M. SALEEM FAROOQUI Versus SAEED MUHAMMAD BASHIR

This revision is directed against the judgment/ decrees dated 30‑4‑1980 and dated 25‑1‑1982 passed by the learned VIth Extra Joint Civil Judge, Hyderabad and the learned District Judge, Hyderabad in Suit No.200 of 1979 and Civil Appeal No.92 of 1980 respectively, decreeing the suit of the respondent for a sum of Rs.14,720 plus 6% interest thereon from the date of the institution till realization.

2. The brief facts leading to the filing of the above revision are that at the request of the applicant the respondent's bank High Court Branch advanced a loan of Rs.10,000 to the applicant. It seems that at the request of the applicant his personal account including the above loan was transferred to the respondent's bank at District Council, Thandi Sarak Branch, Hyderabad. It seems that the above sum was due and payable upto 28‑3‑1979, which the applicant had failed and neglected to pay and, therefore, the respondent filed aforesaid suit for recovery of the above amount on 18‑4‑1979. It further seems that the applicant was served with the summon and had put in appearance and had taken a number of adjournments for filing written statement but did not file the same. On 10‑4‑1980, the applicant was declared ex parte. The respondent filed an affidavit in ex parte proof on 16‑4‑1980 and the suit was decreed on 30‑4‑1980 in the above terms. The applicant being aggrieved by the above judgment/decree filed Civil Appeal No.92 of 1980, which was dismissed by the learned District Judge, Hyderabad by aforesaid judgment/decree dated 25‑1‑1982. The applicant being aggrieved by the above two judgments/ decrees has filed the present revision.

3. In support of the above revision :Mr. S. Madad Ali Shah,v learned counsel for the applicant, has urged as follows:‑

(i) That since no specific order for filing an affidavit in ex parte proof was passed by the learned trial Court, no decree could have been passed on the basis of affidavit in ex parte proof.

(ii) That even affidavit in ex parte proof is not in accordance with Rule 3 of Order 19, C.P.C. inasmuch as it has not been stated that from which source the deponent had acquired knowledge.

(iii) That Nisar Ahmad was not authorized to file an affidavit in ex parte proof on behalf of the respondent as two photostat copies of the Power of Attorneys on record of the trial Court do not contain any power to give evidence and secondly none of them is in favour of Nisar Ahmed.

(iv) That the trial Court has no jurisdiction, firstly for the reason that the loan was advanced at Karachi and the loan documents were executed at Karachi and secondly, the subject matter of the suit was beyond pecuniary jurisdiction of the trial Court.

On the other hand Mr. Saleem Iqbal learned counsel for the respondent, has urged as under:‑

(i) That on 10‑.4‑1980 there was an order for ex parte proof and, therefore, the respondent could file an affidavit in ex parte proof .

(ii) That the affidavit in ex parte proof was based on the knowledge of the deponent and, therefore, there was no violation of Rule 3 of Order 19, C.P.C.

(iii) That since Nisar Ahmed had filed the plaint and, therefore, he could have filed the affidavit in ex parte proof.

(iv) That the trial Court has jurisdiction at Hyderabad as the account in question was transferred at the request of the applicant from Karachi to Hyderabad 'Branch and secondly he was residing ordinarily at Hyderabad where the suit was filed.

4. I may take‑up the question of the jurisdiction of the trial Court first. It appears from the averments‑contained in the plaint that the applicant's account in the High Court Branch Karachi was transferred at his request to District Court, Thandi Sarak Branch Hyderabad and secondly it appears that the applicant at the relevant time when the suit was filed was ordinarily residing and carrying his practice as a lawyer at Hyderabad. I am, therefore, of the view that the suit could have been filed at Hyderabad.

5. As regards the second limb of the above arguments that the subject‑matter of the suit was beyond the pecuniary jurisdiction of the learned trial Court, it will suffice to observe that admittedly the learned trial Court had jurisdiction upto an amount of Rs.15,000 being a IInd Class Civil Judge and the suit amount was Rs.14,720, it was within the pecuniary jurisdiction of the trial Court. The mere fact that the respondent had claimed interest from the date of the suit till the payment would not change the above factual position. I may observe that the question of the jurisdiction is to be determined with reference to the amount of claim in the suit to the date of presentation of its plaint and not with reference to the decree which might be passed. In a suit for accounts some time decree is passed after taking accounts which is beyond pecuniary jurisdiction of the Court in which the suit was instituted but this fact does not render the decree null and void.

6. As regards the first submission of Mr. S. Madad Ali Shah, learned counsel for the applicant, that since.there was no specific order of the learned trial Court for filing of affidavit in ex parte proof, the learned trial Court was not justified in passing the decree on the basis of the aforesaid affidavit in ex parte proof, it may be observed that it seems to be the correct position from the record that there is no express order containing‑‑the direction to the respondent to file an affidavit in ex parte proof. The order, dated 10‑4‑1980 indicates that the case was fixed for ex parte proof on 16‑4‑1980 and not for filing the affidavit in ex parte proof. Mr. S. Madad Ali Shah has referred to the following cases in furtherance of his above submission:‑‑

(i) Messrs Shamsunder Rajkumar, a Firm dealing in Oil, Cakes, etc. Calcutta v. Messrs Bharat Oil Mills, Nagpur reported in A I R 1964 Bombay 38 (V 51 C 4).

(ii) Syed Modaris Ali v . Syed Muhammad Ilyas Ali and others reported in P L D 1971 Dacca 309.

(iii) Rehmat Ullah v. Tufail Hussain and others reported in 1987 CLC 792.

7. The above 3 cages in fact support the contention of the learned counsel for the applicant and have laid down that in absence of an express order by the Courf to file an affidavit in ex parte proof, the same cannot be accepted as evidence. Mr. Saleem Iqbal, learned counsel for the respondent, has not been able to cite any case‑law contrary to the above cases. However, he submitted that the order, dated 10‑4‑1980 for fixing the case for ex parte proof on 16‑4‑1980 implies the filing of an affidavit in ex parte proof. In my view, no such implication can be inferred from the above order, dated 10‑4‑1980. It was then contended by Mr. Saleem 1qbal, learned counsel for the respondent, that since there was a certified copy of the statement of account on record, it 'was a sufficient piece of evidence for decreeing the suit in terms of section 4 of Bankers' Books Evidence Act. The reliance has been placed on the case of The Australasia Bank Ltd. v. Messrs H.S. Mahmqod Hassan Akbar and 2 others, reported in PLD 1983 Kar. 431 and the case of Allied Bank ‑of Pakistan Ltd. v. Messrs Kohinoor Cotton Mills Ltd. and 3 others, reported in P L D 1985 Lah.

89. In this behalf, it may be observed that unless the D above statement of accounts is tendered through a witness or through an affidavit. in ex parte proof if it would have been ordered, the filing of ‑the same would not be sufficient for the purpose of ex parte proof.

8. Reverting to the submission of 31r. S. Madad Ali Shah, learned counsel for the applicant, there is nothing on record to indicate that Nisar Ahmed, who has sworn affidavit in ex parte proof had the power to do sd, it may be observed that he was the person, who had verified the plaint. But the photostat copies of the two power of attorneys on record do not contain fiis name, in one of the copies, the name of one Bashiruddin Saeed Khan is mentioned, whereas in the other‑copy, no name is legible, either the column containing the name is blank or in the photostat copy, the name is not reflected. Be that as it may, there is nothing on record for the time being to indicate that \isar Ahmed was authorised to file the affidavit in ex parte proof.

9. For the aforesaid reasons, I would set aside the two judgments and decrees and remand the case to the learned trial Court. Since the above suit is pending for a long period, I would direct the learned counsel for the parties to appear before the trial Court on 27‑3‑1988 without any further notice from the Court and the learned trial Court shall dispose of the suit within 6 months. However, there will be no order as to costs.

H.B.T./fit‑411/K Order accordingly