ORDER SHEET
IN
THE HIGH COURT OF SINDH, BENCH AT SUKKUR
II-Appeal No. S- 06 of 2006
|
Date
of hearing |
Order with signature
of Judge. |
Hearing
of Cases
1.For Non-Prosecution of
CMA 66/07
2.For Non-Prosecution of
CMA 424/13
3.For hearing of case.
4.For hearing of CMA
690/2015
Date of Hearing: 06-09-2021
Date of judgment: 06-09-2021
Mr. Ahmed Ali Shahani, Assistant
A.G-Sindh for the Appellants.
Mr.
Mukesh Kumar G.Karara Advocate for Respondent.
J
U D G M E N T
Muhammad Junaid
Ghaffar J.,
This 2nd
Appeal has been filed against the judgment dated 01.04.2006, passed by
Additional District Judge, Gambat in Civil Appeal No.31 of 2003, through which
the judgment of the trial Court dated 27.03.2003, passed by Senior Civil Judge,
Gambat in F.C. Suit No.24 of 2000, through which the Suit was decreed in favour
of the Respondent, has been maintained. Initially the Appellant had filed a
Civil Revision No.74 of 2006 and vide order dated 21.11.2006 it was permitted
that a 2nd Appeal be filed, whereas, the limitation, if any, was
also condoned.
2. Learned AAG has contended that the Suit by
itself was not maintainable as the Province of Sindh was not joined as a defendant;
that the Suit was barred in limitation; that the Respondent had manipulated and
interpolated receipts and bills on the basis of which recovery suit was filed;
that an enquiry was conducted by the Assistant Commissioner and thereafter
criminal proceedings were also initiated; that the Courts below have failed to
appreciate the evidence, whereas, it is the responsibility of the Courts to
decide the legal as well as factual aspects of the case even though they may
not have been pleaded; hence according to him, judgments passed by the Courts
below are liable to be set-aside. In support of his contention, he has relied
upon the cases reported as Mehar and others v. P.O. Sindh and others (2020 MLD 371), Government of Balochistan
v. Nawabzada Mir Tariq Hussain Khan Magsi and others (2010 SCMR 115), Government of N.W.F.P v. Akbar Shah
and others (2010 SCMR 1408), Abdul
Rashid v. Director-General Post Offices, Islamabad and others (2009 SCMR 1435), and Mst.
Maqbool Begum etc. v. Gullan and others (PLD
1982 SC 46).
3. On the other hand, Respondent’s Counsel submits
that nothing has been brought on record through evidence as to the allegation
of interpolation of receipts; that criminal proceedings ended in favour of the Respondent
by way of honourable acquittal; that no material has been brought on record to
substantiate the allegations; that the trial Court as well as Appellate Court
have passed well-reasoned judgments; that the Suit was maintainable as Province
of Sindh was properly joined through concerned Collector in terms of Section 80(2)
CPC; that the Suit was also within limitation as it was filed after acquittal
in the criminal case; hence, no case is made out, whereas, admitted liability
is still outstanding and the Respondent is running from pillar to post for recovery
of the same.
4. I have heard learned AAG-Sindh as well as Respondent’s
Counsel and perused the record. It appears that the Respondent was engaged by
the Appellants through concerned Deputy Commissioner for supply and sale of
fuel to the Rangers posted in the Province and was given direction and
permission to supply such fuel. To that effect there appears to be no dispute. It
further appears that in the written statement as well as in his deposition by the
Appellants witness, it has been admitted that an amount of Rs. 854,380/ was
though payable; but the Respondent had claimed excess amount. It further
appears that entire case of the Appellants is based on the allegation that the
bills amounting to Rs. 449,927/- were forged, interpolated and manipulated. This,
according to the Appellants, had come on surface through an enquiry conducted
by the concerned Assistant Commissioner; after which FIR was registered; however,
it is also an admitted position that the Respondent was honourably acquitted by
the trial Court after recording evidence and such order has attained finality
and was never challenged any further. Though it is settled law that any finding
in a criminal case must not necessarily be binding in a civil case; however, in
this case through written statement as well as evidence, Appellants department
has failed to bring on record any such material which could establish
allegation of manipulation, interpolation or forgery. Except this allegation
and the registration of a criminal case, which they had lost, there is nothing
available on record to substantiate this allegation. In fact, in the evidence the
only witness brought forward by them has admitted that “I cannot say in which bill
produced in this Court has been interpolated”. He has again
responded that “All that I am saying that the bills are not outstanding against us, I
am saying at my own without verifying the record or without going through the
record which is lying in the DC Office Khairpur”. He
further says that “I cannot say as I have no personal knowledge that the plaintiff has
interpolation and have sent letter to the DC Khairpur about the payment of
outstanding amount”. After going through this piece of evidence, which
is the only piece of evidence led by the Appellants, I do not see as to how
allegation regarding interpolation can be sustained. Nothing prevented the Appellants
from bringing on record such facts before the Court and establish
the same.
5. Insofar as the objection regarding very
maintainability of the Suit is concerned, it has come on record that no such
objections were raised in the written statement; however, notwithstanding, record
reflects that Province of Sindh was properly joined as party and to that extent
objection is misconceived. Second objection of limitation was also never taken
before the Courts below and it is only in this 2nd Appeal that such
an objection has been raised again. This is also not sustainable in view of the
fact that firstly, it is not denied that there was outstanding amount which
stands admitted; secondly, criminal proceedings were pending and they were in
respect of the allegation that the bills were interpolated; hence till judgment
was announced; Respondent could not have sought recovery of the said amount. Hence,
delay if any, also warranted to be condoned, if any objection had been raised
before the Courts below. In view of this fact, I do not see as to how this
objection can be taken by the Appellants.
6. Accordingly, though this second Appeal
does not merit any consideration and is liable to be dismissed; however, before
it is so dismissed, it has come to the notice of this Court that the trial Court
while decreeing the Suit has granted interest at the rate of 12% per annum on
the outstanding amount. This does not seem to be proper and lawful as no basis
has been provided for awarding such rate of interest. In such matters it is the
State Bank of Pakistan, which on quarterly or yearly basis, notifies the rates
of interest for lending and investment. Moreover, in terms of Order XXXVII CPC
read with sections 79 and 80 of the Negotiable Instrument Act, 1881, rate of
interest and profit has also been prescribed. It appears that as per orders of
this Court passed on 16.10.2017 and 11.12.2017 an amount of Rs.22,10,302/- has been deposited with this Court which stands
invested in Defence Saving Certificates.
7. Therefore, judgment of the Trial Court requires
modification to that extent. The Respondent in addition to the principal /
decretal amount of Rs.14,24,695/- would only be entitled for profit / interest
at the rate of 6% per anumm (not on compound
basis) from the date of
filing of Suit till the date when the amount is actually paid. The Additional
Registrar and Accountant of this Court shall carry out this exercise with the
assistance of the Applicant and Respondent and shall pay the same accordingly. The
rest of the amount, if any, including profit so earned on the amount deposited shall
be refunded to the Applicant.
8. With these observations, and modification,
this 2nd Appeal stands dismissed.
JUDGE
Ahmad