MANZOOR AHMED Versus GUL MUHAMMAD

This civil revision is directed against the judgment and decree dated 8-6-1989 passed by a learned Additional District Judge, Rahimyarkhan, by which, the appeal of the petitioner was dismissed and the judgment and decree dated 13-3-1989 passed by the learned trial Court in favour of the respondent was upheld.

2. The facts are that a suit for recovery of Rs.7243.50 was filed by the respondent as balance of the cost of construction work done by him for the petitioner. The fact that the respondent did the construction work was admitted by the petitioner. However, it was contended that total cost of work was fixed as Rs.11,000 whereas the work already done by the petitioner before entrusting it to the respondent was of the value of Rs.2344.23. The petitioner also averred that the respondent was also given a Television worth Rs.3450 and a water cooler worth Rs.1,000.

According to the petitioner, an excess amount of Rs.2189 was received by the respondent which he was liable to refund.

3. The evidence of the parties comprises of the statement of the respondent/plaintiff as P.W.1 and the statement of the petitioner as his own witness as D.W.1. No documentary evidence was produced. However, the respondent also supported his case by a statement on special oath. In rebuttal, the petitioner refused to make a statement upon such oath in denial.

4. The learned trial Court vide judgment and decree dated 13-3-1989 decreed the suit of the respondent in the sum of Rs.5,500 with cost.

5. The petitioner filed an appeal which was dismissed vide judgment and decree dated 8-6-1989. While dismissing the appeal, the learned Appellate Court found that the petitioner had admitted that he got his house constructed for the respondent and that he had paid Rs.11,000 to him in this connection. The petitioner further stated to have given a T.V. and water cooler to the respondent in liquidation of the amount due on account of the construction work. It was noticed by the learned Appellate Court that a cheque in the sum of Rs.3,000 was issued by the petitioner to the respondent which was dishonoured. The contention of the petitioner that the cheque was stolen from the Cheque Book was not believed by the learned Appellate Court.

6. In this civil revision the concurrent findings of fact have been challenged on the ground that the petitioner/defendant was not under a legal obligation to deny the claim of the respondent/plaintiff in terms of Article 163 of the Qanun-e-Shahadat Order, 1984. It is contended that no adverse inference would follow from the refusal of the petitioner to deny the claim of a respondent on special oath. It is contended that the findings of both the learned lower Courts to the contrary are without lawful effect.

7. It is true that no adverse presumption can be drawn upon the refusal to administer special oath under Article 163 of the Qanun-e -Shahadat Order, 1984. Nonetheless the learned Appellate Court relied upon the respective evidence produced by the parties and concurred with the findings of the learned trial Court. The learned Appellate Court did not solely rely upon the effect of refusal of the petitioner to take the special oath. The learned Appellate Court was also correct in holding that as the suit was not based on a written contract or any receipt, it was the Civil Court which had the jurisdiction to try the suit.

8. Apart from the contention made above, no other point was urged on behalf of the petitioner. No misreading or non-reading of evidence, was pointed out. Resultantly, this civil revision is without merit and is hereby dismissed. No order as to costs.

H.B.T./M-2035/L Revision dismissed.