior to the prescribed date i.e. 10-5-1979 and the defect of non-signing the application by the respondent was removed on 12-5-1979. This admission itself is sufficient to show that respondent's earlier application was not according to law and it was in consequences thereof that another application was filed on 12.5.1979. The findings of the Trial Court on Issue No. 3, on the reading of respondent's evidence are to the same effect. This second application was admittedly beyond the prescribed time for filing the application.
13. The view taken by the petitioners in refusing to grant her permit on the basis of belated application, ultimately may have been found faulty or erroneous by the revisional authority, but the acceptance of her revision does not prove in any manner that the petitioners had acted with wilful negligence or mala fide. The petitioners were bound by Departmental instructions and could not entertain respondents first application which was defective.
14. The order of the revisional authorities reproduced in the impugned judgment does not show that there was any wilful negligence on the part of the petitioners, rather the Revisional Court has come to the conclusion that despite the defect in the earlier application dated 9.5.1979, the respondent was entitled to the grant of import permit. Only be virtue of the acceptance of the revision it cannot be conceived that the petitioners in any manner had acted with wilful negligence or mala fide. Even no mala fide has been alleged by the petitioners.
15. As it was incumbent upon the respondent to have proved the wilful negligence on the part of the respondent, in order to succeed in her claim which is lacking in this case due to the reasons explained above, I find that the Trial Court was absolutely right in dismissing the plea of the respondent.
16. The entire hypothesis of the Appellate Court is based upon the revisional order which by itself does not prove any negligence on the part of the petitioners. Conferring any case of action to the respondents, the findings of the Appellate Court that there is nothing on record to prove that another application was filed by the respondent on 12.5.1979, is also mis-reading of the evidence, as it is an admitted fact by the respondent in the grounds of her appeal, as well. As the judgment of the Appellate Court is based upon misreading of record, therefore, I accept this revision petition, by setting aside the judgment and decree of the Appellate Court, Upheld the judgment and decree of the Trial Court. No order as to costs.