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Petitioner: CHILYA CORRUGATED BOARD MILLS LIMITEDS VS Respondent: M. ISMAIL anothers
Court Name: Sindh High Court Judge(s): Wajihuddin Ahmed Title: CHILYA CORRUGATED BOARD MILLS LIMITEDS vs M. ISMAIL anothers Case No.: Suit No, 218 of 1974 Date of Judgment:1992-05-21 Reported As: 1992 CLC 2524 Result: Suit partly decreed
JUDGMENT
JUDGMENT ' Plaintiffs in this suit claim a total sum of Rs,4,99,641.97 from the defendants by way of refund of the advance of Rs,1,40,000 in the context of an agreement to supply wheat straw by the defendants, damages for breach of contract and interest. Shortly, it is urged that the plaintiffs are engaged in the manufacture of Corrugated Board and being a public limited company their present name has been assumed in substitution of the previous one viz. Dada Corrugated Board and Paper Mills Limited and such comes about with the permission of the Government of Sindh w,e,f. 18-10-1973. A photostat copy of the permission has been attached with the plaint. The plaint recites that a contract was concluded between the plaintiffs and the defendants (defendant No,1 acting for the defendant No,2), on 9-3-1972 for the supply of 100,000 maunds of wheat straw at the rate of Rs,3.75 per maund by the defendants to the plaintiffs, deliveries commencing on 1-6-1972 with an option to the plaintiffs to lift an additional quantity of 50,000 maunds. A sum of Rs,90,000 was paid by the plaintiffs to the defendants in advance. Supplies worth Rs,630 were made on or about 28-5-1972 i,e. Before the commencing date of 1-6-1972. However, on 2-8-1972 the agreement of 9-3-1972 was novated for similar supplies but the rate was enhanced to Rs,4.75 per ton and deliveries were to commence from March/April, 1973. Advance amount of Rs,90,000 was also duly adjusted. Subsequently a further sum of Rs,50,000 was paid to the defendants in consideration whereof the defendants allegedly agreed to commence delivery on or after 21-5-1973 and to complete the same by 31-7-1973. An addendum to such effect was inserted at the bottom of the subsequent agreement dated 2-8-1972 aforesaid. It is next pleaded that on 15-5-1973 a meeting was held between the parties when "it was discussed and agreed that the supply of wheat straw may be postponed till December, 1973 on account of the delay in the erection of the plaintiffs' factory".
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However, it is maintained that the defendants, through their letter dated 25-5-1973, came out with the plea that they had not agreed to the postponement of the delivery whereupon the plaintiffs, per their letters dated 4-6-1973 and 12-6-1973, proposed to discuss the programme for lifting the deliveries. The defendants, failing to respond, through letter dated 14-6-1973 were required by the plaintiffs "to start the deliveries of the contracted quantity of wheat straw immediately". Ultimately the defendants having totally failed, legal notice was addressed and the present suit was filed. ' The defendants in their written statement have denied the allegations of the plaintiffs except in so far as the same are expressly admitted. They say that it were the plaintiffs who never placed themselves in a position to lift the contracted deliverid, their factory having taken more time in being put up than originally anticipated and that the plaintiffs themselves were in breach, resulting in heavy losses to the defendants. While no counter-claim had been lodged forfeiture of the advance made has been claimed and the suit is urged as liable to dismissal. On the pleadings of the parties the following issues were framed:-- "(1) Whether the defendants were ready and willing to perform their part of the contract dated 2-8- 1972? (2) Whether the amount of Rs,90,000 was paid by the plaintiffs to the defendants in three instalments on 9-3-1972 and on 3-6-1972 and on 23-6-1972 to keep the contract dated 9-3-1972 alive? . (3) Whether numerous truck loads of wheat straw, except one truck carrying 168 maunds and 24 seers of wheat straw, sent by the defendants to the plaintiffs in pursuance of the contract dated 9- 3-1972 were returned by the plaintiffs who were not inclined to honour their commitment of purchasing the wheat straw? (4) Whether the plaintiffs were not willing to take deliveries of the wheat straw even after the execution of the contract dated 2-8-1972? (5) Whether it was agreed between the parties on 15-5-1973 in a meeting that supply of wheat straw be postponed till December, 1973 on account of delay in erection of plaintiffs' factory? (6) Whether the defendants failed and neglected to tender the delivery of the contracted goods to the plaintiffs? (7) What should the decree be?" ' In evidence only plaintiffs have examined one witness, the defendants failing to lead any evidence and their side having been closed. Even so, the learned counsel for the defendants maintains that the plaintiffs must succeed on their own evidence and cannot take advantage of lack or absence of evidence from the side of the defendants. There is no denying the legal proposition that in order to succeed a claimant before a Court of law has to independently establish hip rights and cannot succeed in obtaining a decree solely on the basis of the weaknesses, lacunas or even total absence in or of the defence. Issues Nos. 1 to 6: ' I have minutely gone through the evidence led in the suit from the side of the plaintiffs, inclusive of the documents relied upon by or confronted to their solitary witness. It is manifestly clear that the agreement dated 9-3-1972 was substituted through that dated 2-8-1972 largely because the plaintiffs' factory had not been erected within the expected period of time. However, not everything turns on that and what has to be seen is as to who was in breach of the novated agreement dated 2-8-1972 and what is the effect there of. ' In the above context, first of all, it is to be observed that the contraints on the part of the plaintiffs regarding the acceptance of deliveries are implicit in the novated arrangement. Thus it is categorically brought out in the Agreement dated 2-8-1972 (Exh. 14) that the deliveries shall "commence from March/April, 1973 and under no circumstances will the buyers lift delivery prior to that date. The sellers will not deliver more than 20 (Twenty) truckloads per day". The contractual
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price itself was enhanced to the tune of Re.1 per maund from Rs,3.75 to Rs,4.75. This itself underwent revision on 11-4-1973, when an addendum of that date was inserted at the bottom of the novated contract dated 2-84972 the insertion admittedly being "in consideration of a further amount of Rs,50,000 towards the purchase price" the defendants correspondingly agreeing "to commence deliveries on or after 21-5-1973 and to complete (it) by 31-7-1973" (para. 7 of the plaint). Still, the sellers were not to "supply more than 20" (twenty) truck-loads of wheat straw per day" (Addendum). This was in the background of defendants' letter dated 7-3-1973 (Exh.16/1), produced by the plaintiffs themselves, wherein the defendants, recounting that deliveries could not be lifted by the plaintiffs in the preceding year due to the plaintiffs not going into production, expressed satisfaction that the plaintiffs had then agreed to accept deliveries and requested for purchase order and authority letter so that supplies could start in the first week of April, 1973. Copy of this letter (Exh.25) when confronted to plaintiffs' solitary witness in cross-examination has, however, surprisingly been denied receipt of and was admitted only subject to objection. Next, it is to be seen that the plaintiffs on 10-5-1973 wrote a letter (Exh.16/2) to the defendant No,2 requiring them to see Ali Muhammad Dada, the Chairman of the plaintiffs on 12-5-1973. Then on 16-5-1973 the plaintiffs wrote a letter of that date (Exh.26) to the defendants contents of which are as under:-- "This has reference to the discussions held between us at factory-site on the 15th instant, when our production schedule was also discussed and it was agreed that due to delay in the erection of the plant and equipment of our project, the supply of wheat straw as per our contract dated August 2 1972 may be postponed till December, 1973. We would also advise you to please see the undersigned at our office at Sattar Chambers, on any working day during office hours, for further discussion on the subject." (The underlining is added here). ' On 22-5-1973 the plaintiffs requested the defendants (Exh.16/3) to acknowledge receipt of such letter dated 16-5-1973. Through letter dated 25-5-1973 (Exh.16/4) the defendants maintained that the suggestion to postpone the delivery schedule till December, 1973 had emanated from the plaintiffs for "the reason of delay in erection of plant." It was also said that the plaintiffs had failed to take delivery on 21-5-1973 involving losses to the defendants because of the rainy season, advances made to Zamindars and truck owners. A reply was solicited from the plaintiffs. Per letter dated 4-61973 (Exh.16/5) defendants' letter dated 25-5-1973 was acknowledged and a visit, on 6- 6-1973 at the plaintiffs' office was solicited "to discuss the programme for lifting deliveries." On 12-6- 1973, with reference to letter dated 4-6-1973, request for a call, on any working day, at the plaintiffs' office was repeated (Exh.16/6). Apparently, without awaiting for a reply to the letter dated 12-6-1973 (Exh.16/6), the plaintiffs suddenly, on 14-6-1973 (Exh.16/7) asked the defendants "to please start sending the deliveries of the quantity as per agreement, immediately, failing which we will not be responsible for any loss to be sustained by you, which please note" (underlining added). Through letter dated 26-6-1973 (Exh.16/8) the plaintiffs regretted that the defendants had "failed to provide the schedule of supply of quantities contradicted" and threatened that they would, "arrange for the quantity for our trial run purpose on monthly basis from any other alternative source in open market and you shall be liable for the financial losses on account of a difference between the market rate as may be prevailing on the date of purchase and the contracted price". In the meantime, on 26-6-1973, the defendants also addressed a letter of their own (Exh. 16/9) saying that the plaintiffs' letter dated 14-6-1973. Had reached them only on 21-6-1973. The defendants recounted the various factors which, according to them, involved defaults and breaches on the part of the plaintiffs, urging that at least six to eight weeks were required to martial the actual work of supply, that the advances made to them had been forfeited, that the plaintiffs had failed to accept supplies from 21-5-1973, that the defendants' overtures in attempting to call at the plaintiffs' office in response to letters dated 4-6-1973 and 12-6-1973 had failed because of, on both the
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occasions, the defendant No,1 being told by one Mr. Liaroon that Ahmed Seth was not available, that the defendants were only a laison between the plaintiffs and the growers and that, on account of breaches, the defendants had suffered a loss of Rs,3,15,00() details whereof were given in such letter itself. On 2-7-1973 (Exh. 16/10) the defendants, on receipt, repudiated the contents of plaintiffs' letter dated 26-6-1973 (Exh. 16/8) saying that they had already lodged their claim on the plaintiffs per their letter dated 26-6-1973 (Exh. 16/9). On 9-7-1973 (Exh.17) the plaintiffs repudiated the allegations in defendants letter dated 26-6-1973 (Exh. 16/8) and, inter alia, maintained that the defendants had suffered no losses and on the contrary were holding a sum of Rs,1,40,000 from the side of the plaintiffs. Demand was made to commence the supply of the contracted goods failing which the defendants would be liable in damages. The defendants responded through their own letter dated 13-7-1973 (Exh. 18), reiterated their claim of Rs,3,15,000 and re-capitulated that the plaintiffs had even refused to accept their proposal, apparently extended in the meantime, to go to arbitration or even to accept the intervention of their own Chairman, All Muhammad Dada. The matters seem to have tarried here when legal notice dated 10-12-1971 (Exh.19) was addressed by the plaintiffs' counsel to the defendants requiring that the supply of the contracted goods be started within seven days failing which it was said that the plaintiffs would be constrained to purchase the contracted goods at the defendants' risk as to costs and consequnces making the defendants liable in damages together with refund of the amount of Rs,1,40,000. The defendants responded on 17-12-1973 (Exh. 20) denying all the allegations and once again offering mediation through the abovesaid All Muhammad Dada or even arbitration. This was followed by another legal notice dated 16-1-1974 (Copy .Exh. 21) from the side of the . Plaintiffs (no postal receipt . Produced in spite of challenge in cross-examination) wherein claim of damages was raised on the basis of an alleged market price prevalent on 26-6-1973 at the rate of Rs,7 per maund and resulting in damages in the sum of Rs,2,25,000 on a supply of 100,000 maunds of wheat straw and Rs,1,12,500 for additional (and optional) 50,000 such maunds together with refund of advance of Rs,1,40,000 bringing the total to 4,77,500. To this figure, of course, in the suit interest also has been added in bringing of the total claim of Rs,4,99,641.97. ' Now, plaintiffs' witness has admitted that their factory was re-erected after a year's delay and came into operation only in the beginning of 1974 though he has repudiated that the plaintiffs were in no position to take deliveries as stipulated. He has produced no Power of Attorney nor has he shown himself to be in the know of facts on his own. By designation he is manager at the plaintiffs' factory. The witness states that all agreements in suit were concluded with the preyious management running the Company in a different name. This makes no difference, at law, because the plaintiffs, as a legal entity, have remained the same. He has denied that performance was extended till the end of December, 1973 though in the legal notice dated 10-12-1973 (Exh. 19) the defendants were finally called upon to start deliveries within 7 days of receipt and earlier on in plaintiffs' own letter dated 16-5-1973 (Exh. 26) it was stipulated as agreed that the supply may be postponed till 'December, 1973. Prevailing market rate of the contracted goods is also not disclosed in the testimony though such rate Rs,7 per maund in the final notice dated 16-1-1974. (Copy Exh.21) has been claimed as on 26-6-1973, the witness himself remaining totally silent on that score. On this state of the record it is to be examined as to what is the effect of the oral as well as the documentary evidence in the case, some of the material documentary evidence consisting of copies, not objected to at the time of their being exhibited and the remaining not being adduced through scribes or authors or not being proved as regards contents in any specific details. Qanun-e-Shahadat, 1984, is a Code complete in itself as to the mode of proof of facts by way of oral and documentary evidence. Oral evidence has to be of those who have themselves witnessed facts (inclusive of events, state of things and condition of mind etc.) if such were capable of being seen, heard them if susceptiblc.To hearing or perceived them otherwise if the facts could be so
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perceived through the senses or have subscribed to or participated in relation the same. Hearsay is no evidence. Documents are to be proved through their authors or scribes or witnesses in whose presence such were written or signed or as are acquainted with the writing or signatures of the author or through expert evidence or by comparison of signatures or upon admission etc. Therefore, production of documents through authors or scribes, albeit being the best, is only one of the methods of proof though it is always expected that best evidence in a case would be produced, failure giving rise, where relevant, to adverse inferences. A very useful discourse on the point is to be found in the judgment of Muhammad Afzal Lone, J., in Agro Marketing Corporation Ltd. v. Pakistan, PLD 1982 Lah. 20. At the same time, objections as to admissibility of documents are to be raised at the earliest and usually at the time such are exhibited and admitted in evidence. Failure to timely object or at the earliest opportunity therefore, may foreclose such objections at a later stage of the proceedings. The rule is based on common sense and good policy. A prompt objection puts the adversary on due notice and does not result in denial of opportunity to the opposite number to satisfy the requirements of proof. A document admitted in evidence without objection and exhibited in terms of Order XIII, rule 4 is a proved document and its admissibility cannot, except for good reason, be questioned at a later stage. There is a good deal of case-law on the subject but for the present only the following may be noted:-- (i) Gopal Das v. Shri Thakurji, AIR 1943 Privy Council 83. (ii) Shahzadi Begum v. Secretary of State, 34 I.A. 194. (iii) L. Suraj Bhan v. Hafiz Abdul Khaliq, AIR 1944 Lah.l. (iv) Muhammad Yusaf v. Hafiz Abdul Khaliq, AIR 1944 Lah. 9. (v) Abdullah v. Abdul Karim, PLD 1968 SC 140. (vi) Malik Din v. Muhammad Aslam, PLD 1969 SC 136. (vii) Muhammad Hussain v. Ghulam Ali, PLD 1977 Kar. 285. (viii) Karachi Municipal Corporation v. Ali Hussain, 1982 CLC 93. However, objection to admissibility of a document even though not expressly taken does not necessarily constitute admission either in totality or as to contents. Such an objection may be inherent in a situation where relevant facts have been denied in the pleadings and are in issue (See Abdul Razzaq v. Fatima Bai 1981 CLC 1083) or authorship not being disputed contents alone are questioned (Refer Madholal Sindhu v. Asian Assurance Co. Ltd. AIR 1954 Born. 305). Likewise, where a document is admitted, merely dispensing with formal proof and exhibited, the party admitting does not thereby ipso facto accept the truth of the contents and would be free to question the same by way of cross-examination or otherwise, which would not be within its entitlement if the document is admitted and marked on admission, without reservation, resulting in the contents not only being evidence but also taken to be admitted (Lionel Edwards Ltd. v. State AIR 1967 Cal. 191). A document admitted in evidence, such as a letter written by a witness, is no evidence of the facts therein stated and the only legitimate use to which the letter can be put would be to use it in cross-examination for the purpose of discrediting the witness, if what he had stated was inconsistent with his evidence. Similar is the position of contents of a telegram which per se are not evidence of the facts stated therein. Judah v. Isolyne Shrojbashini Bose AIR 1945 Privy Council 174). There is a distinction also between proof of a document, upon its being exhibited, and its authorship. Where the document is admitted subject to objection the position is self-evident (Fore-most Trading Company v. Caledonian I.C. Limited, PLD 1988 Kar. 131). Likewise, merely because a document has been admitted in evidence and exhibited such fact alone, whereupon
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the record source of the document is disputed, would not constitute proof of its execution by the purported executant. (Sec Kishwardas v. Deputy Settlement Commissioner, Mirpur Khas 1985 CLC 1385). In Bengal Friends & Company v. Gour Benode Saha & Company PLD 1969 SC 477, regarding authenticity of account books, accepted in evidence, and their effect this is what the Supreme Court had to say:- "In the affidavit of the respondent sworn on the 25th August 1958, in paragraph the genuineness of the record, Exhibits G.B 1 to G.B.10, is affirmed, but this bald statement did not constitute proof of the entries in these series unless they were in his handwriting and he swore to the correctness of the transactions mentioned therein." ' In Muhammad Yousuf Khan Khattak v. S.M. Ayub PLD 1973 SC 160, Hamoodur Rehman, C.J. Said:-- "There is no dispute as to the principles enunciated in these cases; but the learned counsel for the respondent contthids that, where nobody disputes the signature or the writing in the document nor raises any objection to the admissibility of the document into evidence, no question of proof arises, one is called upon to prove only those facts on which issue is joined." ' Dissenting, Sajjad Ahmad, J., observed:-- "I am of the view that even if such documents are brought on record and exhibited without objection, they remain on the record as "exhibits" and faithful copies of the contents of the original but they cannot be treated as evidence of the original having been signed and written by the persons who purport to have written or signed them unless the writing or the signature of that person is proved in terms of the mandatory provisions of section 67 of the Evidence Act. If instead of the copy Exh. P-1, the original form "E" which formed the primary evidence, had been exhibited on the record without proving as to who was its author can it be argued that by merely exhibiting it, the document should be taken for granted as bearing the signatures of the appellant without proof that in fact it was written and signed by him. The onus obviously lay on the respondent to prove this fact and his failure to prove it did not cast any responsibility on the appellant to negatively disprove it." ' Anwarul Haq, J., however, decided that case on facts, finding that objection to the document was actually though subsequently taken and even in the attested copy signatures of the appellant were spoken of as "over-written". The learned Judge then concluded: "In these circumstances, it was obviously necessary for the Election Tribunal to have the signatures and the handwriting of the appellant proved in accordance with the mandatory provisions of section 67 of the Evidence Act but this was not done. The onus of proving this document lay on the respondent, and the fact that the appellant or his counsel did not take any specific objection at the time of the production of this document does not mean that the same stands duly proved in view of the patent overwriting existing in the original and noted in the attested copy." ' Such judgment was followed by a Division Bench headed by Dorab Patel, J. In this Court in Deutsche Dampschiff Faharts-Gessellschaft v. Central Insurance Co. Limited PLD 1975 Kar. 819, where the Bench found documentary evidence in admissible when produced through a witness, admittedly, having nothing to do with the entries sought to be proved through him. Fakhruddin G. Ebrahim, J. In Muhammad Hussain v. Ghulam All PLD 1977 Kar. 285, however, distinguished the view in Re Muhammad Yousaf, observing that the case did not relate to the mode of admissibility of the document but, as to proof of signatures under section 67 of the Evidence Act. A learned Single Judge of the Lahore High Court in Mst. Mehari v. Noor Bhari PLD 1978 Lah. 771, distinguished the case of Muhamamd Yousuf as majority view only and preferred to follow Abdullah v. Abdul Karim PLD 1968 SC 140. The Supreme Court itself in Ghulam Muhammad v. U.S. (AID) 1986 SCMR 907, termed the case of Muhammad Yousuf exceptional, "in which the authenticity of the document itself was doubted" and no such suspicion in the matter before them existing found that case distinguishable. In a more recent enunciation viz. Muhamamd Aslam v. Gulraj Begum 1989 SCMR 1,
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the Supreme Court Bench, consisting of five Judges, referring to bulk of the above case-law, opined that mode of proof of a document being a question of procedure was capable of being waived and where objection as to manner of proof was not taken at the time the same was 'sought to be proved in the trial Court and such was freely referred to, objection was not open subsequently in appeal. Thus it can safely be concluded that a document, on being exhibited without contest, is a proved document for all purposes but that is so only when authorship is not in question in the case or is impliedly or expressly proved and the contents, not otherwise in dispute, .Prove themselves e.g. In a receipt or deed of sale etc. At the same time, proof of a document is not the equivalent of its relevancy; the two are independent concepts. Likewise, admissibility of a document in evidence is not synonymous with its evidential value or vice versa. See Agro Marketing Corporation Ltd. v. Pakistan ibid. ' It is on the basis of the foregoing formulations that the documentary evidence in the suit is to he assessed. In so far as the contract itself and the payments made in relation to it, as evidenced by separate receipts, are concerned none at any stage has denied the same and such have been exhibited and admitted in…
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