HAKIMULLAH Versus SAGHIRUDDIN

This is a suit for recovery of Rs. 67,750.00 or in the alternatively for a declaration that plaintiff is owner of Bus No. KAU 9065, for its possession and accounts. The plaintiff case is that he carries on business of bus body builder under the names and style of Hakimuliah Bros., and Hakimullah Bus Body Builder & Transporter; that he had several accounts including current account and a P. C. T. account at the Liaquatabad Branch of the National Bank of Pakistan, where the defendant No. 2 was at the relevant time its Manager; that sometime in April, 1966 the defendant No. 2 represented to the plaintiff that he wanted to obtain from the said Bank a loan of Rs. 50,000 in the name of defendant No. 1, his nephew and to do transport business there with and he desired that the plaintiff should give a loan of Rs. 5,000 to his said nephew for opening the necessary account and to purchase a bus with a loan of Rs. 50,000 to be obtained from the bank. The plaintiff being obliged to defendant No. 2, as he had been helpful to him in operation of his several accounts with the bank, agreed to this request and paid a sum of Rs. 5,000 to defendant No. 1. After sometime it was represented to the plaintiff, the plaint goes on to recite, that the said loan of Rs. 50,000 was granted to the defendant No. 1 and the amount credited in the account of the plaintiff and the plaintiff was requested to purchase a bus chassis. The plaintiff found that a sum of Rs. 5,000 had in fact been credited in his account on or about 18‑4‑1966 and believing it had been credited by defendant No. 1 purchased in good faith a Bed ford chasis for a bus for a sum of Rs. 45,250.00 from Eastern A automobiles Ltd. The plaintiff additionally paid brokerage of Re. 500. Thereafter the plaintiff at the further request of defendant No. 2 built a body on the said bus investing a sum of Rs. 14,000 got the bus registered in the name of defendant No. I, made it roadworthy and operated it; that towards miscellaneous expenses for registration, permit fee, insurance etc., the plaintiff incurred a further sum of Rs. 2 000 and thus the total amount spent by him on the said bus came to Rs. 61,750.00. The plaintiff plyed the bus and deposited the entire proceeds thereof in the account of defendant No. 1. The plaint goes on to state that the defendant No. 2 sub sequently took away the bus promising to pay the cost of body building later; that in spite of repeated demands the defendants failed to pay to the plaintiff the said amount of Rs. 14,000 or any other account but instead purported to transfer the bus in favour of defendant No. 3 who is described as benami for defendant No. 2. In the circumstances, the plaintiff became suspicious of the conduct of the defendants and on making enquiries came to know that he had been fraudulently led to believe that a sum of Rs. 50,000.00 had been credited in his account by the defendants and he had been deceitfully made to purchase the said bus from his own funds. Thereupon, the plaintiff informed the Excise & Taxation Authorities of his claim and requested them not to register the purported transfer. The plaintiff's case is that since the bus had been purchased, with his funds, in law it belongs to him and apart from its possession, he is entitled to account of the entire proceeds from the defendants and alternatively he is entitled to recover a sum of Rs 66,750. In the prayer clause, ho never, the first prayer is for a decree for this amount and alternatively for possession of the bus and accounts.

2. The case of defendants Nos. 1 and 2 is that the defendant No. 1 wanted to start transport business and the plaintiff who was well conversant with this trade represented to the defendants that in case vie defendant No. 1 could obtain a P. C. loan of Rs. 50,000 in his name from the bank the plaintiff would purchase a chasis of tie bus built its body and deliver the bus complete in all respects on road within that amount which would be very profitable to defendant No. 1; that the plaintiff further represented that in case the deal for the purchase of chassis and building of the bus body there on was struck through him he would provide the guarantee for the said loan and will also advance a sum of Rs 5 000.00 to defendant No. 1, to liquidate the overdraft amount then outstanding against defendant No. 1. The plaintiff accordingly paid Rs 5,000 to defendant No. 1 on 1R‑3‑1961 which was applied towards the liquidation of overdraft in his account of about Rs. 900.00. The written statement goes on to state that after the clearance of this overdraft. loan of Rs. 50,000 was sanctioned in favour of defendant No. 1 by the bank in early April, 1966 and on 12‑4‑1966 he defendant No. 1 paid this sum of Rs. f0,000 as agreed, to the plaintiff through cheque No. 176763 dated 12‑4‑1966 which was duly en-cashed by him under his own signature offer which he proceeded to purchase the bus chassis as agreed; that subsequently the defendant No. 1 was informed by the plaintiff that he had purchased the bus chassis for Rs. 45,000 and spent a further sum of Rs. 12,000 for building the body and the defendant was asked to pay a further sum of Rs. 12,000 towards the cyst the bus body and other incidental charges, the defendant No. 1 believing the plaintiff agreed to pay this sum of Rs. 12,000 after the bus started plying on the road and the P. C. loan of Rs. 50,000 was adjusted out of the income received from the bus, which was agreeable to the plaintiff. The written statement then goes on to state that as the defendant No. 1 was not well conversant with the conversant business and the plaintiff was on good terms with the defendants it was agreed that the plaintiff would run the bus under his own supervision and its daily income will be credited to the loan account of defendant No. I so that P. C. loan of the defendant No. 1 is adjusted; that under this arrangement the bus was kept on plying on the road from June 1966 up to March 1967 under the supervision of the plaintiff. However, in March, 1967 on checking the amount, the defendant No. 1 found that the plaintiff had not made any deposits in his loan account from 10‑10‑1966 to 31‑12‑1966, the plaintiff in reply referred to his financial difficulties and also stated that he had adjusted the amount of the income for the period, against Rs. 12.000 which the defendant No. 1 was to pay to the plaintiff. The defendants deny that the plaintiff spent a total sum of Rs. 61,750.00 towards cost of the bus. They further alleged that the plaintiff had himself represented to them that a sum of Rs. 12,000 only was to be paid to him by the defendant No. 1 towards the cost of the bus body and other incidental charges to ply the bus on the road. In these circumstances the bus was sold by defendant No. 1 and accounts between the parties settled on 12‑9‑1967 in writing duly executed by the parties. As regards the sale in favour of defendant No. 3 the defendants Nos. 1 and 2 state that the delivery of the bus was given to the purchaser by the plaintiff on 18‑3‑1966 and the sale price received, was first applied to wards the balance of the P. C. loan which was as agreed followed by the settlement of account between the parties on 12‑9‑1967. The defendants deny the allegation of fraud and misrepresentation and as regards the credit entry of Rs. 50,000 made on at about 18‑4‑1966 in the plaintiff's account they say that it was from one of his creditors, Zia Transport and it had nothing to do with payment made by the defendant No. 1 earlier on 12‑4‑1966 to plaintiff. The additional pleas on behalf of these defendants relate to the maintainability of the suit.

3. The case of defendant No. 3 is that he purchased the bus in question bona fide and for consideration of Rs. 45,000 on 18‑3‑1967 and its delivery was given to him by the defendant No. 1 in the presence of the plaintiff at the plaintiff's garage.

4. The plaintiff's oral evidence consists of the plaintiff himself. a clerk from the Excise & Taxation Authority who produced the file relating to the bus in dispute and a handwriting expert. to prove that the signature on the reverse of the bearer Cheque No 176763 dated 12‑4‑1966 for Rs. 50,000 vas not of the plaintiff. The three defendants have examined themselves. Defendants Nos. 1 and 2 have additionally examined the token clerk and the Assistant Cashier at the Liaquatahad Branch of the National Bank of Pakistan to prove that the plaintiff' had en-cashed the said cheque for Rs. 50,000 and a witness to the document excused between the parties on 12‑9‑1967, settling their accounts.

5. Issues in this case were framed by this Court and they read as follows:‑‑

"(1) Had the defendants Nos. 1 and 2 fraudulently represented to the plaintiff and made to believe him that they had deposited a sum of Rs. 50,000 in his name?

(2) Has the plaintiff purchased the chassis from his own funds in the name of defendant No. 1 ?

(3) Was the plaintiff under the undue influence of the defendant No. 2 due to the defendant being Manager of the Creditor Bank?

(4) Have the defendants Nos 1 and 2 not paid any amount to the plaintiff towards body building and other miscellaneous expenses incurred by the plaintiff ?

(5) Are the defendants holding the bus in trust for the plaintiff and are accountable to the plaintiff for the amounts received by them from plying the bus?

(6) Is the defendant No. 3 holding the bus as benami for the defendants Nos. 1 and 2? If yes, to what consequences?

(7) Whether the defendant No. 3 is a bona fide purchaser for value without notice? If so, what is the effect?

(8) Whether the suit is barred under Order II, rule 2, C. P. C.?

(9) Whether the suit is not maintainable for non‑payment of costs in Suit No. 1607/68?

(10) Is the plaintiff entitled to damages for deceit, negligence and wrongful conversion of the bus? If yes, to what amount?

(11) Is the plaintiff entitled to the possession of the bus?

(12) What should the decree be?

6. Issues Nos. 3, 6, 10 and l I were considered redundant and Issue No. 8 was not passed. Following two additional issues were framed :

(i) Whether the parties settled their accounts on 12‑9‑1967?

(ii) Whether the suit is barred by limitation?

7. Issue No. 9.‑This issue relates to the maintainability of the suit and may accordingly be dealt with first. The case of defendants Nos. I and 2 is that the plaintiff had earlier, in the year 1968, filed a suit against defendants Nos. 1 and 2 and one Abdul Aziz for a declaration and permanent injunction in the Court of IV Civil Judge, First Class. Karachi, in respect of the same cause of action which suit he withdrew with permission to re‑file it as it suffered from legal defects and that this request was allowed by the learned Civil Judge by his order dated 16‑4‑69 on condition, however, the plaintiff will pay the costs to the defendants before filing the fresh suit. Mr. Saeed-uz- zaman Siddiqui, the learned counsel for the defendants Nos. 1 and 2 contended that this order has not been complied with and no cost paid by the plaintiff to the defendants Nos. 1 and 2. In his deposition the plaintiff in reply to the question whether or not he had complied with this order expressed ignorance. During the course of arguments Mr. A. Rauf, his learned counsel invited my attention to an application made to this Court as far back as 23‑3‑1969 under section 148, C. P. C. praying for extension of time for payment of the aforesaid cost on the ground that he had no notice of the order made by the learned Civil Judge and having come to know of it from the written state ment filed by the defendants, he was enclosing therewith a demand draft of Rs. 51 in favour of defendants Nos. 1 and 2. This application remained on the file and no attempt was made by the plaintiff to see any orders thereon. Mr. A. Rauf, prayed that the application retrained in abeyance due to in advertence and this Court may now pass an order thereon. The question assumes some importance for the settled law is that if the permission to file another suit was made conditional on payment of cost then the plaintiff's right to bring a fresh suit is in serious jeopardy, for unless the condition imposed is complied with there is no proper suit before this Court. The plaintiff no doubt is at liberty at any time to comply with the term and pray for its condo nation and it is within the inherent power of this Court to condone bona fide delays omissions etc. Mr. Saeeduzzaman for the defendants however argued that the condo nation will not be retroactive in the sense that the condition will not be deemed to have been complied with when the application under section 148, C. P. C. was filed but on the date on which the delay is condoned, and if in the meanwhile the period of limitation for the filing of the suit has expired, the defendants cannot be denied their right to have the suit dismissed on this ground. The argument was that the condo nation even if now made wilt not be of any assistance to the plaintiff for the suit which admittedly falls under either Article 61 or Article 95 of the Limitation Act will be on the date of the grant of this application barred by limitation. To meet this situation Mr. A. Rauf. contended that the effect of the grant of this application and payment of cost in pursuance thereof will have the same force and the effect as if the cost had been paid on the date of making of the application under section 148, C. P. C. For this purpose learned counsel invited my attention to a decision reported as Richard Benjamin Wheeler Hains v. Ismail and others (P L D 1970 Kar. 628). In this case delay in payment of the court‑fee was condoned by the Court under section 149 read with the provi sions of Order VII, rule 11(c), C. P. C. and it was held that Court can allow the deficiency in court‑fee to be paid even though the limitation for presen tation of the plaint had expired provided the plaint is itself presented within time. Mr. Saeeduzzaman sought to distinguish this case by pointing out the Court gave effect to section 149, C. P. C. which itself provided that the Court may allow deficiency in court‑fee to be made good and when this order is complied with it will have the same force and effect as if the court‑fee has been paid in the first instance, but there is no such parallel provision in section 148, C. P. C. and, therefore, an order made under this section will have effect from the date on which such an order is made and not retroactively. The argument is no doubt attractive but to my mind without force, for if given effect to, it will produce harsh and unjust consequences. Assuming that this application had remained pending on the file of the Court for its orders, not on account of any default on the part of the plaintiff but say on account of non‑availability of Court time and in the meanwhile the period of limitation had expired, should the plaintiff be made to suffer thereby? In the present case the plaintiff filed the application under section 148, C. P. C. within the period of limitation but the application remained un-disposed of on account of his inadvertence. It cannot be said that the plaintiff was not anxious to pay the cost. It was also necessary for him to make an application under section 148, C. P. C. for the cost could not have been deposited in Court in absence of an order for the time for its payment had already expired. In the circumstances if the Court extends the time, the two sections 148 and 149, C. P. C. should be read together and applying the principle of the latter, the extension must be given effect to from the date on which such an application was filed. I will, therefore, grant this application and allow the plaintiffs a week's time from the date hereof to pay the cost. Subject as aforesaid, the suit is maintainable.

8. Issues Nos. 1, 2 and 5.‑These issues may be conveniently combined together. The burden of proof, in so far as fraud, misrepresentation and deceit is alleged against the defendants, is clearly on the plaintiff. The main argument of Mr. Saeeduzzaman was that the plaintiff has in his evidence not only departed from the case set out in the plaint but that either of these cases is totally at variance with the case that he had set up in his earlier suit filed in the Civil Judge's Court being Suit No. 1607/1968. In this suit the fraud against the defendants was detailed in paragraphs 4 to 16 which read as follows:‑‑

"(4) That the defendant No. 3 about 10 or 15 days before 12‑4‑1966 represented to the plaintiff that the defendant No. 2 wants to do some transport business and in this connection he wants a P. C. D. loan of Rs. 50,000 (Rupees Fifty Thousand) in the name of defendant No. 1. He further asked the plaintiff that the help sought by defendant No. 2 in this connection would be in the form of a guarantor which the plaintiff has to provide.

(5) That the plaintiff agreed to help defendant No. 2 as defendant No. 2 had extended a number of facilities in the grant of F. C. D. loans overdraft etc. to the plaintiff. The plaintiff was in fact under moral obligations to extend help to the defendant No. 2.

(6) That the defendant No. 3 in this connection further requested the plaintiff to provide sum of Rs. 5,000 to open an account in the. National Bank of Pakistan, Liaquatabad Branch, Karachi in the nave of the defendant No. 1 as the defendant No. 2 had no money to open an account. The proposal was that the defendant No. 2 would open an account in the name of the defendant No. 1 in the National Bank of Pakistan, Liaquatabad Branch, Karachi, and would obtain a sanction for F. C. D. loan in the sum of Rs. 50,000 on the account of defendant No. 1 and thereafter the said sum would be transferred to the account of the plaintiff from which the plaintiff would purchase a chassis and build a bus and also secure the permit, insurance etc. to make it road worthy. The plaintiff had agreed to the proposal.

(7) That on the representation of defendant No. 3, the plaintiff gave a sum of Rs. 5,000 for the purpose of opening an account in the name of defendant No. 1 on 11‑4‑1966 and himself went to the National Bank of Pakistan, Liaquatabad Branch on 12‑4‑1966 to confirm the facts from the defendant No. 2 himself. He met the defendant No. 2 in the bank where the defendant No. 2 admitted to have received the amount for opening the account of defendant No. 1. He prepared a cheque for Rs. 5,000 and wrote it in figure only on the cheque, to be drawn on the account of defendant No. 1 and promised the plaintiff to obtain signature of defendant No. 1 and thereafter to deposit the same either in the account of the plaintiff to hand over the sum of Rs. 5,000 in cash to the plaintiff's Munshi namely, the defendant No. 3. The plaintiff was asked by the defendant No. 2 to put his endorsement (signature) on the back of the cheque which the plaintiff did in utmost good faith and under the assurance of defendant No. 2 that the amount of Rs, 5,000 would be returned to him. The cheque was written in the handwriting of defendant No. 2 himself.

(8) That the plaintiff was told subsequently by the defendants Nos, 2 and 3 that the sum of Rs. 50,000 as F. C. D. loan has been granted on the account of defendant No. 1 and the said loan amount would be credited in the account of the plaintiff for the purchase of the Chassis etc., shortly.

(9) That plaintiff had given the sum of Rs. 5,000 on 11‑4‑1966 and on 12‑4‑1966, the plaintiff had gone to the Brink and talked to the defendant No. 2. On 18‑4‑1966 a cross cheque of Rs. 50,000 was sent by Messrs Zia Transport as arrears on account of the plaintiff to be credited in his account in the National Bank of Pakistan, Liaquatabad Branch, Karachi which was credited without informing the plaintiff. The cross‑cheque was sent to the National Bank of Pakistan, Liaquat abad Branch by Messrs Zia Transport & Co. directly. The plaintiff was told on the subsequent visit to the National Bank of Pakistan, Liaquatabad Branch that the P. C. D. loan amount of Rs. 50,000 granted to the defendant No. 1 has been withdrawn from his account and credited to the plaintiff's account and in this connection the defendant No. 2 showed a slip of deposit of the sum of Rs. 50,000 which in fact related to the deposit of the sum given by Messrs Zia Transport & Co. It was a big fraud. The plaintiff was made to understand that the F. C. D. loan granted to defendant No. 1 has been credited to his account.

(10) That having been assured regarding the transfer of F. C. D. Loan amount the plaintiff was asked by the defendants Nos. 2 and 3 to purchase a chassis for the proposed bus in the name of the defendant No. 1 and accordingly the plaintiff purchased the Chassis No. S. B. 5‑68302 and Engine No. 5/SB‑79015 and paid an amount of Rs. 31,750.00. The procedure adopted by the defendant No. 2 in the delivery of the purchase amount of the chassis to Eastern Automobiles Ltd., was that he obtained on a blank slip the signature of the plaintiff representing that he would get a further P. C. D. loan to be granted in the name of the plaintiff and that the limit of the loan from Rs. 25,000 shall be extended to Rs. 50,000. The plaintiff in fact was all unaware regarding the modus operandi of the defendants and in this way in which the fraud was being committed on him. He even did not think that a responsible officer like the defendant No. 2 being Manager of the National Bank of Pakistan, Liaquatabad Branch, would be a party to fraud, In good faith, he therefore, signed the blank slip as asked by the defendant No. 2. What the defendant No. 2 did was to have converted the said blank slip into a Demand Voucher issued for the purposes of getting extra P. C. D. loan by the plaintiff from the bank.

(11) That the defendant No. 2 committed the fraud by converting the said blank slip into a debit voucher duly signed by the plaintiff and under the authority of the alleged demand voucher issued a D. D. No. 033808 to defendant No. 1 who again handed over the said D. D. to Messrs Eastern Automobiles Ltd., Mohammad Ali Jinnah Road, on 21‑4‑1966, as payment against their Bill No. 45036. Naturally Messrs Eastern Automobiles Ltd , got the sum of Rs. 31,750 transferred in their own account from the account of the plaintiff in the National Bank of Pakistan. Liaquatabad Branch, Karachi. It may be noted that even at this stage the plaintiff being an illiterate person did not know as to what is being done against him and believed the transaction to be genuine, mainly because the defendant No. 3 acted in collusion with defen dant No. 2 and persuaded the plaintiff that the transaction is genuine.

(12) That consequently Messrs Eastern Automobiles Ltd., transferred the said sum from the account of the plaintiff to their account. The payment of the purchase price of the engine and chassis, referred to above was in fact made by the plaintiff himself and not by the defendant No. 1. The plaintiff further paid a sum of Rs. 14,000 through different cheques and cash through Sultan broker and in this way paid to Messrs Eastern Automobiles Ltd., a total sum of Rs. 45,570 as purchase money of the Chassis No. S. B /5‑68300028 and Engine No. 5‑SB/79015. The plaintiff' is, therefore, the owner of the chassis and the engine although Eastern Automobiles Ltd., issued the receipt for the payment in the name of defendant No. 1. The photo stat copy of the bill is produced herewith as Annexure `A' and the receipt of Rs. 31,750 as Annexure `V'. The originals are with the plaintiff.

(13) That the plaintiff remained all along under the impression that it was the defendant No. 1's money which allegedly had been credited to the plaintiff's account, has been actually paid for the purchase of engine and chassis. The defendant No. 2 consequently, after the purchase of the above‑said chassis and engine asked the plaintiff to build the body of the bus and promised to pay back the cost of Rs. 14,000 for building the bus body later on. The plaintiff invested a sum of Rs. 14,000 as agreed between defendant No. 2 and the plaintiff verbally and in mutual confidence with each other and the plaintiff completed the bus within a period of one and a half months from the date of purchase of the chassis and engine and also got the bus registered in the name of defendant No. 1. He also obtained the Insurance Policy and com pleted other formalities of Motor Vehicae3 Act and in this way spent about a sum of Rs. 2,000 from his own pocket.

(14) That the defendant No. 2 asked the plaintiff to run the bus on the road under the plaintiff's supervision and that of the defendant No. 3 being Munshi of the plaintiff. The bus ran for about two months under the supervision of the plaintiff and the daily account of the income and expenditure was properly maintained and the income was credited by defendant No. 3 as clerk of the plaintiff in the account of defendant No. 1. The plaintiff practically had nothing to do with the account as the same was in the hand of defendant No. 3."

15. That the plaintiff after two and a half months objected to the credit ing of the daily income of the above‑noted bus in the account of defendant No. 1 as the plaintiff was not even paid a sum of Rs. 14,000 as cost of the bus building. The defendant No. 2 immediately took leave for one month and the defendant No. 3 left the service of the plaintiff. The plaintiff got suspicious and made enquiries from the bank and came to know that a fraud has been played upon him and the F. C. D. loan alleged to have been obtain ed in the account of defendant No. 1 was never credited to the plaintiff's account and that the purchase price of the chassis and engine was paid by the plaintiff himself under fraud in collusion with the defendants Nos. 2 and 3.

16. That the defendant No. 2 after a few months came back to the plaintiff saying that he has to pay back the alleged P. C. D. loan obtained by .him in the account, of defendant No. 1 and that he would sell the bus and close up the account of loan. The plaintiff did not even object and de livered the possession of the bus to defendant No. 2.

In a rejoinder dated 16‑11‑1968 (Exh. 9/3) filed by the plaintiff in that suit the fraud against the defendants was alleged in the following words:

"(3) That the cheque number referred to by the defendant No. 1 dated 12‑4‑1966 for a sum of Rs. 50,000 is forged cheque for two factors viz, (a) The cheque does not bear my signature as there is duplication in the signature it self ; (b) the numerical figure in the cheque has been forged. It has been admitted by me that defendant No. 2 obtained my signature on the back of a cheque as a payee, which he represented to be a return of Rs. 5,000 (Rupees five thousand) given by me in cash to defendant No. 1 as loan at the time of opening his account. The cheque was not even signed by defendant No. 1 but only at the bottom on the side of the cheque Rs. 5,000 was written in figures only.

(4) That the defendant No. 2 had promised to en-cash the cheque and to return the sum of Rs. 5,000 to me either through my Munshi or to credit it to my account.

(5) That it appears, the defendant No. 2 has added one zero more in the numerical figure of Rs. 5,000 and made it Rs. 50,000. The words fifty thousand written in English script is in the handwriting of the defend ant No. 2 or of some body else, and the defendant never credited the amount of Rs. 5,000 either to my account or paid me in cash. The position is that I never received Rs. 5,000 or Rs. 50,000 and the defend ants in collusion with each other withdrew the sum of Rs, 50,000 from the account of defendant No. 1 on the strength of the alleged cheque and have thus cheated me, I have already filed a complaint under section 420, P. P. C. which is pending investigation."

9. In his cross‑examination the plaintiff was specifically confronted with paras. 10 and 11 of the above plaint and paras. 3, 4 and 5 of his rejoinder but he had no explanation to offer no comments to make except that he had no knowledge of these allegations, could he say anything about it, and that he was not aware of the full facts at the time of filing of the earlier suit. This last statement will be presently shown to be incorrect. It was perhaps for these reasons that the learned counsel for the defendants saw no purpose in confronting the plaintiff with each and every allegation contained in the plaint and the rejoinder. In the plaint of the present suit the case set out is that the plaintiff was fraudulently led to believe that the sum of Rs. 50,600 had been credited to his account and deceived into purchasing the bus chassis, build body for it and make it roadworthy, with his own funds. The plaint gives no date on which the alleged misrepresentation was made nor does it disclose the date of its revelation to the plaintiff. It also made no reference to the cheques of Rs. 5,000 or Rs. 50,000 nor to the settlement arrived at between the parties on 12‑9‑1967. The variation in‑between the two versions is not only wholly inconsistent but irreconcilable and to my mind fatal to the plaintiff. In his deposition the case of the plaintiff was that he did not receive any cheque for Rs. 50,000 from the defendants and that his signatures on its reverse was a forgery and that he never en-cashed his cheque. In the arguments this case was further enlarged and it was stressed that this cheque did not even bear the signature of the drawee, the defendant No. 1 but that the defendant No. 2 had signed for the defendant No. 1 and that the entire transaction was arrived at by the defendant No. 2 who was the moving figure and its sole beneficiary. In the previous litigation the plaintiff had admitted his signature on the reverse of this cheque but alleged that this was in fact a cheque for Rs. 5,000 written in figures only without any signature of the defendant No. I which the defendant No. 2 promised to en-cash and return the sum of Rs. 5,000 to the plaintiff but the defendant fraudulently added one more zero converting the cheque into Rs. 50,000 with which he withdrew the sum of Rs. 50,000 from the account of the defendant No. 1 and thus cheated the plaintiff. This same fraud was reiterated as late as 2‑10‑1969 by Mr. Khalid M. Ishaque, a Senior Advocate of this Court appearing for the plain tiff in L. P. A. No. 126 of 1‑469. The Division Bench recorded the statement of Mr. Khalid Ishaque re‑asserting that the aforesaid paras. 3, 5 and 9 of the said counter‑affidavit were correct. The plaintiff is bound by prior assertion made initially on 16‑11‑1968 and reiterated by his counsel on 2‑10‑1969 and his denial in the Court that the cheque does not hear his signature on the reverse is wholly unbelievable. This denial was to my mind made only to avoid the natural inference there from that he had received the amount in cash. Mr. A. Rauf, the learned counsel for the plaintiff was at great pains to point out the unlikelihood of the plaintiff being handed over of a bearer cheque of Rs. 50,000 when at least a substantial part of this sum was to be utilized for purchase of the chassis for which a demand draft was prepared by the bank by debiting the plaintiff's account. He also went on to argue that it was highly improbable that the plaintiff had agreed to build a body and run the bus for the exclusive benefit of defendant No. 1 while the entire investment made was to come from the loan of Rs. 50,000 advanced by the bank to defendant No. 1 on the guarantee provided by the plaintiff. Mr. Rauf with justification de monstrated that the loan of Rs. 50,000 was procured by the defendant No. 2 for the defendant No. 1 by furnishing palpably false information to the bank regarding the status and the capacity of the defendant No. 1. I have little doubt that the parties have not chosen to come out with the entire truth. I cannot, however, overlook the vital unexplained inconsistency in the case set up by the plaintiff in the earlier suit and the present suit. Faced with this situation Mr. Rauf, went on to argue that the previous suit was withdrawn with the result that the pleadings in the previous case ceased to exist and therefore, incapable of producing any repercussions. The learned counsel relied on observations of the Culcutta High Court in the case of Bechara Chowdhry and others v. Prince Chandra Chartfrjee and others (A I R 1925 Cal.825), that when a suit is allowed to be withdrawn with liberty to bring a new suit under Order XXVII of the Code of Civil Procedure "it should be regarded as never brought. It is available for no purpose." These observations were accord ing to the learned counsel quoted with approval in a Dacca case reported in (P L D 196! Dacca 504). Reliance was also placed on another Calcutta case reported in Sashi Bhusan Basuri v. Mod Bela Desai (A I R 1945 Cal. 317.), in which it was observ ed that "when a Court grants leave to file a fresh suit or proceeding on the identical, cause of action, the withdrawn suit has no existence in the eye of law. It is available for no purpose and parties are relegated exactly to the same position which they occupied before the suit was brought " In none of these cases it may be noted the Court was concerned with admissions made by the parties in the proceedings in the previous suit which are clearly admissions a within the means of the expression contained in section 17 of the Evidence Act. The context in which the above observations were made are altogether different. In 1945 Calcutta case the Court was considering the effect of with drawal of the earlier suit under Bengal Money Lenders Act with permissions to file another one on the same cause of action, on the subsequent proceedings started by the plaintiff under section 37‑A of the Bengal Agricultural Debts Act, instead of filing a fresh suit under Bergal Money Lenders Act. In 1925 Calcutta case the Court was called upon to interpret section 109 of the Tenancy Act and the question was whether it barred the jurisdiction of the civil Court when a previous application under section 105 of the Act had been withdrawn with leave to bring a fresh suit. The observations relied upon were made by the only dissenting Judge who answered the reference in the negative, on the ground that the Act gave two alternative remedies one under section 105 and the other by filing a suit and by obtaining leave to withdraw an application under section 105 with permission to file a fresh suit, the latter remedy was not lost. In the Dacca case the Court was called upon to exa mine the admissibility of a written statement of a dead person under section 32 of the Evidence Act. The plaintiff's claim that as the senior‑most chella he had been nominated by his grit, Keshal Das, to succeed him as Mnhant of certain dichis was sought to be disproved by production of a w1itten state ment filed by this Keshal Das in an earlier suit filed by the plaintiff but withdrawn by him under section 23, C. P. C. The written statement of the deceased in the earlier suit was held inadmissible against the plaintiff for the truth of the allegations contained in the written statement had never been tested by the Court.

10. The aforesaid observations are, therefore, of no assistance to the plaintiff for they mutt be read in conjunction with the facts of the case on which they are founded. It has been repeatedly asserted in numerous judg ments that the danger of regarding a decision based on particular set of circumstances which were before the Judge's mind and formed the mould on which the proposition of law, however, broadly stated, was shaped, cannot be over‑rated.

11. I may refer to a few other aspects of this matter which cast serious doubt on the plaintiff's case. According to the plaintiff's own admission he became aware of ail the facts as narrated in this Court by 22‑4‑1967. It is, therefore, not correct that his previous statements made by him in Suit No. 1607/1968 were on account of any ignorance of "all the full facts". On 24‑4‑1967 the plaintiff wrote a letter to the Excise and Taxation Department in which he stated that the bus in question was being run in partnership under the name and style of Ishaq Transport, which according to his deposition was an incorrect statement. In this the plaintiff referred to his claims against the bus, which claim, he has deposed, was for my body building charges of the bus." Why did not the plaintiff state in this letter that the bus had in fact been purchased with his money and was his own property? Again when it came to parting with the possession of the bus. the plaintiff readily deliver ed the same to the defendant No. 1 for sale, though he had yet to receive at least his body building charges and other incidental expenses. Lastly it is not easy to believe that it was only on or about 22‑4‑1967 that the plaintiff became aware of the fact that credit entry to his account of Rs. 50,000 made on 18‑4‑1966 was in respect of a cheque of this amount received from Zia Transport and not one transferred from the defendant No. 1. This was a substantial amount due to the plaintiff from his debtor Zia Transport and its non‑payment for almost a year could not have been irrelevant to the plaintiff. The result is that the plaintiff has failed to prove the fraud or misrepresenta tion alleged against the defendants Nos. 1 and 2 or that be had not received the sum of Rs 50.000 under bearer cheque dated 12‑4‑1966 bearing his signa ture on the reverse or that he had purchased the bus chassis from his own funds, it will, therefore, follow that the bus was at no time held by the defen dants Nos. 1 and 2 in trust for the plaintiff or that the defendants are account able to the plaintiff for the income, if any, from the bus, received by the defendants. These issues are answered accordingly.

11. Issue No. 4.‑The plaintiff bad as aforesaid received from the de fendants Nos. 1 and 2 the sum of Rs. 50,000 only. Plaintiff paid for the chassis by demand drift a sum of Rs. 31,750. The defendants had been in formed that the plaintiff had actually paid a sum of Rs. 45,000 which it would appear, was at that time not disputed by the defendants. A further sum of Rs. 12,000 or Rs. 14,000 was spent by the plaintiff on body building charges and a further total additional sum of Rs. 2,030 towards road permit, insurance and other charges. Thus vie plaintiff had incurred a total cost of Rs 61,000. and whether or not the plaintiff is entitled to receive from the defendants 1 and 2 the excess amount of Rs. 11,000 will depend upon my answer to additional issue No. (i).

12. Issue No. 7.‑That the bus in question was handed over by the plaintiff to the defendants voluntarily is not domed by him. In the previous suit the plaintiff had admitted that the bus was so delivered for sale, and when confronted with this admission, he stated that it was incorrect but could give no explanation. Defendant No. 3 had admittedly no notice of the plaintiff's claim in respect of this bus. The defendant No. 3 paid a total sum of Rs. 45,030 to defendant No. 1 vide Exh. 13/1. The plaintiff has only de ‑tied the knowledge of this payment. All subsequent payments towards regis tration fees, insurance etc. have been made by the defendant No. 3. All that was argued on behalf of the plaintiff was that the bus was not transferred in favour of defendant No. 3 and he did not become owner within the meaning of the expression contained in the Motor Vehicles Act. The definition contained in the Motor Vehicles Act has no relevancy for a person who may have sold the bus may still continue to be the "owner" for the purpose of that Act until the bus is registered in the name of the purchaser. Between the sell and the purchaser non‑registration will not otherwise prevent the passing of ,the title in the bus sold. This issue is, therefore, answered in favour of defendant No. 3.

13. Additional issue No. (ii).‑The document dated 12‑9‑1967, Exh. 9/7 ‑which admittedly bears the signature of the plaintiff and defendant No. 2 reads as follows :‑

"We the undersigned gone through the financial accounts relating to their dealings and that neither of us now, owes any amount against any one.

That all the accounts between us have been fully reconciled as on 12‑9‑1967 and this agreement fully and finally settles the claim against each other.

It is the case of the plaintiff that this document exclusively related to Zia 'Transport account which concerned only the defendant No. 2 and that the defendant No. I had signed this document subsequently, behind his back. To this end in view it was pointed out that the document when originally typed did not contemplate the signature of the defendant No. 1, whose name unlike the names of the Plaintiff, the defendant No. 2 and witnesses was not typed. That this was in fact so is not disputed by the defendants. Their ex planation, however, that this document was got drafted by the plaintiff and at the time of its execution it was pointed out that defendant No. 1 was concern ed with it and he accordingly signed this document simultaneously along with other executants. The same version is given by one of the two witnesses Muhammad Dawood (Exh. 10) to this document. The plaintiff has signifi cantly not examined the other witness to this document who is his own nephew nor has he produced his copy of this document. The plaintiff's contention was that this document related to Zia Transport business which was being managed by defendant No. 2. Admittedly this business was owned by Zia son of Ashiq Hussain, an officer of the Bank at the Head Office incharge of People's Credit Account. The Liaquatabad Branch of the Bank had no account of Zia Transport nor had they sanctioned any loan to Zia Transport. The defendant No. 2 has categorically stated that he had no concern with Zia Transport. All that was alleged against defendant No. 2 was that he was managing these business but on behalf of Mr. Ashiq Hussain who was the real owner of the business but no attempt was made to examine either Zia in whose name the business stood nor Mr. Ashiq Hussain who was said to be its real owner. It is further significant to note that this document was signed by the plaintiff after he had discovered the alleged fraud committed by the defendants. I am unable to accept that the plaintiff whose confidence had thus been grossly abused and who had been put to great loss, signed this widely worded document, in presence of his nephew, giving complete and total. dircharge at least to defendant No. 2. who was according to Mr. A. Rauf the real party and the arch villan of the price unless of course the accounts had been duly settled as the document purports to record. In this state of the evidence I have no hesitation in holding that parties had fully reconciled all the accounts relating to their dealings on 12‑9‑1967 leaving nothing due and payable by one to other.

14. Additional Issue No. (1).‑Mr. Saeeduzzaman contended that the suit is essentially based for refund of the amount spent by the plaintiff for the bene fit of the defendants and the article which will for the purposes of limitation attract is Article 61 which provides period of limitation for three years from the date when money was so paid. It was sought to be argued that the period started in May 1966 when the bus had been made ready in all respects and the suit which was filed on 10‑6‑1969 is accordingly barred. The plaint read as a whole, is to my mind based on fraud and misrepresentation and though no particulars of this fraud and misrepresentation are given as to when this fraud was committed, from the evidence it would appear this fraud was a allegedly discovered in April 1967 and the Article relevant would be Article 95 which will bring the suit within the period of limitation. This issue is, there fore, decided against the defendants.

15. The result is that this suit is dismissed, but in the circumstances the defendant No. 3 alone will be entitled to costs from the plaintiff and with this dismissal, the interim orders in respect of the bus will stand vacated.

S. A. H. Suit dismissed.