ORDER MALIK MUHAMMAD QAYYUM, J.- This application seeks review of the judgment and decree dated 8.6.1998 delivered by a Division Bench of this Court comprising myself and my learned brother Mian Saeed ur Rehman's Farrukh, J. (as he then was) by virtue of which the petitioner's appeal against the judgment and decree of the Trial Court dated 31.7.1989 was dismissed.
2. The background in which this application arises is that the petitioner which is a Company incorporated under the Companies Ordinance, 1984 filed a suit for recovery of Rs.10,19,65,500/- against the respondent in which it claimed that it had acted as an agent for the respondent- Company to secure contract for the supply of machinery to be installed in Jamshero Thermal Power Plant in Units Nos. 2 and 4 and was entitled to recover the commission for the services rendered. The Trial Court dismissed the suit on the finding that the petitioner was never appointed as an Agent by the respondent. The dispute between the parties to the appeal mainly related to the above question which had been reduced in the form of issues Nos.4 and 5 which reads ad under:-
(4) Whether there exists any privity of contract between the parties as an agent and principal? OPP
(5) Whether the plaintiff acted as an agent of defendant to secure the contract in question? OPP
3. The arguments of the learned counsel for the parties were heard to some extent on the appeal.
They were permitted to supplement the arguments by filing written notes. Ultimately, the appeal was dismissed by the Division Bench on 8.6.1998.
4. This petition has been placed before me singly in view of Order 47 rule 5, CPC which ordains that if one of the Judges deciding the case was permanently not available, the review application shall be heard by the other Judge, if he remains to be a Member of the Court.
5. Mr. Shahzad Jehangir, learned counsel for the petitioner has submitted that the judgment of which review is sought suffers from three types of errors apparent on the record, firstly, that the judgment is based on incorrect assumption that some of the documents were not on record while in fact, those documents had been produced in evidence; secondly, that the Division Bench assumed certain facts to have been proved though there was no evidence to that effect on the record and lastly, that there has been non-consideration of material evidence.
6. The learned counsel for the respondent has, on the other had argued that the errors pointed out by the petitioner's learned counsel are not such which could materially effect the judgment of this Court and notwithstanding the errors, the conclusion reached at by the Division Bench was justified in law and on facts.
7. Having heard the learned counsel for the parties and perused the record with their assistance, it becomes obvious that the judgment and decree under review suffers from errors patent on the record as will be presently shown.
8. In paragraph IS of the judgment delivered by the Division Bench, it was stated that:- "... Significantly, though in the plaint (para 12) there is mention of letter dated 19.10.1985 allegedly written by the respondent to the appellant to contact its delegation in Pakistan about the Power Project in question, the same has not been produced in evidence, with a view to show that the parties were in contact with each other on the subject."
However, as has been rightly pointed out by the learned counsel for the petitioner, these observations are contrary to the record inasmuch as letter dated 19.10.1985 is very much in evidence as Exh. P-22.
9. The learned counsel for the petitioner has also drawn my attention to the document Ex.P-13 which is the memorandum dated 13.5.1985 which has not at all been adverted to by the Division Bench while dismissing the appeal.
This memorandum was important in the context of the controversy before the Court as to whether the petitioner had been impliedly appointed as an agent or not. The non-consideration of this material document again constitutes error which is floating on the surface of record.
10. One of the grounds which weighed with the Division Bench while dismissing the appeal was that the petitioner had been black-listed by WAPDA. The relevant observation appearing at page 24 of the judgment reads as, "there is also evidence to the effect that the appellant has been black listed by WAPDA". According to the learned counsel for the petitioner, there is no such evidence and on the other had, two WAPDA officials had appeared as DW-5 and DW-6 and had stated that the story about black-listing of the petitioner was false and the documents relied upon were forged.
11. Again at page 25 of the judgment, it has been stated that "the so- called progress reports/telex messages are more in the nature of admission in favour of the appellant itself than anything else.
No effort was made to substantiate these reports by summoning of record/material from the concerned quarters." These observations are clearly based on misreading and non-consideration of the material on the record as PW-1, Nisar Hussain Khan, Deputy Secretary, Economic Affairs, Govt, of Pakistan had appeared and produced documents, Exh. P-I, Exh. P-2 and Exh. P-3. Similarly, Aziz Ahmad, PW-4, Deputy Director WAPDA had produced documents Exh. P- 4 and Exh. P-5. Neither the statements of these witnesses nor documents were taken into consideration while dismissing the appeal. Another important document which was not taken into consideration by the Division Bench was Exh. P-2, which proved the payment of US $ 65 million to the respondent by Dau tche Bank.
According to the learned counsel for the petitioner, there are other documents which have not been considered by the Bench while deciding the appeal, which are Exhibits P-3, P-15, P-22 and P-
23. All these documents had material bearing on the decision of the case.
12. It follows from the above that there has been misreading and non-consideration of material evidence and the judgment under review suffers from errors floating on the surface of the record.
13. The contention of the learned counsel that the errors in the judgment have not affected the decision of the case, is not well-founded. As discussed above, important pieces of evidence have been completely ignored while certain assumptions have been made which are not supported by the evidence or are based upon its misreading. I have purposely refrained from going into the respective merits of the parties inasmuch as after review, the appeal will have to be heard by a Division Bench being a Regular First Appeal.
14. In view of what has been said above, this application is allowed, the judgment and decree dated 8.6.1998 is set aside with the result that the appeal shall be deemed to be pending before this Court and shall now be placed before a Division Bench for its decision afresh.