MUHAMMAD FAIYAZ Versus DIRECTOR, PROCUREMENT ARMY
Plaintiffs who are Kabaries and deal in the sale and purchase of old used goods of different nature have brought this suit for recovery of 6,88,461 k.g of M.S. Scrap and in the alternative decree for damages to the tune of Rs.30,00,000 against the defendants.
2. As per averments in the plaint defendant No. l is the sole authority for auctioning the stores of the Defence Services who advertised in November, 1979 for the sale of M.S. Scrap and other items. Defendant No.3 was appointed as Government Auctioneer for the stores of defendant No.2 by way of public auction to be held on 16‑12‑1979. Plaintiffs participated in the auction of defendant No.2 and by offering the highest bid of Rs.7,60,000. for M.S. Scrap weighing 14,12,061 k.g. obtained the same. On completion of all legal formalities, receipts and documents of auction, defendant No.3 issued a delivery letter to defendant No.l for the lot purchased by plaintiffs, who started lifting the M.S. Scrap from the depot of defendant No.2 from 27‑12‑1979. This defendant in all allowed 95 trucks delivery till 9‑2‑1980 weighing 7,23,600 k.g. of M.S. Scrap. On 9‑2‑1980 defendant No.2 obtaining signature of plaintiff's attorney on Form No.3 and refused the delivery of the balance Scrap. Failing to secure remaining M.S. Scrap from the defendants, plaintiffs issued a legal notice to the defendants on 17‑9‑1980 for delivery of the balance M.S. Scrap which was replied by the defendants evasively. As per assessment of the plaintiffs cost of balance M.S. Scrap illegally withheld by defendants Nos. l and 2 is between Rs.25,00,000 to Rs.30,00,000.
3. In a joint written statement filed by defendants Nos; 1, 2 and 4 auction in favour of plaintiffs was admitted. It was maintained that the contract in respect of goods was on the basis of as is where is" and the goods were duly inspected by bidders including the plaintiffs. Defendants specifically disputed that the goods were auctioned on the basis of quantity and explained that gate passes issued were meant to regulate entry and exit in and from prohibited areas. The defendants pleaded that signature of plaintiffs attorney on all the four copies of the payment issue voucher was obtained in‑proof of delivery of entire quantity of goods and there was no refusal to deliver the balance goods as alleged.
4. Defendant No.3 being an auctioneer their name was struck off from the array of parties vide Court order dated 27‑4‑1982.
5. On the pleadings of the parties following issues were settled:
(1) Is the plaint not verified according to law ? If so, what is its effect?
(2) Whether the M.S. Scrap was sold to the plaintiffs as a bulk as lying on the spot on as is where is basis or by weight as stated in Annexure ' A' to the plaint?
(3) Whether the defendants refused or withheld delivery of any part of the contracted goods to the plaintiffs and committed breach of contract? If so, what is weight of such M.S. Bars and what was their market value on the date of breach?
(4) What reliefs plaintiffs are entitled to ?
6. In support of their case plaintiffs examined their brother and attorney Muhammad Bilal who produced documents Exhs.6/1 to 6/17 whereas the defendants examined Arshad Raza Store Houseman and Siddique Ahmed, Assistant Naval Store Officer, both working in the stores of defendant No.2.
7. I have heard learned counsel for the parties and with their assistance gone through the relevant evidence on record. My findings are as under for the following reasons:
Reasons
8. Issue No.l.‑‑This issue was raised on behalf of the contesting defendants for the reason that the copy of the power of attorney filed with the plaint did not precisely authorize the attorney who is the real brother of the plaintiffs to verify, sign and present the plaint on their behalf. In order to overcome this difficulty plaintiffs filed a fresh power of attorney dated 20‑12‑1995 in Court with a copy thereof to the learned counsel for the defendants, but the learned counsel however is of the view that the subsequent execution of the power of attorney ratifying the acts performed by the attorney would not validate the institution of the suit or verification of the plaint on their behalf. Order VI, rules 14 and 15, C.P.C. are the most relevant and illustrative provisions for the resolution of this controversy. Rule 14 postulates that every pleading shall be signed by the party and his pleader (if any) provided that whereas party pleading is by reason of absence or for other good cause unable to sign pleading it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.
9. Rule 15 of the aforesaid order reads as under;
"15. Verification of pleadings.‑‑‑(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified (on oath or solemn affirmation) at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."
10. Likewise Order III, rule 1, C.P.C. authorizes appearance by a party in person or by recognized agent or by his pleader. Word "appear" means to represent and be present on behalf of a party in the various stages of litigation at which it is necessary for him to be present while to act refers to the taking of steps to lay the case before the Court, as for instance, the making of an application or the presentation of his suit or appeal. There is no denial of the fact that the attorney so appointed by the plaintiffs before the filing of the suit was fully authorized to deal with the defendants in all respects with regard to the subject‑matter of the suit including the authority to appear before any of the authorities including Chief Martial Law Administrator and President of Pakistan in connection with the subject‑matter of the suit. The provisions of law referred to above authorize the institution of a suit by a recognized agent on behalf of a party which shall not be invalid in case the authority to act, appear and re present, a party is lacking in some respects and is subsequently ratified, confirmed and approved by the party himself. In the present case plaintiffs had examined their brother Muhammad Bilal being fully conversant with the facts. Indeed a party to the suit is legally entitled to examine any person conversant with the facts of the suit. Learned counsel for the defendants relied upon Munir Hussain v. Mehrunnisa (PLD 1982 Karachi 71) in which Late Z.C. Valliani, J. (as he then was) held that where the power of attorney did not authorize verification, signing and presentation of ejectment petition, the petition filed on the basis of such power of attorney was not validly instituted. This view was taken for the reason that the special power of attorney in the reported case was not attested either by Oath Commissioner or by Magistrate or Notary Public. Even the signatures of the executant were not identified by witnesses in whose presence power of attorney was executed nor attesting witnesses produced to identify her signature.
11. On the other hand learned counsel for plaintiffs referred to Mohammad Rafiq v. Shahenshah Jehan Begum (PLD 1987 Karachi 180) taking the view that the expression "signed by a person duly authorized by him to sign the same" under Order VI, rule 14 was not restricted to written authorization. If authorization was proved, even an oral authorization should be taken to be sufficient. Illustrating the provisions of Order III, rule 1, C.P.C., Haider Ali Pirzada, J. (as he then was) expressed the view that bare reading of Order III rule 1, C.P.C. shows that it only applies to appearances, applications or acts in or to any Court required or authorized by law to be made or done by any party in such Court. Learned Judge further observed that a signature on a plaint is not an appearance or application or act in or to a Court. The presentation of plaint may be an act to or in a Court but the mere act of signing the plaint would not be an act in or to a Court. A bare perusal of Order VI, rule 1, C.P.C. shows that it merely provides that every suit shall be instituted by presenting a plaint. It does not specify as to by whom a plaint is to be presented therefore it can be presented by any person.
12. In Ismail v. Razia Begum (1981 SCMR 687) the view taken was that where the plaintiffs had all along prosecuted their suit with diligence and had appeared as their own witnesses. Non‑signing of the plaint by them at proper stage was a mere irregularity and the Court was entirely justified to direct that the said irregularity may be rectified. Their Lordships rejected the objection of the defendants' counsel on the premises that he had not been able to show as to how such irregularity had prejudiced the defendants and observed that the objection raised was only technical, the moreso when substantial justice had been done between the parties.
13. A reference may be made to, Faqir Muhammad v. Muhammad Bibi (PLD 1991 SC 590) in which the view taken was that it need no emphasis that law and the Courts of the law assist only those litigants whose claim and approach to the Courts are based on honesty and good faith. And when these things are lacking, relief is denied to them. Their Lordships further observed that under Order VI rule 14, C.P.C. every pleading shall be signed by the party and its pleader (if any). A concession under its proviso that the pleadings may be signed by any person duly authorized by the party to sign is allowed only to that party who could not sign the plaint etc. because of his bona fide absence or other good cause such as oversight or inadvertence.
14. Mr. Mushtaq Ahmed Memon, learned counsel for the plaintiffs elaborating his argument that technicalities may not be allowed to thwart the dispensation of justice cited Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) where Kaikaus, J. (as he then was) laid down the following dictum:
"I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the Bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defects. Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent. The ideal must always be a system that gives to every person what is his."
15. On examination of the fresh power of attorney filed on behalf of the plaintiffs duly attested by two witnesses and a Notary Public, I am inclined to the view that irregularity, if at all any, committed at the initial stage of the suit would not by itself defeat the suit and subsequent authorization, confirmation and post facto approval of the acts done by the attorney on behalf of the plaintiffs is valid and lawful. The issue is accordingly answered in negative.
16. Issue No.2.‑‑While the case of the plaintiffs is that the defendants sold M.S. Scrap to them by weight as contained in the delivery letter Exh.6/2 issued by the auctioneer (respondent No.3 in the original plaint) requesting the defendants to deliver a lot of M.S. Scrap 14,12,061 k.g. sold by them on behalf of the defendants for Rs.7,60,000 credited vide Treasury/Bank's receipt No.936/21 dated 7‑12‑1979 and receipt No.939/16 dated 22‑12‑1979. The stand taken by the defendants in the written statement filed under the signature and verification of Mumtaz Abdul Majeed, Naval Store Officer (not a party as defendant) is that the scrap was sold out to the plaintiffs through the auctioneer on "as is where is" basis as reflected in the, public notice advertisied in daily "Mashriq", Karachi dated 23rd November, 1979. Copies of demand note/issue voucher exhibited in evidence as Exhs.6/3 and 7/1 duly signed by the plaintiffs' attorney and Commanding Officer Naval Store Depot, however apart from reflecting the sale of M.S. Scrap for Rs.7,60,000 in favour of the plaintiffs' mention the weight of the scrap as 14,12,061 k.g. in the columns relating to "quantity" as well as "remarks". According to the defendants witness Arshad Raza five copies of demand note/issue voucher are prepared before the commencement of delivery. This witness claimed that third copy of the document is delivered to the purchaser after final delivery and attempted to show that the third copy of the document i.e. Exh.7/1 was got signed from the plaintiffs after final delivery. No doubt plaintiff attorney in his evidence admitted his signature but he denies that he had ascribed the date "9‑2‑1980".
On it and expressly denied to have written it. This denial is significant from the point of view that the defendants tried to explain this signature on the document by stating that it was actually signed by and on behalf of the plaintiffs after taking final delivery of the scrap on 9‑2‑1980. On the reverse of the copy of this document Exh. 7/3 there are entries relating to trucks containing M.S. Scrap taken out from the store of defendant No.2 contained on another sheet giving material details with regard to vehicle number, gate pass number, date and approximate weight or quantity in k.g. Defendants witness serving as Store Houseman in the depot could not explain as to why word "approximate" is written against the weight of goods in the gate passes Exh.6/4/1 .to 6/4/92. While agitating that the word "approximate" was not recorded in Exh.6/3 or 7/1 he was obliged to admit that the words "approximate weight" do appear in the entries on the reverse of Exh.7/3. When called upon the state whether all the goods had been declared before the auction because it was for reason that the auctioneer had mentioned the weight of the goods on their receipt Exh.6/2 (in fact it is a delivery letter) the witness could not deny it and merely stated that auctioneer may have mentioned the approximate weight because the same had not been declared before auction.
17. Apart from the above evidence there are as many as 94 gate passes issued by the defendants in respect of the trucks in which the scrap was taken out from the store depot in pursuance of the contract of sale of scrap. All these gate passes not only mention the registration number of the trucks and the date of the exit but also the approximate weight of scrap which in almost all the gate passes is in round figure and either suffixed or prefixed by the word "approximate". Defendants on their part tried to show that the scrap loaded into the trucks was not actually weighed as there is neither any weighing scale nor any person recording the weighment the fact remains that in the admitted Ledger Folio maintained by them in the store there are entries with regard to the actual weight of scrap issued and balance in the store against each entry. D.W. Arshad Raza being faced with this difficult situation was constrained to admit that before the deliver, of the goods to the plaintiffs according to Ledger Folio 15,44,987.501 k.g. scrap was available in the defendants' stock and after delivery of the goods to the plaintiffs a balance of 1,32,926.501 k.g. remained in stock.
18. Defendants next witness namely Siddiq Ahmed also affirmed that the goods were sold to the plaintiffs on "as is where is" basis and claimed that document executed by the plaintiffs Exhs.6/3 and 7/1 which are third and fourth copies of the demand note are required to be signed by a successful bidder when he removes final consignment of the auctioned goods in his favour. According to this witness the demand note was. prepared on 26‑12‑1979. delivery of the scrap to the plaintiffs commenced or 27‑12‑1979 and the last instalment delivered to them on 9‑2‑1980. While admitting that the scrap was lifted by the plaintiffs through 95 trucks, the witness for obvious reasons avoided to admit that the total weight of the scrap delivered to the plaintiffs was 7,23,600 k.g.
19. Apart from the defendants' evidence there is sufficient, satisfactory and reliable evidence of the plaintiffs' attorney to show that in fact the defendants sold the scrap to the plaintiffs in terms of weight and not in terms of bulk as wrongly agitated by them. Besides the aforesaid documents plaintiffs produced a list of M.S. Scrap Exh.6/5 duly signed by the Commander Naval Store Sub Depot, Karachi certifying that 94 trucks (in fact it should be 95. trucks) loaded with M.S. Scrap were passed out from Naval Store Sub Depot. Further endorsement to the effect that the lot is sold on the basis of "as is where is" basis on the face of it is meaningless because all entries in this list bear the actual weight loaded in each truck and ‑the grand total of the weighment comes to 7,23,600 k.g.
20. Upon a careful scrutiny of the evidence on record and on preponderance of evidence I am inclined to the view that M.S. Scrap was sold to the plaintiffs by weight as reflected in the delivery letter Exh.6/2 issued by the auctioneer on behalf of the defendants and not on "as is where is" basis as wrongly contended by the defendants. The issue is answered accordingly.
21. Issue No.3.‑‑In view of my finding, on Issue No.2 as a necessary corollary finding on this issue would be in favour of the plaintiffs tantamounting to a breach of contract on the part of the defendants. While the weight of M.S. Scrap withheld and not delivered to the plaintiffs is ascertainable from the claim preferred by the plaintiffs and discussed hereinabove there is hardly any evidence as to the market value of the scrap on the date of breach. Unfortunately plaintiffs did not bother to bring any kind of evidence on the record to prove the market value of the scrap either on the date of the contract or on the date of breach. In the absence of any evidence muchless convincing and plausible evidence, it is hardly possible to assess and ascertain the market value of the goods. The issue is answered accordingly.
22. Issue No.4.‑‑It is evident from the foregoing discussion that the contract between the parties relates to the delivery of M.S. Scrap which is obviously a movable property. While section 12 of the Specific Relief Act deals with the contracts which may be specifically enforced, section 21 illustrates and enumerates the contracts which cannot be enforced. Clause (a) of the‑ latter section mentions a contact for the non‑performance of which compensation in money is an adequate relief amongst the contracts which cannot be specifically enforced. Illustration No. 2 to clause (a) governs the contract in the present suit in which compensation in terms of money shall serve as an adequate remedy in a claim for specific performance. The principle embodied in this clause exactly manifests where a Court of Equity will refuse to come to the rescue of the plaintiffs. The principle appears to be the same whether the contract leaves the amount of damages in the event of breach unliquidated or whether it specifies a sum by way of penalty or liquidated damages. In a situation where a suit for damages is the proper remedy the Court in its discretion shall refuse specific performance. In the present case besides seeking specific performance of the contract plaintiffs in para. 12 of the plaint estimated the cost of M.S. Scrap weighing 6,88,461 k.g. between Rs.25,00,000 to Rs.30,00,000 and indeed in the alternative claimed a decree for damages of Rs.30,00,000 against the defendants. It seems that the plaintiffs were fully aware of the legal proposition that specific performance of the contract in this case may not be granted therefore in the alternate they prayed for a money decree by way of damages. On principle I am satisfied that in the event of breach of contract plaintiffs are entitled to a decree for damages on the basis of market value of the goods on the date of breach but unfortunately they have led absolutely no evidence to prove the market value of the goods. In law while the plaintiffs may be entitled to damages for breach of contract they have miserably failed to discharge the onus of roof of value of the goods which cannot be assessed or estimated by any measure. The only evidence on this issue consists of a single sentence stated by plaintiffs' attorney Muhammad Bilal that he claims balance of 6,88,461 k.g. of scrap or Rs.30,00,000 (Rupees thirty lacs only) by way of damages. In my considered view this is no evidence in the eyes of law to be acted upon for the assessment or award of damages in a case of this nature.
23. Learned counsel for the plaintiffs being less confident about the success s of the plaintiffs in the present suit for specific performance contended with all vigour and emphasis at his command that even under section 58 of the Sale of Goods Act, the plaintiffs are entitled to specific performance of the contract but perhaps he lost sight of the fact that section 58 of Sale of Goods Act is subject to the provisions of Chapter II of the Specific Relief Act, 1877 which among other sections consists of section 21 referred to hereinabove. Before parting with this issue, it may suffice to say that the contacted goods are neither of extraordinary special kind nor a rare commodity not available in the market so as to entitle the plaintiffs to a decree for specific performance. On this ground as well, the plaintiffs cannot succeed in a suit for specific performance and are entitled to compensation only. In equity they shall be entitled to proportionate compensation for the quantity of scrap not supplied to them at least at the rate at which they purchased the entire quantity of scrap. Calculating the price at this rate they are entitled to a decree for Rupees 3,70,544 being actual cost of scrap not supplied.
24. For the aforesaid facts and reasons plaintiffs' suit is decreed in the sum of Rs.3,70,544 with costs and interest at 12% from the date of suit.
A.A./M‑107/K Suit decreed.