MECHANISED CONSTRUCTION OF PAKISTAN LTD. Versus QASIM HUSSAIN SHAH

1. By this revision application under section 115, C.P.C. the petitioner has challenged the two concurrent judgments of the Courts below. The relevant facts are as follows:‑

2. The petitioner instituted Civil Suit No. 164 of 1976 for recovery of sum of Rs.11,551.89 against the respondent on the allegations that on 19‑2‑1973 under a work order bearing No. M‑28800 they carried on the repairs of a tractor belonging to the respondent at an estimated costs of Rs.14,090 out of which the respondent paid a sum of Rs.3,700 only. That again on 6‑6‑1973 a fresh work order No. M‑29245 was opened at the request of the defendant for transportation D‑6 Dozer which was fully repaired from the workshop of the petitioner and against that work order the respondent deposited a sum of Rs.500 only. That another estimate bearing No. 648, dated 17‑5‑1973, amounting to Rs.8,905 being rental hire of D‑8 Dozer for 8 days was prepared and out of which the defendant paid a sum of Rs.7,914 vide receipt No.18338. That the respondent again approached the petitioner for extension of operating time of D‑8 Dozer for 8 more days and on his request the changed work order No. FM‑29145, dated 14‑6‑1973 was prepared. That accordingly a final bill for the outstanding amount of Rs.11,551.89 was issued but the defendant failed to pay the same and accordingly the suit was filed. The defendant/ respondent contested the suit and pleaded that he had made over payments to the petitioner and as such he was not liable to pay anything towards the claim in the suit. The respondent also pleaded that the suit was not maintainable as the necessary party namely Executive Engineer, Sanghar was not before the Court. On the basis of the above controversies between the parties the learned trial Court framed the following issues:‑

(1) Whether the suit is barred by law?

(2) Whether different work orders were opened at the request of the defendant as averred in the plaint?

(3) Whether the tractor of defendant was fully repaired by the plaintiff.

(4) Whether the facts stated in para.9 of the plaint are correct, if so, what is its effect?

(5) What should the decree be?

3. On issue No.l the trial Court repelled the contention of the respondent with regard to territorial jurisdiction of the Court as well as non‑joinder of necessary party and held that the suit was competent. On issue No.2 it was held that the work order was open at the request of the respondent who had approached the petitioner through XEN, Sanghar. Under issue No.3 the trial Court held that no amount was due and outstanding against the respondent at the time the tractor was delivered to him. Under issue No.4 it was held that the enquiry against Muhammad Younus Siddique was still pending and as such contents of para. 9 of the plaint were not correct. As a result of the above findings the trial Court dismissed the suit of petitioner. On appeal the learned First Appellate Court reversed the finding of trial Court on issue No.l and held that the evidence on record fully established that the tractor was repaired at the request of Executive Engineer, Sanghar and both the work orders mentioned in the plaint were opened in the name of XEN, Sanghar and the payment, therefore, were also recorded in the name of XEN, Sanghar. The learned First Appellate Court accordingly reached the conclusion that XEN, Sanghar in these circumstances was a necessary party in the case and his non‑joinder in the proceedings was fatal. On the question of territorial jurisdiction of the Court, the learned First Appellate Court reached the conclusion that as the plaintiff had its workshop at Jamshoro, the Court of District Dadu had territorial jurisdiction to try the case not the Court situated at Hyderabad District. It was also found under issue No.l by the learned First Appellate Court that as the plaintiff is a limited company, the suit could not be instituted without a resolution of the Board of Directors of the Company authorising a person to institute the above suit. The learned First Appellate Court also reversed the finding under issue No.2 and held that the disputed work orders were opened at the request of XEN, Sanghar which was clear from Exhs.24 and 27 on record and as such these work orders were not directly in the name of the defendant. Under issue No.3 the learned First Appellate Court reached the conclusion that as the plea of defective repairing of the tractor was supported on the averments made in the plaint it was quite necessary for the trial Court to have framed this issue. Under issue No.4 the learned First Appellate Court reached the conclusion the fact that the petitioner had accepted transportation charges of the tractor from the factory to the site from the respondent without demanding any balance and delivered the said tractor to the defendant it was reasonable to conclude that delivery was made after recovery of the repairing charges due against it. It was also found by the learned First Appellate Court under this issue that the petitioner were unable to show that the repair work was undertaken by them on credit basis nor any document was produced in support of the fact that the delivery was made without receiving the amount due. In view of the above conclusion the learned trial Court concurred with the conclusions of the trial Court and maintained the dismissal of the suit.

4. Mr. Maroof Ali Khan, the learned counsel for the petitioner has contended before me that the reversal of the findings of trial Court under issue No.l by the First Appellate Court was not justified. It is urged that the suit could be instituted in the Court situated in a place where the defendants carried on business or worked for gain. With regard to non‑joinder of XEN, Sanghar the learned counsel contended that the defendant had undertaken the liability to pay therefore, the XEN, Sanghar was not a necessary party. With regard to absence of resolution of Company to institute the suit, the learned counsel urged that this point was never raised before the trial Court and as such the petitioner had no opportunity to meet this point. On merits of the case the learned counsel contended that the petitioner being a Government organization, for every payment received by them a formal receipt is necessary and as the defendant had failed to produce a receipt for payment of the balance amount allegedly paid to petitioner such payment could not be accepted. With regard to inferences drawn by the Courts below that the petitioner has failed to show that the repair work was done on credit and that delivery in the circumstances of the repair of tractor showed that the same was made after recovery of the charges due against it, the learned counsel contends that such inferences from the evidence on record were not justified. With regard to the reversal of finding under issue No.l by. the First Appellate Court to the extent of territorial jurisdiction of Court the learned counsel for the petitioner rightly contended that the territorial jurisdiction of Hyderabad Court extended in the case as the respondent worked for gain and carried on business within the local limits of that Court. However, it is not correct to contend that XEN, Sanghar was not a necessary party in the suit. It is quite' clear from the pleadings of petitioner as well as the evidence on record in this behalf, that both the work orders against which the payment is claimed in the suit were made out in the name of the XEN, Sanghar. Even receipts of the payment in connection with the above work orders were also issued in the name of Executive Engineer, Sanghar. In these circumstances, the contention of the petitioner that the work order was actually made in the name of the defendant and that he alone was responsible for his payment could only be decided in the suit in the presence of XEN, Sanghar as a defendant. It is significant that in spite of objection in this regard having been raised by the respondent neither any attempt was made at the trial stage nor at the appellate stage to implead XEN, Sanghar as a party in the proceedings. He was not even called as a witness by the petitioner in support of their case. In these circumstances the learned First Appellate Court rightly held XEN, Sanghar as a necessary party to the suit. Apart from it the inferences drawn from the evidence on record that the delivery of the tractor by the petitioner to the respondent after recovery of the transportation charges is indicative, of the fact that the tractor could not have been delivered possession without having realised the repairing charges is neither perverse nor contrary to evidence to record. It was not even pleaded by the petitioner either in their plaint or in their evidence that they had carried out the work of repairing on credit basis. No case for interference is made out. The revision application is accordingly dismissed but in the circumstances of the case I leave the parties to bear their respective costs.

5. H : B . T . / M‑362/ K Revision dismissed