Find a Lawyer

MUHAMMAD ABDUL GHANI--Appellant

Second Civil Appeal No. 34 of 1960, decided on 31st January, 1962.

(a) Civil Procedure Code (V of 1908)--

---S. 100--Contract Act (IX of 1872), S. 2(b)--Second appeal--Finding of fact about contracted obligation--Finding of. First Appellate Court on question of fact, held, was binding upon .High Court in second appeal.

(b) Contract Act (IX of 1872)--

---S. 53--Performance of contract--Concurrent findings of fact by Courts below that plaintiff was willing to perform his part of contract--Plaintiff could not take active part in performing his part of contract due to defendant's own fault--First Appellate Court, held; had erred In applying law of contract by awarding lesser amount than that stipulated by contract--Contractual amount was allowed in - circumstances.

---Art. 26--Local custom--Proof of--Mere statement of interested party, ' held, was not sufficient to establish local custom.--[Custom].

(d) Civil Procedure Code (V of 1908)--

---S. 100--Second appeal--Decree passed by trial Court and confirmed by First Appellate Court varied by High Court in second appeal by allowing contractual amount to plaintiff--Plaintiff also allowed 9/10th of costs throughout.

Appellant in person.

Abdul Khair for Respondent.

Date of hearing: 31st January, 1962.

This is a second appeal against the judgment of the Additional District Judge, Karachi (Mr. Mehdi Ali Siddiqi) dismissing an appeal from the judgment of the First Class Sub-Judge, Karachi (Mr. Moazzam Ali).

The appellant is the plaintiff, art Advocate practising ;n Karachi, who filed a suit for the recovery of Rs.2,000 from the respondent alleging that this was the 'amount which the respondent had agreed to pay Mr. Ghani in return for professional services in conducting a case in the civil Court on behalf of the respondent.

The defence was that the defendant had not agreed to pay Rs.2,.000. The fees for conducting the suit were to be settled by a common friend. Both the lower Courts have found that the defendant agreed to pay Rs.2,000 to the plaintiff as his professional fee for ,q conducting the whole case, and the finding of the Additional District judge is binding upon me in second appeal. The trial Court found against the defendant's contention that the fee was to be settled by a common friend. The trial Court came to the following conclusion:

"As already mentioned the plaintiff was to get Rs.2,000 as his fee for conducting the whole case. However, after the termination of the forma pauperis proceedings, the defendant chose to engage another lawyer, who conducted the proceedings of the regular case. Thus all that the plaintiff did was to have looked after the case till the termination of the forma pauperis proceedings. I consider that the payment of a sum of Rs.1,000 to the plaintiff as his fees for the aforesaid labour put in by him should meet the ends of justice."

Similarly in the judgment of the District Court it was stated : -

"Thus from the time active conduct of the case was taken away from the hands of Mr. Ghani consideration for part of the contract failed. The lose of this particular case from the time he was not actively engaged in it gives no cause of action to Mr: Ghana for a claim of damages. His payment should be in proportion to the work actually conducted by him. It .would be against. Principle of contract to expect the client to go on paying when the consideration had failed. So I think the learned Sub-Judge was right when he thought fit to allow only a reasonable amount as the fee."

It is evident, therefore, that both these Courts came to the same conclusion, namely, that Mr. Ghani was ready and willing to perform his part of the contract, and that it was owing to the defendant's own fault if Mr. Ghana dirt not take any active part in prosecuting the case further himself. So far as I can see, the judgment of the lower Appellate Court has erred in applying the Law of Contract. Rs.2,000 should have been allowed.

Mr. Ghani also claims Munshiana. This is not mentioned in the contract, and he says it is a question of custom. But the lower Appellate Court has held that no law has been shown to support the contention that the Advocate's Munshi should be paid separately, and so far as I know no evidence was led to prove this custom, except the statement of Mr. Ghana at the Bar. The more statement of an interested party is not sufficient to establish a local custom.

The result is that this appeal is allowed, and the decree passed should be varied by substituting Rs.2,000 for Rs.1,000, and by varying the directions as to costs. The defendant will pay 9110th of the plaintiff's costs throughout."

A . A .

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.