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Regular Second Appeal No. 276 of 1982, decided on 22nd January, 1983.

--O. XX, r. 5-Judgment--Contention that first appellate Court erred in law in not considering entire oral and documentary evidence on record and also failed to decide all issues as such grave prejudice caused to appellant-Memorandum of appeal filed before first appellate Court showing that sole grievance of appellant was that trial Court acted illegally in exercise of its discretion in closing evi dence of appellant-Held, appellant cannot be permitted to raise such contention particularly when onus of these issues was an him and he failed to discharge same.-[Bunden of proof].

Muhammad Halim and others v. H. H: Muhammad Naim and others P L D 1969 S C 270 ref.

----O. XVII, r. 3-Evidence, closing of-Contention that appellant could not produce his evidence because record was not in his possession and trial Court ought to have granted adjournment--Appellant granted three opportunities and at no stage caring to file even list of witnesses,-Contention, held, has no force-Appellant cannot be permitted to take advantage of his own wrong.-[Evidence].

--S. 9-Jurisdiction-Mere fact that parties decided to refer case to Authority in case of any dispute, held, would not ipso facto oust jurisdiction of civil Court.-[Jurisdiction].

-----100-Second appeal-Finding -of fact recorded by trial Court after appraisal of evidence on record, held, not open to challenge in second appeal.-[Finding of fact].

Syed Laqa Haider Zaidi for Appellant.

Khizar Abbas for Respondent.

Date of hearing : 22nd January, 1983.

This regular second appeal arises out of the judgment, dated 29-6-1982, of the learned District Judge, Jhang.

2. The facts relevant for the disposal of this appeal are that the plaintiff/respondent instituted a suit against the appellant-defendant for the recovery of Rs. 12,201.67 on account of the work done and for-the material supplied for the re-conditioning and metalling of Circular Road, Jhang Saddar, in 1976. It was averred in the plaint that the plaintiff/respondent was a contractor under the defendant/appellant. His tender was accepted for the aforesaid work. He was issued a work Order No. 63 on 10-11-1976. A written agreement was executed between the parties, Immediately there after, the work was commenced. He was given first running bill of Rs. 20,000 and subsequently, his contract was prematurely cancelled. In these circumstances, the plaintiff/respondent claimed Rs. 12,201.67 from the respondent for the work done as per details in para. 8 of the plaint. The appellant/defendant resisted the suit and filed written state ment in which a number of preliminary objections were also taken. In view of the pleadings of the parties, the learned trial Court framed the following issues :-----

(1) Whether the plaintiff has no cause of action or locus standi

(2) Whether the plaintiff is estopped by his conduct to file the suit

(3) Whether the civil Court has no jurisdiction to entertain this suit

(4) Whether the suit is time-barred

(5) Whether the plaintiff is entitled to the recovery of Rs. 12,201.67

(6) Relief.

The appellant/defendant, however, neither cared to file list of witnesses nor the witnesses were summond by him despite three opportunities provided by the trial Court. The plaintiff/respondent examined Ilahi Bakhsh (P. W. 1), Works Clerk and Rana Allah Ditta. Sub-Engineer of the appellant as P. W. 2 in support of his case. The trial Court, vide judgment, dated 5-12-1981, closed the evidence of the appellant/defendant under Order XVII, rule 3, C. P. C. and decreed the suit. The appellant filed appeal before the learned District Judge and took up the plea that the trial Court erred in closing the evidence, in that, relevant record was in the custody of the Anti-Corruption Department and for this reason application was made for adjournment of the case and for the same reason, .the witnesses were not produced in the Court. The learned District Judge, after re-appraisal of evidence on record, observed that no exception could be taken to the closing of evidence by the trial Court, in that, the appellant was negligent in producing his evidence despite ample opportunities granted to him. On merits, he recorded a finding of fact, after appreciating the statement of P. W. 1 that a sum of Rs. 9,149 was due to the plaintiff/respondent from the appellant/defendant and accordingly decreed the suit with proportionate costs.

3. The learned counsel for the appellant contends that the judgment of the trial Court was violative of the provision of Order XX, rule 5, C.P.C. in that, the trial Court failed to decide the case on merits upon the material already brought on record. The arguments, advanced by the learned counsel for the appellant find support from the ratio laid down in Muhammad Halim and others v. H. H. Muhammad Naim and others (P L D 1969 S C 270). Be that as it may, since the appeal is in continuation of the proceedings in the trial Court and the appellate Court is competent to pass any order which the trial Court should or ought to have passed the question to be examined is this case is as to whether any prejudice has been caused to the appellant on account of the failure of the trial Court to decide the suit on merits. When faced with this situation, the learned counsel for the appellant took up the plea that the learned District Judge erred in law in not considering the entire oral and documentary evidence on record and also failed to decide all the issues arising out of the pleadings of the parties which has caused grave prejudice to the appellant. It is true that no decision has been given either by the trial Court or the appellate Court on issues Nos. 1 to 4. The appellant/defendant is, however, deemed to have abandoned these issues as the same were not pressed before the appellate Court. It may be pointed out that no specific stand has been taken, even in the memorandum of appeal in this Court, that the appellant specifically raised these points before the learned appellate Court and the same were not taken into consideration. The memorandum of appeal filed by the first appellate Court, however, shows that the sole grievance of the appellant before the District Judge was that the trial Court acted illegally in the exercise of it discretion in closing the evidence of the appellant under Order XVII, rule 3, C.P.C. This being so, the appellant cannot be permitted to raise this ques tion particularly, when the onus of these issues was on the appellant and he failed to discharge the same. The plea of the appellant that the evidence could not be produced by him because the record was not in his possession and, therefore, the trial Court ought to have granted the adjournment in the interest of justice, is not sustainable, in that, as rightly observed by the learned District Judge, at no stage the appellant cared to file even the; list of witnesses and, therefore, he cannot be' permitted to take advantage of his own wrong.

4. Learned counsel for the appellant next contended that the finding of the appellate Court on Issue No. 5 is based on non-consideration of the entire evidence on record, in that, the documentary evidence on record was completely ignored and the oral evidence was not properly appreciated. Learned counsel contends that according to Exh. P. 2, in case of dispute between the parties, the decision was to be referred to the Administrator of Municipal Committee whose decision will be final and, therefore, he was estopped by his conduct to file the civil suit: The contention is miscon ceived. Firstly, this point was never urged before the appellate Court and even on merits the mere fact that the parties decided to refer the case to the Administrator in case of any dispute, would not ispo facto oust the jurisdiction of the civil Court. Learned counsel next contends that the Courts below failed to peruse Exhs. P. 5 to P. 7 which show the circumstances under which the final bill of Rs.9,149 was reduced to Rs. 1,133.48. It is submitted that the aforesaid documents' clearly show that the reduction in the final bill was made for cogent reasons, in that, in. the original bill the late as well as the quantity, of stone was erroneously mentioned.

5. I have perused the entire documentary evidence as well as the oral evidence on record with the assistance of the learned counsel for the parties. I do not find any case either of misreading of evidence or non consideration of material evidence on record. The finding of fact has been recorded by the first appellate Court after appraisal of evidence on record that the final bill was unilaterally reduced. This finding is not open to challenge in the second appeal. Learned counsel, however, took up the plea that the appellant specifically stated in para. 3 of the written statement that final bill had already been paid to him. He submitted that this plea is corroborated by the statement made by P. W. 1 in cross-examination, in which he deposed :-------

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Be that as it may, the deposition made by respondent No. 1 in the cross-examination is not to be read in isolation but in conjunction with the examination-in-chief. It is clearly stated in the examination-in-chief that a final bill of Rs. 9,149 was prepared for payment to the plaintiff/ respondent and the same was not paid. Thus visualized, the inference drawn by the appellate Court after appraisal of evidence is based on record and the mere, fact that no specific reference has been made to the documentary evidence, referred to above, would not lead to the conclusion that he failed to apply his mind in considering the entire evidence. N other point has been urged before me.

6. In view of the above, the appeal fails and is hereby dismissed with no order as to costs.

M. A. K. Appeal dismissed.

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