KARIM KAROBAR through Sheikh Arshad Mahmood Versus JAVED ALI
ORDER
SADIQ HUSSAIN BHATTI, J.--- The Applicant is aggrieved by the judgment and decree dated 29.10.2010 passed by VII-Additional District Judge, Karachi (South) in Civil Appeal No. 148 of 2010, whereby the appeal was allowed and the judgment dated 31.3.2010 passed by 1st Senior Civil Judge, Karachi (South) in Suit No.241 of 2007 filed by the Plaintiff, Applicant herein, was modified.
2. Facts of the case are that the Applicant filed Suit No.241 of 2007 against the Respondent No.1 for recovery of Rs.540,000/-. The suit was decreed in favour of the Applicant/Plaintiff vide judgment dated 31.3.2010. The Respondent No.1 feeling aggrieved assailed the same by filing Civil Appeal No.148 of 2010, which was partly allowed by the learned VII-Additional District Judge, Karachi (South) vide the impugned judgment by decreasing the decretal amount from Rs.540,000/- to Rs.150,000/-, hence the present revision application.
3. Learned counsel for the Applicant submitted that the impugned order is liable to be set aside as the appellate Court has passed the same without considering the prerequisite for deciding the same and without considering the facts of the case. Learned counsel further submitted that on 29.5.2010, directions were given to the Respondent No.1 to deposit the decretal amount, but he failed to comply with the said order. Accordingly, the Appellate Court was not competent to decide the appeal until and unless the said decretal amount was deposited by Respondent No. 1. In this regard he referred to provisions of Order XXI, Rule 23-A, C.P.C. The learned counsel further submitted that an application under section 151 read with Order XXI, Rule 23-A, C.P.C. was filed on behalf of the Respondent No.1 for recalling the said order dated 31.5.2010, whereby on the statement of the Attorney of Respondent No.1 one month's time was granted to him to deposit the decretal amount, however, such application was disposed of vide order dated 18,10.2010, thereafter vide the impugned judgment the decree of the trial Court was modified without any reason, therefore, learned counsel prays that this revision application may be allowed and the judgment may be set aside. In support of his contentions, the learned counsel for the Applicant relied upon the case of Province of the Punjab v. Yaqoob Khan and others [2007 SCMR 554].
4. On the other hand, Mr. Mehmood Abbas, counsel appearing on behalf of Respondent No.1, questioned the maintainability of the instant revision application as according to him the same could only be assailed by filing second appeal under section 100, C.P.C. The learned counsel pointed out that no irregularity has been committed by the Appellate Court justifying interference by this Court. He relied on the cases of Gul Rehman v. Gul Nawaz Khan [2009 SCMR 589] and Muhammad Ali Shah v. Noor Muhammad and others [1987 SCMR 1546].
5. Heard the learned counsel for the parties and perused the record with their assistance.
6. Revision application under section 115, C.P.C. can be filed on any of the following grounds:- a. when a subordinate Court appears to have exercised a jurisdiction not vested in it by law, or b. when a subordinate Court appears to have failed to exercise a jurisdiction so vested, or c. when a subordinate Court appears to have acted in the exercise of its jurisdiction illegally or with material irregularity.
7. A perusal of the judgment of the trial Court reveals that the trial Court while decreeing the suit of the Applican observed as under:-
"The record reflects that the plaintiff's witness during his cross-examination denied to have supplied the goods of inferior quality and produced the bill of the goods at Ex.P/4. A glance at the said bill, it is revealed that 3000 bags of 40 kg were supplied @ Rs.18/- per Kg. for a total sum of Rs.21,60,000/-. On the contrary, the defendant No. 1's attorney during his cross-examination admitted to a suggestion that he has not made any complaint in writing to the plaintiff regarding the sub-standard of the rice supplied. He also admitted to a suggestion that they have challenged the decision of the association in Court through Suit No.662/2006, which was dismissed by the Court."
8. The Appellate Court in the impugned judgment, held as under:-
"More over it has also been admitted position that when appellant approached them and complained about the supply of substandard goods and request for slashing the rate from Rs.18/= to Rs.14.75 per kilogram, and the same was consented by the respondent, thereafter the respondent No.1 had issued a bill Dt.24-03-2006, in sum of Rs.17,70,000/= out of which the appellant has paid a sum of Rs.16,20,0001= and now there remains only Rs.1,50,000/= outstanding against the appellant, as such the burden shifts upon the respondent No.1 to prove that there remains balance of Rs.5,40,000/=."
9. The trial Court has referred to the cross-examination of the Plaintiff's/Applicant's witness and has observed that since the said witness has denied supply of inferior quality goods to the Respondent No.1, while the witness of Respondent No.1 has admitted that no complaint in writing was made to the Applicant regarding substandard supply of goods. However, the Appellate Court as quoted above has stated that "it has also been admitted position that when appellant approached them and complained about the supply of substandard goods and request for slashing the rate from Rs. 18/- to Rs. 14.75/- per kilogram and the same was consented by the respondent." However, there is no such admission on the part of the Appellant. The appellate Court further states in the impugned judgment that "as such the burden shifts upon the respondent No. 1 to prove that there remains balance of Rs.5,40,000/- for which the respondent No.1 has miserably failed." But he has totally ignored the legal position that once it was admitted by the Appellant that substandard goods were supplied by it to Respondent No.1 and it consented to slash the bill, there was no shifting of burden as an admitted fact is not to be proved by evidence.
10. The Appellate Court has also failed to appreciate that vide order dated 29.5.2010, the Respondent No.1 was directed to deposit the decretal amount with the Nazir of that Court and thereafter, a request was made for grant of three months' time to deposit.the same and with the consent of the counsel for the Applicant, one month's time was allowed for the deposit of the decretal amount, but the same was not deposited. In this regard counsel for the Respondent No.1 also filed a statement to the effect that he has informed the Appellant/Respondent No.1 and his attorney to deposit the decretal amount and to discuss on different issues, but nobody has taken serious view. Once the Respondent No.1 was directed to deposit the decretal amount and has asked for time to do so, he cannot back out from his commitment, while the Appellate Court proceeded and passed the impugned judgment by modifying the decree that too on the ground which do not find support from the record.
11. In view of the above, it is patently clear that Appellate Court committed irregularity which resulted in miscarriage of justice. Neither there was any admission on the part of the Appellant about the reduction in the bill nor Respondent No.1 deposited the decretal amount as promised by him.
12. In the case of Province of the Punjab (supra) it has been held that is settled law that it is the duty and obligation of the first Appellate Court to reverse the findings of the trial Court by meeting the reasoning of trial Court. However, from reading of the judgments of two Courts below in juxtaposition it is clear that the first Appellate Court has not performed its duties in accordance with law. The first Appellate Court has also not clarified as to why it proceeded to hear and dispose of the appeal without first insuring that Respondent No.1 has deposited the decretal amount.
13. The learned counsel for the Respondent No.1 has relied on some case law, but the same is not relevant. In the case of Gul Rehman (supra) it has been held that appeal and revision are two different fields, which is not disputed by anyone. However, he has not been able to show that Appellate Court was justified in modifying the decree passed by the trial Court in the suit.
14. The upshot of the above discussion is that present revision application is allowed, the impugned judgment dated 29.10.2010 is set aside and the judgment of the trial Court dated 31.3.2010 is upheld.
ZC/K-1/Sindh Revision allowed.