' AFTAB HUSSAiN, J.-The learned trial Court passed a final decree in a suit for dissolution of partnership and rendition of accounts for a sum of Rs, 3,493.07 on the 20th of March 1970 in favour of the plaintiff-respondent and against the present appellant with costs. This decree was set aside on an appeal filed by plaintiff-respondent and the matter was remanded to the learned trial Court by an order dated 1-12-1971 passed by Mian Ghulam Ahmad, Additional District Judge, Gujranwala.
2. Hence this appeal.
3. Muhammad Bakhsh, appellant, and Nizam Din, respondent entered into a partnership agreement in the year 1948 to carry on business in the name of Premier Safe Company. This firm was registered under the Partnership Act. On the 1st February 1955 Nizam Din filed a suit for dissolution of partnership and rendition of accounts. He reproduced the alleged terms and conditions of the partnership in para. 2 of the plaint to the following effect:
(1) The parties were to share the profits and be liable to losses in equal shares.
(2) They were to invest capital in the business in accordance with their shares. The plaintiff had initially invested a sum of Rs, 6,800, while the defendant-appellant had invested in the beginning a sum of Rs, 3,300, but it was settled that he would make up the deficiency of his investment.
(3) The defendant-appellant was required to keep accounts and cash and also deposit money in the Bank in the name of the firm.
(4) Accounts were to be rendered in the beginning of each year, but the bulk of the share of profits was to be invested in the business for some time in order to improve it. Only a small share of the profits was to be appropriated by the two partners.
(5) The plaintiff was to look after the business of the firm in different cities outside Gujranwala.
(6) The partnership was agreed to be terminable on one month's notice.
4. It was further alleged that the business was run profitably and each year's profit was invested in it. In the year 1952 the relations between the parties became strained with the result that the defendant turned the plaintiff out without rendering any accounts. The defendant also filed a false complaint under section 406 of the P. P. C. Against the plaintiff which was pending on the date of institution of the suit. On the 19th of December 1953 the parties agreed to refer the matter to arbitration, but the defendant did not fulfil his part of the agreement. Ultimately an arbitration agreement dated 20th June 1954 was executed, but the defendant sabotaged it by prevailing upon one of the arbitrators to agree not to act and he, therefore, showed his inability to act as such.
5. The defendant-appellant in his written statement pleaded that the partnership had come to an end in the year 1950 when the plaintiff after misappropriating considerable amount belonging to the partnership left it. Regarding the allegation about investment he alleged that as would be proved by the plaintiff's letters, he had no money to invest the entire investment was made by the defendant. He invested a sum of Rs, 19,171-01-06 in the beginning and had been later on adding to this investment. Bulk of this investment was misappropriated by the plaintiff on which a complaint under section 406/420, P. P. C. Was filed against him in January, 1953 in which he had been charge- sheeted. It was also alleged that the plaintiff was liable to maintain the accounts, but at the time of termination of the partnership he had taken all the Account Books with him. Reference to arbitration was admitted, but the allegation about the part attributed to the defendant in sabotaging it was denied. In para. 6 it was further said that the defendant did not maintain any account even after dissolution of partnership in the year 1950 since when he had been carrying on the business as its sole proprietor.
6. Issues Nos. 3 and 4 were framed by the learned trial Court on the question whether the partnership had been dissolved and if so, whether the plaintiff was entitled to rendition of accounts, if so, for what period. As stated above, the basis of the dissolution of partnership was Ye misappropriation of a large sum belonging to the firm by the plaintiff. In his statement the defendant disclosed that this sum amounted to Rs, 40,380. This story of misappropriation of the partnership funds was not believed since no documentary or oral evidence was produced in support of this contention except the bare statement of the defendant. The defendant produced some documents to prove that a notice for dissolution of partnership was served by him upon the plaintiff. This evidence was also disbelieved. The learned trial Court took note of certain letters Ms. P.
6 to P. 9, written by the which disproved the story of the relations between the parties being strained or the alleged dissolution. On the other hand they proved that relations between the parties were quite cordial and the parties had been carrying on business of the partnership. The learned Court placed reliance upon a form Exit. P. 1 dated 29-12-1953, to which copious reference will have to be made in the later part of this judgment, which had been jointly submitted by the parties to the Rehabilitation Department for the allotment of the premises of the Premier Safe Company, &h. P. 2 an allotment order dated 25-2-1954 in favour of both the parties, and Exh. P. 10 a certificate of registration of the firm dated 29-1-1951. It was proved beyond any shadow of doubt from these documents that the story that the firm stood dissolved in 1950, was false within the knowledge of the defendant A finding of the subsistence of the partnership was given on Issue No, 3 by the learned trial Court. Under Issue No, 4 it was held that the defendant was the accounting party. His allegation that the plaintiff had taken away the Account Books was disbelieved, As a result of these findings the learned trial Court passed a preliminary decree for dissolution of the partnership and for rendition of Accounts holding the parties to be entitled to equal share in the partnership business. The learned Judge appointed Mian Abdul Hamid, Pleader, as Commissioner to go into the accounts and also as a receiver to manage the business pending the settlement of accounts.
6-A. The defendant-appellant filed an appeal against this preliminary decree which was dismissed by Mian Muhammad Saleem, District Judge, Gujranwala on the 18th of May 1962 on a similar appreciation of the evidence of the parties. Mian Abdul Hamid, prepared inventory of the machinery and material found at the premises of the firm on the 25th of January 1957.
7. It is clear from the record that the defendant neither produced the accounts before the Local Commissioner nor put in appearance before him. Mian Abdul Hamid at his request was allowed to relinquish his duties as a Local Commissioner on the 25th of May 1964. In his place Mr. Jamil Hassan Manj, Advocate, was appointed. The parties appeared before Mr. Manj where Muhammad Bakhsh reiterated his plea that the Books of Accounts were with Nizam Din, although this plea had been turned down by the learned trial Court earlier. The Local Commissioner submitted a report on the 10th of December 1964 complaining that both the parties were not cooperating with him and were suppressing the truth and both of them are responsible about the loss of the record. This report, so far as the allegations against Nizam Din, plaintiff are concerned was incorrect and was contrary to the finding of the learned trial Court given at the time of passing of the preliminary decree that the defendant was the accounting party and he had to produce accounts.
8. When this report came up before the learned Senior Civil Judge, Muhammad Bakhsh insisted that the burden of proof was on the plaintiff and he himself was legally required to produce evidence in rebuttal. This was opposed by the counsel for the plaintiff. The Court held that as the defendant had been found to be an accounting party, the onus was on him to lead the evidence in support of his plea as to what amount was due to the parties from each other. Ho further observed that the defendant cannot escape his liability by raising the plea that the Account Books were never with him. The defendant was held liable to lead his complete ' evidence "in the form of production of documents etc. And oral evidence and after the close of his evidence", the plaintiff was held to have a right to lead evidence in rebuttal. It appears that Nizam Din had shown lack of confidence on the Local Commissioner, which does not appear to be unjustified in view of the above report blaming him for non-production of the record, but this objection was withdrawn by him. The matter was again referred for inquiry to Mr. Jamil Hussain Manj ride order dated 19-1-1965. After about 1i years the Commissioner gave another report, but the same was considered meaningless by the learned Court and was returned on the 9th of June 1966 with a direction that he should give his finding after recording evidence. He was further directed to act under the C. P. C. And take ex parte proceedings if a party did not put in appearance. The appointment of Mr. Manj was revoked on the 24th November 1966 for his failure to submit any report. Mr. Jamshed Ahmad, Advocate, was then appointed a Local Commissioner.
9. It appears from the record that in spite of the direction of the learned trial Court that the defendant should produce his evidence first, Muhammad Bakhsh applied to Mr. Manj to direct the plaintiff to produce all the documents relied upon by him. A notice as required under Order XII, rule 8 dated 18-5-1965 was also sent to the plaintiff calling upon him to file "all books, papers, letters, copies of letters and other documents in your custody, possession or power containing any entry, memorandum or minute book relating to the matters in question in this suit". An objection was raised to this procedure. In spite of the fact that Muhammad Bakhsh had not produced any evidence and had been dilly dallying, the Local Commissioner observed on different dates that none of the parties wanted to produce evidence.
10. Mr. Jamshed Ahmed was appointed a Local Commissioner after the withdrawal of the order of appointment of Mr. Mani Mr. Jamshed Ahmed recorded the statement of Muhammad Bakhsh on the 19th of February 1967. The defendant denied that he had any accounts, yet he produce Exhs. D. 1 to D. 14, receipts of payment and other documents of the firm Nizam Din, Muhammad Bakhsh. He stated that the amounts paid by these receipts were paid by him from his own source and not by Nizam Din. He further stated that his investment amounted to Rs, 15,871-07-6. In support of this statement he relied upon a receipt Exh. D. 14 dated 30th of March 1949 issued by the Pakistan Iron and Steel Syndicate in the name of Messrs Premier Safe Company. Although the firm had started business in 1948, but he insisted that this amount was spent by him alone in the purchase of Iron steel. He also relied upon a copy of the application for allotment of Evacuee industrial concern Premier Safe Company in proof of Rs, 14,871 being his investment. According to him this document was produced by the plaintiff and he (Muhammad Bakhsh) admitted its contents. In cross- examination, questions were put to him on behalf of the plaintiff to prove the incorrectness of these contents, but they were not allowed by the Local Commissioner. However, it transpired that this document was not exhibited. After close of the statement of Muhammad Bakhsb, the plaintiff's evidence was closed under Order XVII, rule 3, C. P. C. The Local Commissioner submitted his report to the Court on the 19th of February 1967 in which he criticized Muhammad Bakhsh. He reported that Muhammad Bakhsh was not in a position to invest Rs, 14,871-07-6 in the firm. According to the Local Commissioner both the parties must have invested this amount. Regarding the form of allotment dated 29-12-1953 which as stated above, was relied upon by Muhammad Bakhsh and which did not bear any exhibit mark, it was reported that in that form this investment was admitted to be that of the defendant. It was, however, observed that all the entries in it were in English language. The defendant had signed on It in English while the plaintiff had signed it in Urdu. He further stated that this form was not exhibited. He criticised the statement of Muhammad Bakhsh in almost all respects and refused to believe him.
11. It may be recalled that the form of application for allotment dated 29-12-1953 was exhibited as Exh. P. 1 in the proceedings before the passing of the preliminary decree by the Court. This form does not appear to have been on the record when the evidence of Mohammad Bakhsh was recorded. The form which was relied upon by Muhammad Bakhsh was found unexhibited by the Local Commissioner. It means that P. 1, the exhibited document had before that been removed from the file. When the file was received in Court, even that unexhibited form was missing. On the 20th of March 1967 the learned counsel for the plaintiff brought this fact to the notice of the learned Judge, who directed the Ahmad to make a search. Since both the counsel stated that it was a mere copy, and could be obtained from the Rehabilitation Department, the counsel for the plaintiff undertook to obtain a fresh copy and to place it on the file. It is apparent from the record that the Ahlmad obtained a fresh copy which was exhibited by the Court as Exh. P.
1.
12. The successive loss of the two documents (that is to say the original copy of Exh. P. 1, which was exhibited by the trial Court prior to the passing of the preliminary decree and the unexhibited copy relied upon by Muhammad Bakhsh, defendant-appellant before Mr. Jamshed Ahmed, Local Commissioner) and the certified copy placed by the Ahlmad on record in 1967 gave rise to certain complications. Muhammad Bakhah submitted some petition to the learned District Judge claiming that the copy obtained in 1967 and exhibited as P. 1 was a forged document. This application is not on this record, but it appears from the arguments addressed before me that instances of interpolations in the columns relating to the investment made and the profits earned, were alleged by Muhammad Bakhsh. According to him the original application for allotment of premises of the factory in the joint names of the parties contained an admission of the plaintiff that the entire investment was made by the defendant-appellant. Similarly it was alleged to be admitted in that application that the profits from the year 1948-1953 were nominal. He alleged that the original copy Exh. P. 1 proved this, while copy exhibited as P. 1 in 1968 with a view to reconstruct the record showed that the main investment was that of the plaintiff-respondent and that the firm had earned huge profits during the earlier years of partnership. It was further stated at the bar that to prove this contention Muhammad Bakhsh had relied upon a copy of the original Rehabilitation form which he himself had obtained from the Rehabilitation Department in the year 1955 and which proved the admission of the plaintiff-respondent about all the investment being that of the defendant and the amount of profits in the earlier year being very low.
13. The District Judge called a report from the learned Senior Civil Judge who submitted it on the 24th of July 1967. This report is reproduced below :- "In the case cited above, Sh. Jamshed Ahmed, Advocate was appointed Commissioner by my order dated 7-1-1967 with the direction to file his report by 4-3-1967. The said Local Commissioner had received the file from the Ahlmad against the receipt on 30-1-1967 and had returned the same along with his report on 20-2-1967.
' The next date of hearing in the case was 20-3-1967 when the learned counsel for the plaintiff had stated that a copy of Form No, Reh. VI was missing from the file. Is had accordingly orally directed the Ahmad to search for the same, but the parties counsel had stated that it was a mere copy and could be obtained from the Rehabilitation Department. The counsel had accordingly stated that they would obtain a fresh copy from the Rehabilitation Department and would place it on file, Now it is being contended that a change in Form No, Reh. VI has occurred. It is noteworthy that Muhammad Bakhsh defendant had personally inspected the file on 23-2-1967. I, however, feel that it was the duty of Muhammad Iqbal Ahmad to check the documents at the time when the file was received from the Local Commissioner. Similarly on inspection of the file by the parties he ought to have remained vigilant. It is difficult to give opinion as to whether the original copy has been misplaced by Muhammad Iqbal, Ahlmad, or it has. Been done away with by any one of the parties to the litigation.
' Report submitted :- ' The original complaint of Muhammad Bakhsh defendant along with the explanation of Mr. Muhammad Iqbal, Ahmad dated 18-7-1967 are enclosed."
14. The contents of the first part of the report are supported by the unrebutted averments made by Nizam Din in an application dated 17-7-1968 (page 169 of the file).
15. A case was registered against Nizam Din and his son Saeed Ahmad under sections 380/381, 467/468 and 420/409, P. P. C. Under the order of the learned District Judge. The accused were arrested in that case, but were released on bail after some time. Ultimately they were discharged in that case.
16. In view of the inconclusiveness of the report submitted by Mr. Jamshed Ahmad, another Local Commissioner, namely Mian Muhammad Asad, Advocate was appointed on the 14th of May 1968.
For about two months no evidence was recorded. On the 17th of July 1968 the plaintiff-respondent filed a petition for removal of Muhammad Asad and for reappointment of Sh. Jamshed Ahmad as Local Commissioner. It is unnecessary to refer the grounds of this petition which was supported by an a davit. However, notice was ordered to be issued for the 30th of July 1968. On the same date when the above order was passed, the Court by another order directed the Local Commissioner to submit his report by 14th of September 1961. The above complaint application was dismissed on the 30th of July 1%8 for non-deposit of process fee. On the same day it was restored on the protest of the plaintiff that he had not heard the call and that the process fee had already been deposited.
Notice was then issued for 14-9-1968. The proceedings before the Local Commissioner were not however stayed. The Local Commissioner submitted his report by the due date with the result that the complaint petition could not be disposed of.
17. The learned counsel for the plaintiff raised an objection on the 6th of August 1968 before the Local Commissioner against the continuance of proceedings and requested for their stay in view of the complaint filed in Court. The Local Commissioner continued the proceedings and recorded the evidence of the defendant. The learned counsel for the plaintiff therefore dissociated himself from the proceedings.
18. The defendant-appellant produced Shaukat Raza, Clerk of the Settlement Department and he also appeared as his own witness before the Local Commissioner. He proved from the file of the Rehabilitation Department pertaining to the allotment of the premises of Premier Safe Company, a photo stat copy of a certified copy of a document which according to him was in accord with a photostat copy on the Rehabilitation record, The Local Commissioner exhibited this document as Exh. D. W. 1/A. He further stated that the original document was in possession of the police.
Muhammad Bakhsh in his statement referred to Exh. P. 1 which was proved on behalf of the plaintiff in the pre-preliminary decree proceedings. According to him this Exh. P. 1 proved his investment to be a sum of Rs, 14,871-07-6-I-Rs, 4,300. This document was removed by Nizam Din through his son Saeed Abmad in collusion with the Ahlmad of the Court, because in addition to proving his investment, it also proved the profit earned by the firm from 1947 to 1953. Nizam Din also removed the original of that Exh. P. 1 from the file of the Settlement Department and substituted there a new document which proved the amount of profits for the same period to be about Rs, 3,00,000. The defendant submitted an application to the District Judge, at whose instance a criminal case was registered against Nizam Din, his son, the Ahlmad and the Settlement Clerk Bashir Hussain. Nizam Din in the meanwhile secured a copy of this forged document and placed it on the civil Court's file in collusion with Muhammad Iqbal. He stated further that he had in his possession a certified copy of Exh. P. 1 obtained by him in 1955 which he had proved before the Deputy Settlement Commissioner who had directed removal of the forged document and reconstructed the Rehabilitation file on the basis of the certified copy produced by him. Muhammad Bakhsh did not make a reference to Exh. D. W. 1/A which as stated above, was a photostat of a photostat copy of a certified copy and was proved by Shaukat Rasa, Rehabilitation Clerk from the file of the Rehabilitation Department. He, however, stated that according to the original Exh. P. 1 his investment was Rs, 19,171-07-6 while Nizam Din had never made any investment. The profit for 1953 was Rs, 10,356, out of which a sum of Rs, 4,478 had already been received by Nizam Din upto 1952 and only a sum of Rs, 1,400 as profit of 1953 remained with him in which the share of Nizam Din was only Rs, 700. He further stated that he started his business after 1953 with a sum of Rs, 6.100, but he could not improve the business on account of the litigation. He had thus earned Rs, 5,000 more. He proved certain other documents also for which no reference is necessary.
19. The Local Commissioner went into the question of genuineness of copy Exh. P. 1 on the Court record as well as Exh. D. W. 1/A produced before him. He found D. W. I/A to be a genuine document and believing the statement of Muhammad Bakhsh he found the plaintiff entitled to a sum of Rs, 3,493,07.
20. Nizam Din filed objections against this report. It was urged that the Local Commissioner had proceeded with the matter notwithstanding that he had been informed about the filing of the complaint application praying for cancellation of his appointment ; that on 6-8-1968 a date on which proceedings were fixed only for attendance of the parties, a direction was given to the parties to produce their evidence although previously the defendant alone was ordered to bring his evidence ; that the Commissioner proceeded to record ex parte evidence on 6-8-1968 that photo-stat copy of Form No, Reh. VI was wrongly relied upon by the Commissioner ; that the Commissioner had acted in collusion with the defendant, and had shown favour to him by finding a sum of Rs, 3,493.07 only as due, whereas he was in fact liable to pay Rs, 3,00,000 ; that true accounts were purposely withheld by the defendant and that even the record produced by the defendant's witness Shaukat Raza, Rehabilitation Clerk was not genuine.
21. The learned trial Court in his order dated 20-3-1970 found all the orders of the Commissioner to be proper. He also held that the Commissioner had rightly relied upon Exh. D. W. 1/A, but he did not elaborate this by discussion from the record. He held that no illegality or material irregularity going to the root of the matter and resulting in gross failure of Justice was brought out against the report.
Holding that the report was not liable to be set aside he rejected the objections and directed the case to be put up for preparation of the final decree. The same day he passed a final decree in terms of the Commissioner's report directing the defendant appellant to pay Rs, 3,473.07 to the plaintiff.
22. The plaintiff-respondent filed an appeal against this decree, which was allowed by Mr. Ghulam Ahmad, learned Additional District Judge on the 1st of December 1971. He took strong exception to the manner in which the application for removing the Local Commissioner was dealt with by the learned Court. He was also of the view that the Local Commissioner was under a moral obligation to stay proceedings and wait for the orders of the Court on that application. He criticized the order of the Local Commissioner closing the evidence of the plaintiff under Order XVII, rule 3, C. P. C. And held this rule to be inapplicable since no adjournment was sought on the earlier date by the plaintiff nor was the Commissioner acting as a Court. He also found that the Commissioner did not perform his duty since he should have asked Muhammad Bakhsh to produce the Account Books.
According to him the question of genuineness and authenticity of the documents was not within the jurisdiction of the Commissioner. He had overstepped the bounds of his jurisdiction by allowing the defendant to contradict the Court's record in so far as he permitted the production and proof of Exh. D. W. l/A. He did not approve the manner in which Exh. D. W. 1/A was relied upon by the Commissioner without any inquiry. In his statement Muhammad Bakhsh referred to an order of the Deputy Settlement Commissioner by which he had constructed the record of the Rehabilitation Department by keeping on it the copy of the allotment application of 1953 presented by Muhammad Bakhsh. The learned Additional District Judge took note of the fact that an appeal against that order was pending before the Additional Settlement Commissioner and the matter was not finally decided even in respect of that form. He also took exception to the admissibility of a photo-stat copy of a copy in view of 1970 SCMR 716 (this citation is not correct). According to him the Commissioner should have insisted upon primary evidence particularly when the defendant had not been able to explain why he could not tender in evidence before the trial Court the document Exh. D. W. 1/A. According to the learned Additional District Judge &h. P. 1 appears to be a genuine document since it had been produced at an earlier stage. One important factor, which had not been considered by the Local Commissioner and which went against the contention of Muhammad Bakhsh about there being nominal profits, was the false allegation of Muhammad Bakhsh about the embezzlements of more than Rs, 40,000 by Nizam Din. He observed That this allegation at best proved that the financial position of the firm in 1950 was very strong and the big amount said to have been embezzled, gave an idea of its profits and income. If the firm started at the most with Rs, 19,000 each and odd in 1948, it was able to function with such a success that sum a of Rs, 40,000 of its money could allegedly be misappropriated. He also did not believe the contention that Nizam Din had not invested any amount. He relied upon PLD 1958 Lah. 451 and PLD 1971 Kar. 649 for the proposition that a Court cannot delegate its power to a-Commissioner to determine issues for taking evidence. He further found that the Commissioner had no jurisdiction to pick and choose certain documents and discard the others according to his whims. The learned Additional District Judge held that Shaukat Raza ought not to have been believed since he had assumed a partisan role and appeared to have been instrumental in the tampering of the Rehabilitation record. He also observed that there was a possibility of the Commissioner entertaining bias against Nizam Din on his show of lack of confidence against him and for this reason he had acted with undue haste.
23. An objection was taken before the learned Additional District Judge that the appeal was barred by time. The learned Additional District Judge held that Nizam Din had tiled application for copy of the decree dated 20th of March 1970 on the 21st of March 1970. The Copying Agency gave him 8.4- 1970 as the date for supply of the copy. The copy was not ready on that date. No further date was given to him. He was only verbally asked by the Copying Agency to approach after a few days. The copy was prepared on 16.4-1970 and was collected by him on the 20th of April 1970. It was, therefore, held that since he bad not been given a date for preparation of the copy after the 8th of April 1970, the time spent in obtaining the copy would be the time from the date of application of the copy to the date of its delivery to the plaintiff and not date of its preparation. He relied upon PLD 1971 Kar. 649 and PLD 1968 Lah. 1205 for this finding. In the alternative he held that this was a case where there was sufficient cause for condonation of the delay.
24. The first point urged by the learned counsel for the appellant is that the appeal of the respondent ought to have been dismissed by the learned Additional District Judge as barred by time. Before dealing with this point I may refer to para. 20 of the grounds of appeal in which it was alleged that the present appellant "had examined in the lower appellate Court, a copyist of the Copying Branch whose statement was duly recorded by the lower appellate Court, but the same had not been made a part of the file for reasons not known to the appellant. This statement of the Copyist clearly proved the appeal to be barred by time. The statement of the Copyist appears to have been clandestinely removed from the file of the case to benefit Nizam Din respondent and this matter has been reported to the Chief Justice of the Lahore High Court". The appellant also swore an affidavit on the 27th of March 1972 in support of this allegation ride its para.
13. In this affidavit some other allegations were also evened against the learned Additional District Judge. A petition C. M. 2701-C/1973 was filed by the appellant on 13-7-1973 reiterating the same allegations. He also stated in it that he had submitted a duly stamped application to the learned Additional District Judge about the loss of the document who had promised to trace it out tut the document was not traced out or placed on record. Along with the petition was filed inter alia an application submitted by the appellant to the Chief Justice for transferring Mr. Ghulam Ahmad as a preliminary measure to conduct a fair and impartial inquiry on this question. This petition was also supported by an affidavit. I called for a report of the District Judge, Gujranwala on the 10th of October 1973. The learned District Judge secured a report from Mr. Ghulam Ahmed, Additional District Judge, who had by then been transferred from Gujranwala. He denied that any statement of any official of the Copying Agency was recorded by him. He further stated that the appellant had launched a campaign of villification against him while he was at Gujranwala. He had publicly declared that he had made at least six applications against him (the learned Additional District Judge) under different names to different quarters including the Honourable Judges of the High Court.
25. After going through the record and the report, I found this allegation and the affidavit given in support of it to be false and dismissed the C. M. 2701-C/1973. I also issued notice under sections 195 and 476 Cr. P. C. To the appellant to show cause why be should not be prosecuted under section 193 of the Pakistan Penal Code. While deciding this petition I noticed that the appellant had filed written arguments in the Court of the learned Additional District Judge. I found that although he had dealt with the objection about the limitation, but in the written arguments there was no reference to any statement of the Copying Agent.
26. The learned counsel for the appellant argued that though there is a finding that no statement was recorded, but even if it is so, the learned Additional District Judge should at least have made some observations on the record about the query from the said official of the Copying Agency and the reply given by him.
27. As already stated the final decree was passed on the 20th of March 1970. The application for copy of decree was submitted on the 21st of March 1970. Copy was ready on the 16th of April 1970, but it was delivered on the 20th of April 1970. The appeal was filed on the 18th of May 1970. If the time spent in obtaining the copies is computed from the date of application for that copy to the date of delivery of the copy, the appellant would be entitled to 60 days period Le. 30 days for the appeal and 30 days about the time spent in obtaining the copy. The appeal could-thus be filed up to the 19th of May 1970 and would be considered to have been filed within time. If on the other hand the time spent in obtaining the copy be treated as starting from 21st of March 1970 and culminating on the 16th of April 1970 when the copy was prepared, the appellant would be entitled to a period of 55 days only. The appeal, therefore, ought to have been filed up to the 15th May 1970 and would be barred by 3 days. The only point, therefore, is whether the appellant is entitled to this period of 4 days which expired between the preparation of the copy and its delivery to him.
28. The case of the said respondent in this connection is that though initially he had been given 8th of April 1970 as the date for the preparation of the copy, but thereafter no actual date was given to him. He filed an appeal on which the office reported that it was barred by time. Nizam Din requested for return of the appeal to enable him to apply for condonation of the delay. He then filed on the same date an application under section 5 of the Limitation Act, in which he specifically alleged that no date after 8th of April 1970 was fixed by the Copying Agency for the delivery of the copy. On that date he was informed that the copy had not been prepared by then. He, therefore, handed over the receipt of the application to the clerk of the counsel who received it on the 20th of April 1970. He alleged that the appeal in these circumstances was within time in view of Madan Singh v. Puran Singh (1), Gul Muhammad v. Allah Ditta (2) and Muhammad Afzal Khan Lodhi v.
Islamic Republic of Pakistan (3). Alternatively he prayed for the condonation of the delay. In support of this application an affidavit was submitted by Nizam Din. The present appellant applied for summoning the register of the Copying Agency. He took an objection that the appeal was barred by dine, but he did not controvert the allegation in the application under section 5 of the Limitation Act that no date of preparation of the copy was given after the 8th of April 1970 by the Copying Agency to Nizam Din. On the other hand he only alleged that after the copy was prepared, notice of its preparation was listed on the notice board for several days. He applied for summoning the application of Mum Din for supply of copies, the register of the Copyist and the notice Inter olio dated 16-4-1970 to 20-4-1970. The contention of Nizam Din then that he was not given any date after 8-4-1970 or supply of copy, remains un-rebutted and is established.
29. The only question, therefore, is whether in these circumstances when no date for preparation of the copy after 8th of April 1970 was fixed by the Copying Agency and no personal notice was sent to Nizam Din intimating him about this preparation, though some notices were pasted on the Notice Board, this period of 4 days he computed as the period spent in obtaining copies under section 12 of the Limitation Act. In Gul Muhammad v. Allah Dina expression "time requisite for obtaining copy" in section 12 of the Limitation Act was interpreted as "time which is taken between the date of application and the date when the copies are ready, but it can be further extended if further delay takes place by reason of the carelessness of the o ci ce in giving wrong information to the applicant as to the date on which copies would be ready, or in giving no information at all". The learned Judges did not agree with the argument that the Copying Department is the Agent of the applicant and consequently any delay on its part should be treated as a delay by the applicant. It was held that the Copying Department is an official agency charged with the duty of making and delivering copies. In support of this reliance was placed upon Labu Ram v. Bansi Dhar (4) and Kishore Chand v. Bashir (5). In view of this it was considered futile to refer to the provisions of section 5 of the Limitation Act. In Muhammad Afzal Lodhi v. Islamic Republic of Pakistan it was held that where no intimation has been given by the Copying Agency as to when copy might be ready, the date of actual delivery of copy and not its preparation should be reckoned to determine requisite time.
30. It is clear from these authorities that it is the duty of the office t intimate to the applicant about the date on which the copy would prepared. If such date is not given to the applicant about preparation, the applicant would be entitled to compute under section 12 of the Limitation Act, time spent up to the date of delivery of the copy. I am of the view, that the posting of the notices on the notice board about such preparation would be of no avail since that cannot be deemed to be an intimation to the applicant. This intimation should be sent to him personally. Rule 7.22, Chapter 'C', Volume I of the High Court Rules and Orders also provides that a date in writing must be given to the applicant.
(1) AIR 1926 Lah. 84
(2) PLD 1960 Lah. 443
(3) PLD 1968 Lab. 1205
(4) AIR 1936 Lah. 120
(5) AIR 1936 Lab. 771 ' In these circumstances it was not necessary for the learned Additional District Judge either to record the statement of the official of the Copying Agency or to take notice about questions put to him and answers given by him. I am, therefore, of the view that the learned Additional District Judge has rightly held the appeal to have been filed within time. Even if there had been some substance in the arguments of the learned counsel about the appeal being barred by time, there would be sufficient ground in the circumstances of the case for condonation of the delay under section 5 of the Limitation Act. The point raised by the learned counsel for the appellant is without any merit.
31. The learned counsel took exception to the observation of the learned Additional Judge about the moral duty of the Local Commissioner to await the disposal of the petition for cancellation of his appointment. In my view the observation of the learned Additional District Judge taking exception to the procedure adopted by the learned trial Court is amply justified. Before the evidence was started by the Local Commissioner, the application for cancellation of appointment had been submitted on the 17th of July 1968 by Nizam Din. It is strange that on the one hand the learned trial Court issued a notice on the application for the 30th of July 1968 and on the other hand directed the Local Commissioner to submit his report by the 14th of September 1968. He should either have dismissed the application straightaway if he found no prima facie case in favour of Nizam Din or should have stayed the proceedings before the Local Commissioner. On the 30th of August 1970 he dismissed the application for failure of Nizam Din to deposit process fee and for his absence. This proves that no notice of this application was sent to the Local Commissioner or the appellant. He, however, restored it on being informed that Nizam Din had not heard the call and the process fee was already on the record. Even then he did not issue a stay order and adjourned the application to the same date for which the Local Commissioner was directed to submit the report. By the 14th of September 1968, the report had been received. It was then that the learned trial Court appears to leave become cognizant of the fact that no stay order had been issued. The criticism of the learned trial Court by the learned Additional District Judge was, therefore, unexceptionable. Similarly there is force in the observations against the Local Commissioner who proceeded with the undue haste to record ex parte evidence, despite information about the complaint application submitted against him. The way in which he has submitted his report proves that either he was biased against the respondent or was not competent enough to deal with this case.
32. The learned counsel conceded that provisions of Order XVII, rule 3 were not attracted to the facts of this case and the Local Commissioner could not close the evidence of Nizam Din under this provision. If it is so, the observation of the learned Additional District Judge about the moral duty of the Local Commissioner not to make haste in these circumstances, cannot be considered to be unreasonable. Even if it is assumed that this observation was uncalled for, that would not change the position since the Local Commissioner has not taken into consideration in his report a number of circumstances which have been pointed out by the Local Additional District Judge. It was his duty to draw a presumption against Muhammad Bakhsh in failing to produce the accounts of business which must be in his possession. The Local Commissioner relied upon the amount of profits shown in Exh. D. W. 1/A. If this amount of profits was correct according to the record, Muhammad Bakhsh ought to have produced it. In these circumstances a presumption ought to have been drawn against Muhammad Bakhsh that if such record had been produced, it would have gone against his contentions about the amount of profits.
33. Even if it is taken for granted that Nizam Din had removed the record upto 1950, Muhammad Bakhsh was bound to produce the record of business done by him alone from 1959 onwards. Even this record was not produced by him. The presumption under section 114 ought to have been drawn by the Local Commissioner at least regarding this period.
34. It appears clear that the Local Commissioner or the learned trial Court did not see the record of the suit which would justify the inference that Muhammad Bakhsh had all the documents with him and had been doing flourishing business. In February, 1955 a Local Commissioner was appointed to prepare an inventory of business correspondence, books of account, cheque books, goods, machinery and cash in the premises of the firm and to take into custody account books, correspondence and cheque book. He submitted his report on 8 2-1955 in which he stated that when he reached the Premier Safe Company on 3-10 p.m., he did not find the defendant present.
He, however, was brought later. The Local Commissioner showed the order of his appointment on which the defendant directed one Muhammad Jamil to show to him whatever was required to be seen. When the defendant entered the office he had a bundle of notes of Rs, 10 denomination total of which may be about Rs, 15,000. The Local Commissioner asked him to let him count the notes, but the defendant refused. The defendant then left promising to return within a few minutes.
35. The Local Commissioner started preparing the inventory of the goods lying in the premises, files, Account Books, and correspondence. He asked Muhammad Jamil to unlock the Almirah fitted in the wall which was locked. He refused to do so and did not even give the key to the Local Commissioner. Similarly there were documents locked in a safe. Its key was also not given by Muhammad Jamil nor did he open the safe. At this stage Muhammad Bakhsh, defendant came in and asked him to show the order which was again shown to him, but he pleaded that the order was not in his name and he would not allow the Commission to be executed. He asked the Local Commissioner to get out. He also took into possession forcibly the files, Account Books and correspondence which had been taken in his custody by the Local Commissioner. He further stated that he did not care for any order of the Court.
' On the date of submission of this report, an application was submitted by the respondent for taking legal action against the appellant on account of his interference with the business of the Commissioner. In his reply dated 9-2-1955 the appellant challenged the legality of the appointment of the Local Commissioner. He pleaded that it did not amount to disobedience not to allow the Local Commissioner to prepare the inventory of the goods or take into custody anything from the premises in dispute since the Local Commissioner did not have in his possession any order allowing him to take into possession or to prepare the inventory of the goods, belonging to the appellant. In para. 7 it was stated that the Local Commissioner wanted to prepare a list and take into custody those goods which did not concern the disputed business since the present business was the defendant's sole proprietorship, the partnership having ceased to exist since 1950 after the misappropriation of considerable amount by the respondent. He did not deny that Muhammad Jamil refused to open the Almirah, but he only took exception to the report in which the Local Commissioner had referred to the contents locked therein. Similarly he did not deny that he had cash in his hand. He only stated that such a big amount as reported by the Commissioner, could not be in the hand of the appellant, since he had only one hand nor could it be expected from him that he would be roaming on the street with such a big amount.
36. Again in his reply to the application under Order XL, rule 1, C. P. C. Which was submitted by him on 6-2-1955 the appellant averred in para. 10 that he would suffer irreparable loss and injury in his business, if his Books of Accounts etc. Are taken into possession. He admitted in para. 8 that he had accounts with him but they were not regular. In para. 2 he stated that after the dissolution of the partnership in 1950 he had deposited the necessary cash security in the treasury in his personal capacity and had been paying income-tax and shop tax etc.
37. From this almost un-rebutted report of the Local Commissioner it is established that the appellant had Account Books and considerable cash with him. Some of the Account Books had been taken into possession by the Local Commissioner which were snatched away later on by the appellant. There was an Almirah and a safe which the Local Commissioner was not allowed to see.
Normally an Almirah in business premises contains correspondence or Account Books. Similarly very important documents and Cash are kept in a safe. The only explanation for misconduct furnished by the appellant was that the order did not pertain to his personal business, but this is not correct since it was later held that this business was a joint business of the appellant. It is, therefore, clear that the appellant who was surprised by the Commissioner even went to the extent of disobeying the authority and order of the Court in order to remove the Account Books, cash and correspondence. Later on a receiver was appointed on the 18th of March, 1955 and that order was maintained up to the High Court which dismissed the appellants' S. A.
0. No,19/1956 on the 30th of October, 1956. Any inventory prepared or goods and machinery taken into possession by the receiver later on is not a guarantee of the correctness of that inventory since the appellant had ample time to remove those Account Books and cash which were likely to go against him in the litigation.
37-A. The other obvious point which has been ignored by the Local Commissioner was the allegation about the misappropriation of more than Rs, 40,000 from the income of the firm by Nisam Din. The story of misappropriation has been disbelieved not only by the Criminal Court, but also by the learned trial Court. In these circumstances, when according to Muhammad Bakhsh, the amount invested in this business was only Rs, 19,000 and odd and cut of the income of the business a sum of Rs, 40,000 had been misappropriated, the obvious inference would be that the firm had made a large amount of profits upto 1950, and this profit could not be less than Rs, 20,000. This was sufficient to condemn &h. D. W. 1/A as a false document.
38. Faced with this situation the learned counsel for Muhammad Bakhsh argued that it was never his case that a sum of Rs, 40,000 was misappropriated from the money belonging to the firm. It was in fact the appellant's own money. I have already reproduced all the tints. It is clear that from the very beginning the appellant's case was that the sum of Rs, 40,000 was the money belonging to the firm. There is not an iota of evidence or even suggestion in support of this argument.
39. The learned counsel criticized that part of the judgment which pertained to the power of the Local Commissioner to record evidence and to determine issues. I agree with the learned counsel that there was a permission in this case to the Local Commissioner to record evidence and this permission was sustained by the High Court in Civil Revision No, 63/1965 which was filed by Muhammad Bakhsh and dismissed on 18-2-1965. Muhammad Bakhsh was aggrieved against the order of the learned trial Court directing him to produce evidence and accounts and clarifying that Nizam Din was required only to produce evidence in rebuttal. It was held by Anwar-ul-Haq, J. (as his Lordship then was) that this direction was justifiable under the provisions of Order XXVI, rule 16, C. P. C.
40. But the learned Additional District Judge has not criticised the role of the Local Commissioner in recording the evidence. The criticism is about the determination of the issues by him or the delegation by the Court of its powers of determining issues to him. He also held that the Local Commissioner had no power to give a finding on the genuineness of the document &h. P.
1. In this connection he relied upon two authorities. One is of the High Court of West Pakistan and the other of the High Court of Baluchistan & Sind.
41. Now this is established law that section 75 as well as Order XXVI, do not allow delegation of powers by the Court to the Local Commissioner t decide material issues. His report cannot be considered to be a finding. It is only the proceedings of an inquiry for the information of the Court after which the Court is bound to give its own finding on each and eve issue. It is only an evidence under Order XXVI, rule 12 and not a decision. Tincowri Debt v. Suttya Doyal Banerji and another (1), Sawan Mal v. Raunaq Mal (2), Firm of Seth Vishindas Nihalchana v. Nazarali Samj (3), Assarmal and another v. Hundomal and another (4), Bharat Chandra Chakrabarty v. Kiran Chandra Bai (5), Tulsi Ram v. Dina Nath and others (6), Bholanath Roy v. Bata Krishna Roy and others (7). Nalini Kumar Chakrabarty v. Gadadhar Chaudhry and others (8), Ugra Narain Choudhary and others v. Liar bans Choudhary and others (9), Dargahan Bibi v. Jyott Prasad Singh Der. (10), Ram Krishna Dalmla and others v. Chand (11). In Ram Krishna Muraji v. Rattan Chand (12), the following points were referred for report by the High Court to a Local Commissioner t- "Whether the old firm of Hardeo Das Kalyan Mal carried on business relating to sugar, silver, gold or cotton on its own behalf or whether it was confined to commission agencies ?
(2) Whether the new firm carried on any commission agency business or not ?
(3) Whether the latter business was of a gambling nature ?
This procedure was disapproved by the Privy Council since the matter could be referred for report to the trial Court. The Dacca High Court in Province of East Pakistan v. Upendra Narayana Lala (13) held that where the matter {{TABLE}}
(t) 6 Cal. L J 105
(3) AIR 1924 Sind 9 (5) AIR 1925 Cal. 1069 (7) AIR 1927 Pat. 135 (9) AIR 1930 Pat. 557 (11) AIR 1960 Punj. 430
(13) (2) AIR 1922 Lah. 47
(4) AIR 1925 Sind 265 (6) AIR 1926 Lab. 145 (8) AIR 1929 Cal. 418 (10) AIR 1934 Pat. 35 (12) AIR 1931 P C 613 1970 D L C 817 {{TABLE}} ' could be decided by direct evidence, the power to record such evidence could not be delegated to the Local Commissioner.
43. The learned counsel for the appellant did not contest the accuracy of this proposition.
44. The order of the learned trial Court was liable to be set aside since the learned trial Court did not consider the evidence on the basis of which the Commissioner had acted. Looked in that light, the judgment of the learned Court is not a speaking judgment at all. On the other hand it appears that the Court was of the opinion that the report of the Local Commissioner amounted to a finding which could be interfered with only if it smacked of partiality or suffered from material irregularity going to the root of the matter resulting in gross miscarriage of justice. This assumption on the part of the learned trial Court is contrary to the law. The Court clearly treated the Local Commissioner as a Court competent to decide the matter finally. It assumed its own role to be that of a Revisional Court which could set aside the Local Commissioner's finding on grounds of (1) irregularity going to the root of the matter and (2) partiality. The Court ought to have treated the report as a report only and not a finding and should have considered the evidence itself and given a finding thereon. This illegality was by itself sufficient for setting aside the final decree.
45. There is also considerable weight in the findings of the learned Additional District Judge that the Local Commissioner had no right to take into consideration or to admit in evidence Exh. D. W. 1/A on which he had relied. This document is at the most a photostat copy of a certified copy and not a certified copy. According to Shaukat Raza D. W. I even the copy on the record of the Settlement file of which Exh. D. W. 1/A is a photostat was not a certified copy. It was also a photostat copy of the certified copy stated to be in possession of the police. No effort was made to prove the original copy. Even if it is assumed that the original application for allotment was missing for which there appears to be no warrant on this record, the Local Commissioner could allow the production and proof to the certified copy and not its photostat of another photostat of the certified copy.
46. The contents of documents may be proved either by primary or by secondary evidence (section 61 of the Evidence Act) Section 62 of the Evidence Act defines primary evidence as the document itself produced for the inspection of the Court. It explains that where a document is executed in several parts, each part is a primary evidence of the document ; where it is executed in counter parts, each counter-part being executed by one or some of the parties only, each counter- part is primary evidence as against the parties executing it ; and where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest, but where the are all copies of a common original, they are not primary evidence of the contents of the original. Secondary evidence is interpreted in section 63 as meaning and including-
(1) certified copies given under the provisions hereinafter contained ;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with the original ;
(3) copies made from or compared with the original ; (4)counterparts of documents as against the parties who did not execute them ; (5)oral accounts of the contents of a document given by some person who has himself seen it.
' Section 64 then provides that all documents must be proved by primary .Evidence except in the cases thereinafter mentioned.
' Section 65 deals with cases in which secondary evidence relating to one of the conditions which is relevant in this document may be given. The relevant clause is clause (f) of this section which allows secondary evidence to be produced when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in Pakistan to be given in evidence. It is further provided that in case falling within clause ( f ), "certified copy of the document, but no other kind of secondary evidence, Is admissible." Section 74 is the next important section. It defines "public documents." Section 76 allows certified copies of such documents to be given to the applicant. Then comes section 77 which provides that such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
47. It is not denied that the application for allotment on the record of the Settlement Department was a public document and its contents could be proved by the certified copy thereof. Section 65 makes it clear that where the original document of which a certified copy is permitted by Inter alia the Evidence Act, no other kind of secondary evidence is admissible. The appellant's case is that he had obtained a certified copy of the allotment application (which was submitted by the Parties in 1953 to the Settlement Department), somewhere in the year 1955, and his whole case about interpolation into the original of what is now Exh. P. 1 depends upon this assertion. This point could be proved by him only by the production of the certified copy relied upon by him and not by a photostat of it or of a photostat of a photograph of that certified copy. The photostat copy Exh. D.
W. 1/A is not even secondary evidence and is, therefore, ins admissible. This point was not at all considered by the learned trial Court.
48. The learned Additional District Judge was further correct in holding that even if the learned Local Commissioner had the right to record evidence, he could not have allowed the appellant to file the document which contradicted Exh. P. 1 and which had been exhibited by the Court. In any case he had no authority to determine the question of genuineness of either document. Rahmat Ullah & Sons v. Sh. Hafiz Ullah (1) and Mirz Riazul Hassan v. Hafiz Mirza Hafizul Hasan (2) do support the finding the learned Additional District Judge. Moreover the question of believe the evidence or rejecting it is within the sole jurisdiction of the Court.
49. The learned counsel for the appellant argued that the learned Additional District Judge has incorrectly assumed that Exh. P. 1 is the same document which was originally filed by the respondent and exhibited by the learned trial Court in preliminary decree proceedings. He argued that in fact that document was brought on record by the Ahlmad of the Court after the original Exh.
P. 1 was found missing.
(1) PLD 1958 Lab. 451
50. This objection is correct. Exh. P. 1 on the present record is not the original copy which was marked as Exh. P. 1 in preliminary decree proceedings. It was obtained from the Settlement Department by the Ahlmad of the Court and was placed on the record in 1967 after it was found that the copy originally filed as Exh. P. 1 was missing. But this by itself would not make any difference. The learned Additional District Judge has merely remanded the case for a fresh decision. It will still be open to the learned trial Court to give a finding on the genuineness of Exh. P.
1.
51. There, however, appears to be substance in the argument of the learned counsel for the respondent, that Exh. P. 1 has been held to be a non-genuine document without consideration of all circumstances on the record. Firstly if Exh. D. W. 1/A is excluded from consideration as being inadmissible in evidence, no evidence remains in the field in support of Exh. P. 1 being a fabrication or a forgery. Secondly it was contended by the learned counsel for the respondent and was conceded by the learned counsel for the appellant that the order of the Deputy Settlement Commissioner by which he directed the photostat copy of original application dated 29-12-1953 for allotment of the premises of Premier Safe Company, to be treated as copy of the original application, was set aside in appeal and the case was remanded to the Deputy Settlement Commissioner for fresh decision. In these circumstances no reliance can be placed upon the said order of the Deputy Settlement Commissioner. There are, however, circumstances on the record of this case to show that the Court may find it unjust to rely even upon the certified copy which is alleged to have been obtained by Muhammad Bakhsh in the year 1955. It is clear from the record that Muhammad Bakhsh did not make this allegation at any time prior to his complaint before the District Judge on which criminal prosecution was launched against the respondent and his son.
Exh. P. 1 as originally exhibited by the Court before passing of preliminary decree was missing at the time when Mr. Jamshed recorded the evidence of Muhammad Bakhsh. It is clear from his report that the document seen by him was unexhibited. According to the appellant's own statement before Mr. Muhammad Asad, the document produced at the initial stages of the suit by the respondents had been exhibited as P.
1. Clearly therefore the document which was relied upon by Muhammad Bakhsh in his statement before Mr. Muhammad Jamshed was not Exh. P. 1 as exhibited by the trial Court. It was some other document which was smuggled into that record and since this document supported the case of Muhammad Bakhsh, the indications are that it may have been smuggled by him. After this record was received in Court, Muhammad Bakhsh immediately inspected the file. The unexhibited document seen by Mr. Muhammad Jamshed also then disappeared from the file. The learned trial Court for this reason made a remark in the above-mentioned report dated 24-7-1967 submitted by him before the learned District Judge that the Ahlmad should have been vigilant at the time of taking into custody the record from the Local Commissioner as well as at the time of inspection of the same by either of the parties. It is not therefore a case in which only me original Exh. P. 1 is missing. There was yet another document which was relied upon by Muhammad Bakhsh in his statement before Mr. Muhammad Jamshed as Exh. P. 1 and which was found by him to be bearing no exhibit mark, has also mysteriously disappeared.
52. The case of the appellant was that the document was removed by Nizam Din who along with his son and others was prosecuted unsuccessfully for theft and forgery. There are a number of complaints and counter complaints by the parties in the lower appellate record. But at least one application of Muhammad Bakhsh may go to establish that Saeed Ahmad and the Ahlmad genuinely believed that the original Exh. P. 1 had been removed by Muhammad Bakhsh, appellant.
This application is dated 21st of October, 1971. In para. 5 of this application it was stated by him that when the fact about the loss of Exh. P. 1 was brought to the notice of the Court and the Court was informed that copy of the application could be secured from the Settlement Department, the learned Court directed such a copy to be obtained and produced before the Court. He proceeded to say, "it is worth mentioning that on the Sunday prior to the above date Muhammad Iqbal Ahlmad came to the house of the applicant in the company of Saeed Ahmad son of Nizam Din.
Saeed Ahmad stood at a distance from his house in the Bazar and Muhammad Iqbal called at my house on which my son came down. The respondent (i e. Muhammad Bakhsh) was not present at the house. An information to this effect was given by the boy (son of Muhammad Bakhsh) to Muhammad Iqbal, Ahlmad, on which Muhammad Iqbal, Ahlmad told the boy that he was an employee of the Court, and had to see the lifafa of your father. Please bring it here. The boy went up and mentioned this fact to his mother who replied ; that whatever papers are to be seen, may be taken from your father after his return. We have no lifafa. Muhammad Iqbal, Ahlmad, went back and Saeed Ahmad who was awaiting him accompanied him."
' This story as given by the appellant himself in his application may prove the genuine apprehension of the Ahlmad and Saeed Ahmad and consequently of Nizam Din that the original document Exh. P. 1 may be in the papers of the appellant.
53. The learned counsel for the respondent argued that the case of the appellant was that the respondent had removed the first two leaves of the original application for allotment and in the present Exh. P. 1 there is a change in those first two leaves (4 pages) ; but even the last page of Exh.
D. 1/A was different from the last page of Exb. P. 1 and this fact is sufficient to prove that Exh. D. 1/A is itself a forged document.
54. The leaned counsel for the respondent argued that only 4 pages comprising of first 2 leaves of the allotment application had been tampered I with and interpolations were made in Columns 13 and 21 of this application. In Exh. D. W. 1/A in its Column 13 the profit of the business is shown as follows :- {{TABLE}} 55.
1947 .
1948. . . Nil Nil 1949. . 2588 1950. . 2000 1951. . 1968 1952. . . . 2400 1953 . (up-to-date) . 1400 {{TABLE}} ' In column No, 21 was given investment. It reads as follows :-- "Muhammad Bakhsh has a Bank balance of Rs, 6.100. Bank certificate attached. Rs, 4,871-07-6 were invested by Muhammad Bakhsh in the first year of allotment, Rs, 4,200 invested for machinery for which permission was obtained from the Deputy Custodian in 1948. Photo attached." {{TABLE}} In Exhs. P. 1, Column 13 reads as follows :-- 1947 . . Nil 1948. . Rs, 7,552 1949. . . Rs, 43,307 1950. . Rs, 51,972 1951. . Rs, 61,725 1952. . . Rs, 56,417 1953 to-date . . . . . . Rs, 63,289 {{TABLE}} ' Column No, 21 of Exh. P. 1 reads as follows :- "Muhammad Bakhsh has a bank balance of Re. 6,100. Bank Certificate is attached. Rs, 6,800 were invested by Nizam Din and Rs, 3,300 by Muhammad Bakhsh in the first year of allotment. Further Rs, 4,300 were invested for the machinery by both the parties for which permission was obtained from the Deputy Custodian in 1948."
' The case of the appellant throughout has been that only these two columns had been forged. The last leaf bearing signature of parties was left untouched. A comparison of the 23rd column on the 5th page also proves some particulars to be different. In column 23 of Exh. D. W. 1/A the following documents are shown to have been filed with the original allotment application :-- 1 Covering letter, 1 Bank Certificate, 2 Certificate of abandoned property, 1 Clearance Certificate, 1 Registration Certificate, 1 Affidavit, 3 Photograph copies.
' In Exh. P. 1 the arrangement is as follows :- 1 Clearance Certificate, 1 Registration Certificate, 1 Affidavit, 3 Photographic copies, 1 Certificate of abandoned property, 1 Bank Certificate, 1 Covering letter.
' In D. W. 1/A the date of the application is given as follows t- "Gujranwala the 29th December, 53."
' In Exh. P. 1 the year is written as 1953 instead of "53".
15. The learned counsel for the appellant therefore argued that the appellant's contention that they had obtained a copy of the original document in 1955 is incorrect.
16. The only reply to this argument by the learned counsel for the appellant was that "these are minor discrepancies which can be attributed to the carelessness of the copying agency." I do not agree with this contention. On the other hand I find that there are other circumstances which may prove that Muhammad Bakhsh did not have any such copy as purports to have been obtained by him in 1955 in his possession. On the other hand there are circumstances under which Erb. P. 1, as it is on record, may be treated to be a correct copy of the original. I he first circumstance in support of this latter proposition is that in the plaint it was alleged that the plaintiff's investment in the beginning was Rs, 6,800, while the defendant's investment was Rs, 3,300. If the document Exh. P. 1 had run counter to it, the plaintiff would not have filed it in Court, particularly when there were a number of other documents which proved and were relied upon by the Courts to hold that the partnership between the parties, bad not been dissolved in 1950 as alleged by the appellant, but subsisted even later on. The other important circumstance is the leveling of a charge though proved false, of misappropriation of more than Rs, 40,000 against the respondent. The appellant has admitted that the firm though initially started with much less investment, was seized of at least this amount as cash in addition to the material manufactured by it and the machinery. This proves that much more profits than shown in Exh. D. W. 1/A were earned by the firm.
57. Exh. D. W. 1/A as stated above was filed before Mr. Muhammad Mad and the original of this document i,e, certified copy said to have been obtained in 19:5 was filed at about the same time before the police. Even if it is assumed that it was not necessary for the appellant to draw attention of the learned trial Court to the contents of Exb. P. 1 which as alleged by him favored him in proceedings before the passing of the preliminary decree, this Question cropped up at least before Mr. Abdul Harnid, Mr. Manj and dr. Jamshed. The appellant filed an application before Mr. Manj for summoning the record of Settlement Authorities. He wrote in one of his applications dated 22-11- 1966 that he had not been able to obtain copy of the application from the Settlement Department though he had submitted application No, 1021 on the 11th of November, 1966 (Copy of the application for allotment). If this copy had been with him, it would not be necessary for him to apply again for it. The easiest course would be to file copy which he alleged to have obtained in the year 1955, before the Local Commissioner.
58. Similarly although he relied upon unexhibited copy of this application tefore Mr. Jamsbed on the allegation that this was filed by the respondent, which fact was untrue since the document filed by the respondent had been exhibited as Exh. P. 1, he did not file this document (Exb. DW. 1/A) before him. In these circumstances there is substance in the argument of the learned counsel for the respondent that the alleged copy was never obtained by him in the year 1955 and this itself might be a forged document.
59. It is not necessary for me to give a definite finding on this question. I have pointed out certain circumstances which ought to be taken into consideration by the learned trial Court while giving a finding. However, I find that the order of the Additional District Judge was quite legal and just in the circumstances of this case. Moreover I am of the view that the matter has been delayed for the last 20 years because of the appointment of the Local Commissioner which was unnecessary in view of the insistence of the appellant that he had no backs of accounts and record with him. It will serve no useful purpose to appoint another Local Commissioner. This is a fit case in which the learned trial Court should itself record the evidence of the parties and decide the matter after taking into consideration the observations made by the learned Additional District Judge in his judgment as well as by this Court in the instant judgment.
60. My own feeling is that the appellant has been responsible for delaying this matter. He succeeded in this device because the Local Commissioners were never well advised to adopt the real procedure which was called for in the circumstances of this case. Even in this Court he has been making efforts to get the case adjourned on one pretext or the other. He first argued that in view of the leave granted to him by the Supreme Court of Pakistan in the matter of notice under sections 195, 476, Cr. P. C., the whole proceedings should be stayed. He urged that the question whether any statement of the official of the Copying Agency was recorded by the learned Additional District Judge may be relevant for decision of that appeal. I did not agree with this since their Lordships did not stay the proceedings of this appeal in a matter which was only collateral to the appeal. Further I have already held that in view of the appellant's own affidavit that the respondent was given intimation about the preparation of the copy of the decree appealed against, by affixation on the notice board, the recording of statement of the clerk of the Copying Agency would be of no relevance for the decision of the appeal before the Additional District Judge. He then came out with the plea that the proceedings may be postponed till the decision of the Settlement Authorities on the genuineness of documents Exh. P. 1 and D. W. 1/A. This matter was put off by me since I was of the view that it could not be decided without hearing detailed arguments. After hearing these arguments I find this unnecessary since the question can be decided on the present record by the trial Court. He then requested for adjournment for appointment of another counsel since Sh. Ataullah Qureshi had already withdrawn. He had secured similar adjournment on the same ground five months earlier. However, in the interest of justice I gave him one more opportunity. It appears to me that the appellant is trying to delay the matter as for as possible. The learned trial Court is, therefore, directed to finish this case within four months.
' The appeal is without merits and is dismissed with costs.