The brief facts in the instant Regular Second Appeal are that on 12-9-1994 the respondent/plaintiff filed a suit for the recovery of Rs.1,57,950 as price of salt mixture (heat treatment salt) and supplied the same to the appellant in February, 1993. The suit was contested by the appellant/defendant.
The written statement was filed on 13-12-1994 that the consignment was received at the factory gate subject to the condition that it should stand the test made by the Inspection Section of the defendant. On test it was found substandard and of poor quality and was thus rejected. The plaintiff was asked to take back the rejected goods but he failed to lift the same. Therefore, as per contract the appellant had the right to cancel the order and claimed Rs.25,000 as set of for misusing their space for storage of un-lifted goods.
2. On the divergent pleadings of the parties near about seven issues were framed. The oral as well as documentary evidence was produced and the suit was decreed vide judgment and decree dated 29-10-1996 by the learned Civil Judge for the whole amount with 8% interest from the date of filing of the suit till the date of realization of the decretal amount. On appeal by the appellant/defendant the same was heard and dismissed by the learned Additional District Judge vide judgment and decree dated 18-3-1997 with costs throughout. Now, against these judgments and decrees passed by the learned Courts below this regular second appeal has been filed.
3. The points raised by the learned counsel for the appellant are that both the learned lower Courts have acted illegally in the exercise of their jurisdiction and the impugned judgments and decrees are the outcome of material irregularity as the same are bad in law on account of misreading, non---reading and misconstruction of material on record and they have relied on photostat copy of the test report dated 27-2-1993 Mark-A and tendering of documents Exh.P.11 to Exh.P.13 pertaining to the alleged certificates of demand notice by the plaintiff have been wrongly considered by the learned lower Courts as proof of acceptance of goods and valid demand of its price by the plaintiff. Both the learned lower Courts have ignored the material fact which was admitted in evidence that the Inspection section of the defendant-Society inspects the goods supplied to the Society and in case the inspection report of that section is satisfactory only then payment is made to the supplier and that the witness, Ijaz Seerat was not posted in Inspection Section of the Society.
As P.W.1 had admitted that he was unaware of the Chemical Formula of the Heat Treatment Salt and the person who is unaware of the aforesaid formula, how could he be given responsibility for inspection of salt supplied by the plaintiff. Moreover, P.W.1 was dismissed as Exh. Employee of the society and at the time of his evidence he produced a photostat copy of the alleged report Mark-A drawn by him without explaining the same, how was he in possession of the said photostat copy of the alleged office record of the Society? This document while placing on record was under objection by the defendant's counsel and. It was marked by the learned lower Court subject to the decision after closing of the parties' evidence but to decision was later on made on this objection.
Therefore, the procedural omission vitiates the proceedings and such a document could not be relied as proof of the satisfactory test of the consignment. Even otherwise in the evidence the defendant while appearing in Court on 20-11-1995 had denied the alleged inspection report mark-A and stated that this document never formed part of record of the' defendant. Therefore, the document Mark-A was an unauthorized and inadmissible document and it was wrongly made the basis for the decision of the case as the statement of P.W.1 is false, concocted, inimical and rebutted by D.W.1. Further argued that the original record of the defendant-Society was summoned twice. During the course of evidence the photostat copies, certified in Court, were placed on record at the instance of the plaintiff. D.W.1 was cross-examined by referring to such report. The same should have been exhibited and later on referred to by the learned lower Courts while deciding the controversy. At the time of filing of the written statement the copies of these documents had been relied in the reliance list submitted by the defendant. The defendant was not brought at par with the plaintiff and the learned trial Court closed the evidence of the defendant and did not allow the defendant to produce even documentary/evidence which is material to resolve the controversy between the parties by way of permission to produce as additional evidence. The learned Courts below have failed to take notice that the defendant had a right to cancel the order without giving any particular reason and would not be liable for any claim or damages resulting thereof as he would not be forced to accept and pay for the consignment which was rejected because of poor quality and was not according to the specifications and despite written intimation the plaintiff failed to lift the goods. Even at the time of cross---examination of the plaintiff a question was put by the defendant's counsel whether the plaintiff was ready to replace the unused salt mixture supplied by him but he refused to accept the offer and this speaks the falsity of his claim and the learned Courts below have ignored this fact too at the time of the decision of the case. The D.W.1, whose duty was to test the chemicals, gave the contents of the required salt mixture and the contents of the mixture supplied by the plaintiff. Both the learned Courts below have erred in holding that he was not expert in carrying on such test. As compared to him the statement of P.W.1 who admitted that he did not know the contents of the salt mixture and he did not belong to Inspection Section and the learned lower Courts have erred in law and acted harshly in closing the evidence of the defendant, therefore, both the judgments passed by learned Courts below are liable to be set aside in the instant regular second appeal. Even the interest levied through this judgment is beyond the provision of law.
He further argued that Mark-A could not be exhibited as secondary evidence in order to bring forward the secondary evidence. The party has to prove the loss of the original document and to prove that the original document has been lost then the document can be exhibited. In this case neither the plaintiff proved that the original document has been lost nor that it is in possession of the adverse party then the secondary evidence could not be admissible in evidence.
4. The learned counsel for the respondent submitted that both the learned Courts below have given well-reasoned judgments after discussing all the evidence on record. The appellant is in second appeal and he has to prove the strong legal grounds to prove the maintainability of the second appeal. He relied on Abdul Majeed and others v. Khalil Ahmad PLD 1955 Federal Court 38 where it is held that the High Court has no jurisdiction to entertain a second appeal on the, ground of an erroneous finding of fact, however, gross and inexcusable the error may seem to be, unless there is an error in the procedure provided by law, which may possibly have produced an error or defect in the decision of the case on the merits. A fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error in coming to a finding as to that fact, and such error has never been held to be an error of law justifying interference in second appeal. Further relied on Fazal Rahman v. Amir Haider and another 1986 SCM R 1814 where it is held that the High Court will not interfere with an erroneous finding, however, gross and inexcusable the error may be except on strong legal grounds which can be held to tantamount to interference on a question of law. A concurrent finding of fact reached by lower Courts will not be disturbed by High Court in a second appeal even if it disagrees with that finding on its own view of evidence. Relied on Mumtaz and three others v. Mian Khan PLD 1973 Lahore 47 where it is held that beyond the scope of an appeal under section 100 of the C.P.C. To examine the evidence on facts so arrived at by the two lower Courts on a question of fact, howsoever erroneous it may be, cannot be interfered in the second appeal.
He further argued that both the learned Courts below have taken into consideration the pleadings of the parties. In paragraph, 4 of the plaint at page 2 of the original record it was averred by the plaintiff that the defendant used to make payments of the supplied material to the plaintiff after the deduction of 2.5 % income tax as per law for onward payment to the Government before the next supply and in para. 5 he further averred that in the month of February, 1993 the defendant- Society requested the plaintiff to supply 2700 Kgs. Of salt mixture. The supply was made by the plaintiff according to the following schedule:- On 4-2-1993 2000 Kgs.
On 10-2-1993700 Kgs.
And in paragraph 7 of the plaint the plaintiff averred that the total amount of supply was Rs.1,62,000 and the defendant-Society deposited Rs.4,050 as 2.5% income tax on account of Rs.1,62,000 in the name of the plaintiff on 8-3-1993 in the National Bank of Pakistan. In reply to paragraph 4 in the written statement it is submitted that the defendant is bound to deduct 2.5 % income tax on all payments against supply of their orders under the law. So this is not a special treatment given to the plaintiff and the reply to paragraph 7 it is averred by the defendant that reply to above paras.
Covers reply to this para. Exh.P.10 is the income tax deposited by the defendant on 8-3-1993.
Exh.P.10 is relied by both the learned Courts below. If the goods supplied to the appellant/defendant were not according to the specification and were poor why did they deposit the income tax and why did not they show the plaintiff for supply of poor quality material? He further argued that the stance taken by the learned counsel for the defendant that the photocopy of Mark-A could not be produced in evidence is totally falsified by the provisions of Articles 76 and 77 of the Qanun-i- Shahadat. The document Mark-A was exhibited as secondary evidence under the discretionary power of the learned Civil Court The secondary evidence of the contents of the documents shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, such notice to produce it as is prescribed by law; and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case. No notice under, this Article is prescribed upto this time.
5. The learned counsel for the appellant further submitted that the interim orders dated 22-1-1995, 12-2-1995, 26-3-1995, 9-4-1995, 13-4-1995, 28-6-1995, 17-7-1995, 28-6-1995, 3-9-1995, 27-9-1995, 5- 10-1995, 11-10-1995 and 20-11-1995 make it manifestly clear that the documents which the respondent requested to the Court to be produced through a Record-keeper were not produced in evidence including the original of the Mark-A. Although the Court used the maximum coercive measures to procure the attendance of the record-keeper and production of record as requested by the respondent by issuing warrants of arrest and attachment of salaries of the delinquent persons. As a consequence of the aforesaid coercive measures the Record-keeper appeared but the record was objected to be not relevant and his statement was recorded on oath: Therefore, the arguments advanced by the learned counsel for the appellant that Mark-A is wrongly put on record by the learned Courts below is not convincing. Reliance is placed on Surendra Krishna Roy and another v. Mirza Muhammad Syed and others AIR 1936 PC 15 where it is held that purpose of notice is to give party opportunity by producing original to secure best evidence of its contents. The Court has absolute power to dispense with a notice under these sections. Further relied on Mst. Taj Bibi v. Syed Ahmed Shah 1989 SCM R 1001 where it is held that the learned trial Court is competent to determine whether sufficient grounds have not been made out, for the admission of secondary evidence is a question properly to be decided by that Court and is to be treated as depending very much on its discretion----Trial Court's conclusion on that point not to be overruled by the Appellate Court except in a clear case of miscarriage of justice. Further relied on Syed Qamar Ahmad and another v. Anjum Zafar and another 1994 SCM R 65 where it is held that such matter was to be properly adjudicated upon by the trial Court being within its jurisdiction--- Exercise of such discretion unless found to be manifestly perverse and illegal, should not be interfered with by the Appellate Court. Mark-A was to be connected with the supply of the material by P.W.1 Ijaz Seerat who remained their employee. D.W.1 admitted that he is not the man from the Heat Treatment. The supply of goods is always sent by the Inspection Branch. The relevant person relating to Heat Treatment was not produced. Therefore, the judgments and decrees passed by both the learned Courts below cannot be interfered in the second appeal.
6. I have heard the learned counsel for the parties and have perused the oral as well documentary evidence.
7. Both the learned Courts below concurrently decided the material issues Nos. 1, 2, 4 and 6 against the defendant. While deciding the issues they have elaborately discussed the evidence present on the record. The perusal of the interim orders shows that the witnesses were summoned with the original record relating to Mark-A also but as it is reproduced above the record was shown to have been destroyed and was not produced in the Court, although the learned trial Court gave many adjournments and even used extreme coercive measures for the production of the record.
Therefore, I have seen no illegality committed by the learned trial Court while allowing Mark-A on the record which is proved by P.W.1 Ijaz Seerat being an author. Even in rebuttal the appellant/defendant has miserably failed to rebut that if the supply of goods was substandard and poor and not according to the specification and stood rejected, then why vide Exh.P.10 the income tax was deducted from the supply of goods and was deposited in the National Bank of Pakistan. They also failed to prove that they had categorically show-caused the plaintiff for supply of the substandard material and for rejection of goods for the same reason, rather they deducted the income tax from the supply of goods and deposited the same in the Bank which shows that the goods supplied to them were accepted initially by the defendant. Failure to produce the record in respect of the Heat Treatment for the supply of goods and the constant absence of the Record- keeper and the learned trial Court while using coercive measures to procure his attendance gives entirely a negative inference against the defendant that he deliberately hesitated to produce the relevant documents in the Court and when the witness, Muhammad Saeed Azhar appeared in the Court he stated that Mark-A dated 17-2-1993 was not part of the documents and he did not admit the same then he was bound to produce the concrete rebuttal that the document was fictitious and he could have produced the man from the Heat Treatment Shop who was qualified to give its opinion about the goods supplied being sub--standard and not according to the specification but he failed to do so. The same witness in his statement stated that he had no record of February, 1993 relating to Heat Treatment Shop and for production of salt mixture as he wasted the record after the expiry of two years. D.W.1 appeared and admitted that he was the one person who checked the disputed goods which were not according to the specification and the same were rejected. In cross-examination he admitted that there is an existence of Inspection Wing in their factory but he never worked in the Inspection Wing. He admitted that Ijaz Seerat an employee in the factory and he was the Incharge of the Heat Treatment Shop but he does not recognise his writing nor he can show anything about Mark-A nor he has any relationship with Mark-A. He admitted in cross- examination the correspondence in between the receipt office, raw material store and main store Heat Treatment Shop and all the record is existing in the factory and the record of rejection of the disputed goods is also present, even at this time and the record from the year 1993 till today is also present. Even the record prior to 1993 is present. He admitted that he does not remember that who was the incharge in the year 1993 about the Inspection Wing. He admitted in cross-examination that he did not check the firmity of the disputed goods. He also did not check the specific gravity of the salt mixture instrument and density and there is no entry in the, book produced by him. He admitted that Azhar Saeed is the Manager of the factory. He also admitted that Ijaz Seerat is employee in the Heat Treatment Shop of the factory. He showed his ignorance that at the time of payment the income tax is refunded. No documents (which later on the defendant wanted to produce in additional evidence and in their possession) were put to this witness and proved.
8. Therefore, keeping in view all the oral as well as documentary evidence on record no manifest illegality committed by the learned Courts below while deciding the issues concurrently; has been shown to this Court. The law as settled in PLD 1955 Federal Court 38 that fallacy in appraising the evidence as to a fact, unless it amounts to a material mistaken assumption, is merely an error and this Court has no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact. No interferences made in the judgments passed by the learned Courts below. However, as far as the interest of 8 % is concerned that is reduced to 6 % as provided by the law. The regular second appeal fails and is dismissed.
9. No order as to costs.