HAMAYOON SHAH Versus RAHIMDAD
ORDER
MUHAMMAD ALAM, J.--- This is a civil first appeal against the judgment/decree dated 19/11/2014 of the Civil Judge 1st Class, Gilgit that the said passed in Civil Suit No. 32/2008. Through impugned order learned trial Court passed a decree of Rs. 4,88,000/- (Rupees four lac eighty eight thousands only). The learned trial Court passed impugned order in favour of respondent/defendant after endorsing plea of respondents of set off.
2. Appellants filed the suit praying for rendition of accounts. According to the averments of the plaint, appellants gave Rs. 200,000/- to the respondent for doing business through the said amount. After giving the said amount to the respondent/defendant, appellant periodically visited the respondent and obtained back some of the said amounts and as to outstanding amounts out of the said amount, a rendition is needed. On the other hand respondent contested the suit through his written statement and pleaded the set off of Rs. 500,000/- with profit at the rate of 30% from 12/09/2005 till realization of the said amount. Learned trial Court framed following issues in connection with trial proceedings of the case:-
After framing the above issues, learned trial Court recorded evidence of the parties. Appellant produced 2 PWs as oral evidence in proof and rebuttal of the issues. Respondent/defendant produced 4 PWs as oral evidence in proof and rebuttal of the issues, besides filing ExD/1 as documentary evidence. Learned trial Court relied on the evidence of the respondent and passed the impugned order/decree. Feeling aggrieved from the same appellant has filed the appeal in hand.
3. I have heard learned counsel for parties and have gone through the file. I have also perused evidence of the parties. In the case in hand it is in the averments of plaint that respondent gave Rs. 200,000/- to the appellant for doing business. It is also not disputed that respondent obtained part of, said amount back in the shape of different articles at different times from the appellant. In my opinion appellant was bound to be very specific regarding payments to the respondent. I am of the opinion that in such common business, appellant was bound to maintain record of receipts and payments and then only could file a suit for rendition of accounts. In money cases, where receipt of amount is admitted or proved through overwhelming evidence, the person receiving the amounts, as appellant in the case in hand, was legally bound to give the details of payments to the respondent, showing any balance or overpayment etc. In the case in hand appellant has just averred that amounts payable to respondent or recoverable from respondent be ascertained through the suit. This kind of rendition is not provided in any law qovernina such kind of business that parties to case did. So, the suit in hand is not only, not maintainable, but is very bad in the eye of law. In my opinion merited rejection at the very inception.
4. Now I am turning to evaluation of evidence of the parties. PW-1 has just stated that, he gave some cloth to the respondent from the store of appellant, but said PW is silent about the price of such cloth. Likewise, PW-2 has stated that, he saw respondent taking cloths from the store of appellant/ plaintiff. In my opinion both the PWs have stated about single event and both the PWs are silent about the price of so delivered cloths. So, the trial Court has rightly not relied on the statements of said two PWs. On the other hand, respondent has filed Ex.D/1 as documentary evidence. I have gone through the said document, which clearly shows that respondent paid Rs. 500,000/- to the appellant. In my opinion appellant is using all delaying tactics just to prolong the payment of the suit amount.
5. I, therefore, hold that, the learned trial Court has rightly decreed the suit. I uphold the decree to the tune of decreed amount, but with modification that respondent is entitled to receive the profit at the rate prayed in the set off from 12/09/2005 till satisfaction of the decree. Appeal dismissed. Appellant to bear costs. File.
MQ/55/GB Appeal dismissed.