Zila Council (appeal)

IN THE COURT OF DISTRICT JUDGE, MULTAN.

R.F.A. No. ________________/2000

Zila Council Multan through the Administrator Zila Council, Multan. Appellant/Plaintiff VERSUS 1. Saving Officer, National Saving Centre No. 1, Multan. 2. Joint Director, Department of National Saving Centre, Region Multan. 3. Director General, National Saving Centre, Islamabad. Respondents/Defendants

APPEAL under section 96 C.P.C. against the judgment and decree dated 15.9.2000, passed by the Court of Ch. Rashid Ahmad Civil Judge 1st Class, Multan; through which the learned Civil Judge dismissed the suit of the appellant for the recovery of Rs. 237,500/CLAIM IN APPEAL: -

To accept the appeal, set aside

the impugned judgment and decree and decree the suit of the appellant.

The appellant respectfully sheweth as under: 1.

That the names and addresses of the parties are true and correct for the service of the summons.

2.

That briefly stating the facts of the appeal are that appellant has an account bearing No. 3081-SA with the defendants at National Saving Centre No. 1, Multan. The appellant deposits his cheques, drafts and cash amount with it and receive money as and when required. The appellant deposited cheque No. 0039851 dated 14.1.1991 of the Bank of Punjab amounting to Rs. 999,987.50 through receipt No. 5504 dated 21.1.1991, a cheque No. 651290 dated 6.2.1991 for an amount of amount of Rs. 29,00,000/- through receipt No. 396551 dated 12.2.1991, cheque No. 651291 dated 18.2.1991 in the name of treasury office amounting to Rs. 100,000/through receipt No. 396590 dated 21.2.1991, fro total amount of Rs. 48,99,987.50 with the defendants in the above said account. But the defendants did not get them encashed from the respective banks and treasury office within due time, therefore, the plaintiff has to suffer a loss of Rs. 237,500/-. The plaintiff is entitled to recover the said amount from the defendants. The plaintiff instituted a suit for recovery of amount Rs. 237,500/- against the respondents. After receiving the written statements of the respondent/ defendant, the learned civil judge framed the following issues on 18.9.95. ISSUES: 1.

Whether the plaintiff is entitled to recover Rs. 237,500/- from the defendants as prayed for? OPP

2.

Whether the suit is not maintainable? OPP

3.

Whether the suit is liable to be dismissed in view of preliminary objection No. 2? OPD

4.

Whether the suit is bad for non-joinder of necessary party? OPD

5.

Whether the plaintiff’s counsel has no locus standi and cause of action to file the suit? OPD

6.

Whether the plaintiff’s counsel is estopped by his words and conduct to file this suit? OPD

7.

Whether the suit is time-barred? OPD

8.

Whether the suit of the plaintiff is false, baseless and vexatious and defendants are entitled to get compensatory cost u/s 35-A of C.P.C. OPP

9.

Relief.

After the framing of issues, the appellant got recorded the statement of Muhammad Safdar as PW-1 and submitted his documentary evidence, as his affirmative evidence i.e. Receipt No. PCSA 500326 ExP-1, Cheque No. 0039851 ExP2, Cheque No. 651290 ExP-3, Receipt No. 39655 ExP-4, Cheque No. 651291 ExP-5, Receipt No. 3965 ExP-6, Cheque No. 1315 dated 5.8.91 from Zila Council to Saving Department ExP-7, Letter No. 3 dated 6.1.92 Zila Council to Saving Department ExP-8, Letter no. 366 dated 13.10.91 Saving Centre No. 1 to Chief Account Officer ExP-9, Letter No.

NSCJ-MTNF0-275

dated

25.6.91

ExP-10.

The

respondents/defendants have only got recorded his own statement and has not produced any kind of documentary evidence in their favour. Moreover, the learned court has not given the chance to rebut the evidence produced by the respondents on the issues the burden of proof which was on the defendants. Thereafter the learned court decided the case and dismissed the suit of the appellant/plaintiff vide its judgment and decree dated 15.9.2000. 3.

That the impugned judgment and decree dated 15.9.2000 is illegal, ultra-vires, against law, facts and evidence and as such is not sustainable in law and liable to be set aside inter alia on the following amongst other: -

GROUNDS (i)

That the learned lower court framed 9 issues, out of which onus of proof of issue No. 1 was upon the appellant while the rest of the issues were to be proved by the respondents. On 14.5.96, the appellant produced his affirmative evidence and reserved the right of his rebuttal.

After

recording

the

evidence

of

the

respondents/defendants, the learned court was duty bound to give the appellant chance to produce his evidence

to

rebut

the

evidence

of

the

defendants/respondents produced by them on the issues. But the court did not give the appellant any chance of rebuttal. By not giving right of rebuttal, the learned court has exercised its jurisdiction against law and facts of the case. And as such, the impugned judgment and decree is not sustainable and liable to be set aside on this score alone. Because, the law has given the right to the appellant to rebut the evidence of the defendant and by not giving this right to the appellant/plaintiff,

the

court

has

not

acted

in

accordance with law. The learned court has no power whatsoever to snatch the right of the appellant. (ii)

That the learned lower court has not decide the issue No. 1 in accordance with law. The onus of proof of this issue was on the appellant. The appellant has proved this issue by giving oral as well as documentary evidence.

The

respondents/defendants

have

not

rebutted the same in any manner. The case of the appellant is very simple and totally based on documentary evidence. The court has misread the evidence and relied upon surmise and junctures. He has based his judgment merely on presumptions which is not allowed in law. The

observation of the learned court is against law and rules of justice. So far as banking business is concerned, the dates are most essential. Moreover, if a cheque is produced before the bank and there is an objection, then the bank returns the cheques along-with a slip of objections. The objection slip is very important document. In the case of appellant, the appellant deposited cheque No. 0039851 dated 21.1.91 ExP-1. Cheque No. 651290 dated 6.2.91 ExP-3 through receipt No. 39655 dated 12.2.91 ExP-4 and cheque No. 651291 dated 18.2.91 ExP-5 through receipt No. 39652 dated 21.2.91 ExP-6. It was the duty of the respondents/defendants to present these cheques to the respective bank and treasurer and get it encashed within prescribed time. But the respondent did not do so. They kept these cheques with themselves and presented them after lapse of prescribed period. This thing can be noticed in ExP3. On the back of ExP-3, it is written, “Received 1.6.91”. “Time barred, may be got issued a new one in lieu of it.” Signature 1.6.91. In ExP-10, the respondents have also admitted that they had presented the cheque after due date. These cheques were sent to the District Accounts office, Multan for the needful and to clear these cheques, but cheques in question were received back from the District Accounts office Multan with the objection that the period of 3 months of these cheques has since been expired. The District Accounts officer has also advised to our Department to get fresh cheque, issued from the Zila Council, Multan and then the same will be accepted for further action from their end.” The respondents received cheque from the appellant on 21.1.91, 12.2.91 and 21.2.91 and kept

these with them till 1.6.91 and presented them on 1.6.91 i.e. after the expiry of prescribed period. This is the fault on the part of the respondents and not of the appellant. The respondent/defendant have not rebutted this. To rebut this, the respondents/defendants would have produced the objection slips issued by the bank. Because these are sufficient to refund the appellant’s contention. The defendants/respondents have not produced these slips in evidence, it means that the respondents/defendants have totally failed to prove their contention. But the learned lower court has not appreciated this contention of the appellant. The documentary evidence is more authenticated than that of oral evidence. Moreover, the appellant has produced oral evidence in corroboration of documentary one. Moreover, the ExP-10 is the document which was issued by the respondent and the respondent cannot deny this. Therefore, the document/evidence, which is admitted by the respondents themselves, they cannot resile from this. They are estopped from their own conduct to take other pleas. In this way the appellant has proved this issue. The decision of the court is not based on facts and liable to be set aside. Issue No. 2. That the decision of the lower court on issue No. 2 is also not correct and liable to be set aside. Issue No. 3. That the decision of the learned court on issue No. 3 is not correct. The learned Court has wrongly held that the signatures of the appellant are not available on the plaint. The appellant has put his signatures on the plaint but the learned court has overlooked those signatures.

So far as the signatures on the amended plaint are concerned, signatures of the Chief Officer are on it. The Chief Officer has put his signatures on the amended plaint because he was authorised by the Administration to do so. If chance of rebuttal was given to the appellant, he would have rebutted this contention of the respondents/defendants. Issue No. 4. That the learned lower court has wrongly held that the respondent is a Central Department and it comes under the Administrative control of Central Government. It is an autonomous body and is creation of a statue, therefore, it can be sued without impleading the Central Government as a party. Moreover, the amount is to be recovered from the respondents and not from the Government. Issue No. 5. That the decision of the learned lower court is wrong on issue No. 5. Issue No. 6. That the decision of the learned court on the issue No. 6 is correct. Issue No. 7. That the decision of the learned court on the issue is correct. Issue No. 8. That the decision of the learned court on the issue is correct. Relief: That the decision of the learned court is not correct. It is not based on evidence and facts of the case and is liable to be set aside.

Under these circumstances, it is humbly prayed that the judgment and decree passed by the learned Civil Judge dated 15.9.2000 may very graciously be set aside and the suit of the appellant be decreed with costs throughout. Humble Appellant Dated: __________ Through: Syed Muhammad Afaq Shah, Advocate High Court, 93-District Courts, Multan.

Rao Muhammad Iqbal Khan, Advocate

IN THE COURT OF DISTRICT JUDGE, MULTAN.

R.F.A. No. ________________/2000

Zila Council Multan through the Administrator Zila Council, Multan. Appellant/Plaintiff VERSUS 1.

Saving Officer, National Saving Centre No. 1, Multan.

2.

Joint Director, Department of National Saving Centre, Region Multan.

3.

Director General, National Saving Centre, Islamabad. Respondents/Defendants

APPEAL under section 96 C.P.C. against the judgment and decree dated 15.9.2000, passed by the Court of Ch. Rashid Ahmad Civil Judge 1st Class, Multan; through which the learned Civil Judge dismissed the suit of the appellant for the recovery of Rs. 237,500/-

Humble Appellant Dated: __________ (Administrator Zila Council, Multan)

Through: Syed Muhammad Afaq Shah, Advocate High Court, 93-District Courts, Multan.

Rao Muhammad Iqbal Khan, Advocate