The judgment and decree dated 5-6-1994 of the learned Additional District Judge have been assailed in this revision petition which arises out of the following circumstances.
2. On 26-1-1992, the respondent filed a suit for recovery of Rs.11,000. His case in the plaint was that he was a building contractor. On 16-12-1985 an agreement was executed between the parties for construction of the house of the petitioner at the rate settled between the parties. It was averred that the plaintiff-respondent completed the construction of the house at a total cost of Rs.1,26,000 but was paid a sum of Rs.1,04,000 and out of the balance amount of Rs.22,000 the petitioner paid an amount of Rs.11,000 to the plaintiff respondent in December, 1990 and promised to pay the remaining amount of Rs.11,000 in December, 1991 but he ultimately declined.
3. The suit was contested by petitioner. Besides raising the objection that the suit was barred by time, the agreement was denied by the petitioner and it was averred that the house was completed in April, 1986 and the masons and labourers who had constructed the house had duly been paid their wages.
4. Necessary issues were framed and the suit was tried. The parties led evidence in support of their respective pleas. The learned trial Court found that the suit was within time. While answering Issue No.3, the learned trial Court found that the evidence produced by the plaintiff did not advance his case and further that the agreement dated 16-12-1985 had not been produced. Accordingly the suit was dismissed on 7-2-1994.
5. The plaintiff-respondent filed an appeal which was allowed by the learned District Judge vide judgment and decree dated 5-6-1994. The learned First Appellate Court relied on the photo copy of the agreement and believed the version of the plaintiff-respondent that the original agreement was with the petitioner. It was further observed that he had no reason to disbelieve the statements of P.Ws.1 to 5. It may be noted that their evidence was not discussed in the impugned judgment.
6. The learned counsel for the petitioner contends that the suit filed by the plaintiff-respondent was barred by time. Evidence of P.Ws.1 to 3 did not establish the case of the petitioner while P.W.4 was not a truthful witness as per his own showing and the solitary statement of plaintiff-respondent could not be relied upon to decree his claim. He was critical of judgment of the learned First Appellate Court inasmuch as that photocopy of the agreement was relied upon and it was assumed that the original was in possession of the petitioner.
7. On the other hand, the learned counsel for respondent submits that the matter stands concluded by a finding of fact. The evidence .Produced by the plaintiff-respondent was rightly believed. A photocopy could be treated as secondary evidence and since it was on record of the trial Court it was rightly looked into by the learned First Appellate Court.
8. The submissions made by the learned counsel for the parties have been considered. In fact not only the plaintiff-respondent was required to prove the agreement for construction of the house of the petitioner but had also to establish the amount, if any, outstanding against the petitioner. The assumption of the learned First Appellate Court that the agreement was in possession of the petitioner was not based on any evidence whatsoever. It was not even asserted by the plaintiff- respondent in his plaint or in his sworn statement as P.W.S. There is no explanation of non- production of the aforesaid agreement. Since existence of the agreement was denied, the original should have been placed on the record or at least permission to produce secondary evidence of the said agreement should have been obtained.
9. I have, however, examined the evidence produced by the plaintiff-respondent, Muhammad Sadiq, P.W.1, claimed to have written the agreement on 16-12-1985. According to him he made a fair copy of a draft on a stamped paper which was written on a plain paper. P.W.2, Ashfaq Hussain, Clerk of a Lawyer, claimed to have made the draft of the said agreement. In the absence of the agreement, their evidence could not have been considered. P.W.3, Muhammad Sharif stated that in 1985 the house of the petitioner was being .Constructed for which a contract was awarded to the respondent. According to him, he worked on the foundation for about one week. According to him there was a dispute in 1985 between the parties, and, thereafter, Abdul Latif Mistri had completed the work. Since this witness had worked only for one week on the house his evidence could not establish that the house was completed by the plaintiff-respondent because he himself admitted that he did not know the events after one week. Sh. Bashir Ahmed, P.W.4, stated that the respondent had constructed the house of the petitioner for which an amount of Rs.22,000 was outstanding. He, alongwith the plaintiff, went to the office of the petitioner at Millat Tractor in the year 1991, in 1992 the petitioner paid an amount of Rs.11,000 and promised to pay the B balance i.e. Rs.11,000 next year.
This witness was apparently lying because according to the plaint, a sum of Rs.11,000 was paid to the plaintiff-respondent in December, 1990. His testimony was clearly contradictory to the case set up in the plaint. Therefore, he could not be believed. The learned First Appellate Court did not even notice his statement in the impugned judgment. The only other witness was the plaintiff himself.
The petitioner appeared in the witness-box as D.W.1 and denied the agreement or that he had to pay an amount of Rs.11,000 to the respondent. Therefore, it was a case of word against word and the onus being on the plaintiff he must fail. It may also be observed that even if P.Ws.1 to 3 were believed to the extent of the existence of an agreement between the parties, the question as to whether any amount was outstanding against the petitioner was required to be proved by satisfactory evidence which, as noted above, was lacking in this case.
10. For what has been stated above, this revision petition is allowed, the impugned judgment and decree dated 5-6-1994 of the learned First Appellate Court are set aside with the result that the suit filed by the respondent stands dismissed. There is no order as to costs.