ASGHAR AL1 Versus ASGHAR ALI

This revision is directed against the Judgment/decree dated 21‑7‑1982 passed by the learned VIIIth Additional District Judge, Karachi, in Civil Appeal No. 1S‑t of 1982 reversing the Judgment and decree dated I1‑3‑1982 passed by the learned XXXI Civil Judge IInd Class, Karachi, whereby he decreed the suit of the respondent for possession of rubber milling machine, hereinafter referred to as the machine, and damages.

2. The brief facts leading to the tiling of the above revision are that the present applicant filed the aforesaid suit for recovery of machine or Rs. 20,500 plus damages at Rs. 100 per day from 23‑9‑1979 till the realization. It seems that alongwith the plaint, the applicant filed an application under Order 38, Rule 5, C.P.C. for attachment of the machine before Judgment. The respondent filed counter‑affidavit to the above application. The above counter‑affidavit was treated as a written statement though it contained the replies of 6 paras of affidavit in support of the above attachment application and not the replies of 12 paras contained in the plaint. Be that as it may, the learned trial Court framed 6 issues. After recording the evidence and hearing of the parties the learned trial Court passed the decree. The respondent being aggrieved by the above judgment/decree filed the aforesaid Civil Appeal, which was allowed by the aforesaid judgment and decree. The applicant being aggrieved by the above appellate Judgment/decree has filed the present revision.

3. I have heard the learned counsel for the parties. It appears that the case of the applicant in the plaint was that he had purchased the machine for Rs. 12,000 on 25‑7‑1978 from M/s. Khalid Rubber and Engineering Works, Napier Road, Karachi and entrusted the machine to the respondent as `Amanat' against a receipt, whereas the case of the respondent was that the machine was part of the partnership assets, in which the applicant and the respondent were partners and upon dissolution of the partnership, he purchased the same for Rs. 32,000. It further seems that the learned trial Court on the basis of a photostat copy of the alleged receipt for entrustment by the applicant to the respondent as `Amanat' decreed the suit, whereas the learned Appellate Court reversed the above trial Court judgment and decree on the ground that the original of the receipt was not produced by the applicant. However; it has been submitted by Mr. Abdul Sattar Pingar, learned counsel for the applicant, that since no objection was taken at the trial, the learned Appellate Court was not justified in non‑suiting the applicant on the above ground.

4. In my view, it will be just and proper to remand the case to the learned trial Court with the direction to allow the respondent to file a proper written statement with reference to the contents of the plaint and thereafter to frame the issues and to record the evidence. The parties shall be at liberty to produce further ocular and documentary evidence including the original of the above receipt.

The petition is, therefore, allowed and the two judgments/decrees of the two Courts below are set aside and the case is remanded to the trial Court with the direction to dispose of the suit within a period of 6 months. However, there will be no order as to costs.

H.B.T./A‑382/K

Case remanded.