Briefly stated the facts are that the plaintiff/respondent filed a suit for recovery of Rs, I ,98,133 against the defendant/ petitioner alleging that defendant/petitioner had been carrying on transactions with them w,e,f, 12-1-1994 to 7-1-1995 and as such the said amount was due to him.
The defendant/ petitioner contested the suit, raised as many as 5 preliminary objections. He admitted that he had been carrying on business with the plaintiffs/respondents but denied that any amount was outstanding against him. He thus prayed that suit be dismissed. From the divergent pleadings of the parties, the trial Court framed the following issues:--
(1) Whether the plaintiff is entitled to recover Rs,198,133 from the defendant? OPP (2). Whether plaintiff's suit is not maintainable in its present form? OPD
(3) Whether plaintiff's suit is not maintainable in view of preliminary objection No,1 of written statement? OPD
(4) Whether defendant is entitled to get special costs under section 35-A, C.P.C.? If so, then to what extent? OPD
(5) Relief.
2. In support of their stand plaintiffs/respondents examined Azhar Hussain P.W.1, Manzoor Ahmad P.W.2, Manzoor Ahmed son of Saleh P.W.3, Ghulam Rasool P.W.4, Abdul Qadir Qureshi, Advocate P.W.5 and thereafter closed their affirmative evidence. Conversely the defendant/petitioner examined himself as D.W.1. And brought on record statements of Nasar and Ghulam Nabi as D.Ws.2 and 3 respectively. He thereafter closed his evidence. The statement of plaintiff Manzoor Ahmad was recorded in rebuttal as P.W.6 and thereafter he closed his evidence.
3. After going through the evidence produced by the parties, the trial Court decreed the suit of the plaintiffs/respondents against the defendant/petitioner vide judgment and decree dated 1-11-1997.
The defendant/petitioner felt aggrieved of the same and assailed it by way of filing appeal which was heard and disposed of by the Learned Additional District Judge, Haroonabad, who dismissed the same vide judgment and decree dated 8-9-2000. Hence the instant civil revision.
4. Preliminary arguments have been heard and record perused.
5. Learned counsel for the petitioner has challenged the very institution of suit on the ground that it was hit by section 69(2) of Partnership Act, and placed reliance upon Mst. Shaista Begum v.
Government of Sindh and 2 others (1994 M LD 274) and Abdul Hamid v. Riaz Brother Commission Agents, Hafizabad (1986 CLC 242). He next argued that trial Court has relied upon extract from the Account Register Exh.P.1, without exhibiting the original register containing the said extract. He next argued that the trial Court has also relied upon a receipt Exh.P.2 whereby the defendant/petitioner has admitted his liability and asserted that even the said receipt could not be relied upon as two of its marginal witnesses had not been examined by the trial Court. He thus submitted that both the Courts below have misread the evidence and as such civil revision be admitted for regular hearing.
6. A perusal of record reveals that snit has been filed by the plaintiff/respondent against the defendant/petitioner for the recovery of Rs,1,98,133. The stand of plaintiffs/respondents is that defendant/petitioner had been purchasing pesticides and other articles from him as a result of which the said amount was outstanding against him. Conversely the stand of defendant/petitioner is that he had been carrying on business with the said firm but the disputed amount was not outstanding against him. To resolve this controversy the trial Court framed the issues referred above. It is also fact that to prove his averments plaintiff/respondent examined as many as six P.Ws. Including himself and also brought on record statement of account Exh.P.1 and receipt Exh.P.2, whereby defendant/ petitioner had admitted his liability to make the payment of outstanding amount against him. In rebuttal the defendant/petitioner examined himself and also brought on record statements of Naseer and Ghulam Nabi. It is evident from the cross-examination of D.W.1 that he had been making purchase from the plaintiff/ respondent and had also been accepting different amounts from him. He further admitted that he left the shop of plaintiff/ respondent on account of dispute over outstanding amount. So far as D.W.2 Naseer is concerned, he is unaware as to who had prepared receipt Exh.P.2. He further admits that he had never been visiting the shop of the plaintiffs/respondent. Ghulam Nabi D.W.3 has admitted that there had been a dispute between the parties over demand of certain amount regarding which even Punchayat had been convened. Thus even the evidence adduced by the defendant/petitioner clearly proves that parties had been transacting with each other and certain amount was outstanding against him/petitioner.
7. The evidence adduced by the parties has been scrutinised/analysed and scanned by the trial Court as well as by the Court of first appeal. Learned counsel for the defendant/petitioner has not been able to point out any illegality or irregularity what to speak of any material irregularity.
8. So far as the question of maintainability of suit on the basis of provisions of section 69(2) of Partnership Act is concerned, no such objection was either raised before the trial Court or the Court of first appeal, as such the same cannot be agitated in this Court. So far as the question of admissibility of extract P.1 and receipt P.2 is concerned, both the documents have been admitted in evidence without any objection on the part of defendant/petitioner. Thus the defendant/petitioner cannot be allowed to raise any objection regarding its admissibility at this fag-end of the day.
9. Be that as it may, section 115 of the Civil Procedure Code applied to case, involving illegal assumption, non-exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not,- in any way, affect the jurisdiction of this Court, no matter, however erroneous, wrong or perverse, the decision might be either on a question of fact or law, unless the decision involves a matter of jurisdiction:- An erroneous conclusion of law or fact is liable to be corrected in appeal, not revision will not be competent on such a ground, unless in arriving at such conclusion, an error of law is manifestly shown to have been committed.
10. Neither any such has been put forth or highlighted, not ' is seemingly available, so as, to attract or entail provisions of section 115, Civil Procedure Code, which thus, can neither, come into play nor press into service. Judgment and decree, now sought to be impeached and set at naught is accordingly unexceptionable as the same neither appears to suffer from any infirmity or any irregularity, what to speak of material irregularity, nor perversity or arbitrariness.
Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs.