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Second Appeal No. 46 of 1980, decided on 16th February,1986.

‑‑‑S. 100‑‑Second appeal‑‑Concurrent findings of facts of Courts below‑‑Questions raised in second appeal being pure questions of fact, High Court, held, could not go into them‑‑Jurisdiction of Court to ' enter into such‑questions of fact is barred in absence of cogent reasons for disturbing such findings of fact.

Qurbanali N. Pishori for Appellant.

Shafaat Hussain for Respondent.

Date of hearing: 16th February, 1986.

This IInd Appeal is directed against the judgment and decree passed by the IVth Additional District Judge, Karachi, dated 5‑1‑1980 and 19‑1‑1980, respectively, whereby, appeal filed by the appellant against the judgment and decree of XXth Civil Judge, Karachi, was dismissed.

The facts of the case, briefly, are, that the respondent who carried on business in the name of 'Hussain Industries' for manufacture of iron grills and windows, filed a suit for recovery‑of Rs 5,228.75 against the appellant, inter alia, alleging that she had supplied ten windows with grills and seven ventilators and Rs. 1‑4 per square foot to the appellant. The total amount claimed as due to the respondent was shown to have been received by the respondent by way of advance from the appellant. Thus, an amount of Rs. 5,228.75 was still found to be due and recoverable from the appellant in respect of which the suit was filed.

The appellant filed written statement, wherein it was alleged that he had, in fact, paid Rs. 6,500 as advance to the respondent and not Rs. 2,500 as alleged by the respondent in her plaint. It was also denied that rate agreed at was Rs. 16 per square foot as according to the appellant, .the rate was agreed Rs. 14 per square foot. On the basis of this, liability was admitted by the appellant only to the extent of Rs. 3,780.

On the basis of such pleadings the learned Single Judge framed the following issues:‑

(1) What was the rate settled for work entrusted by defendant to the plaintiff

(2) How much of the work was done by the plaintiff and for what amount

(3) Is the defendant liable for the suit amount

(4) To what relief, if any, is the plaintiff entitled

Learned Civil Judge, thereafter, concluded that the rate settled between the parties was Rs. 16 per, square foot. He further held that the advance received by the respondent was only. Rs. 2,500 and not Rs. 6,500 as claimed by the appellant. The learned Civil Judge, therefore, came to the conclusion that the respondent was entitled to decree in the amount claimed by her.

I have heard Mr. Qurban Ali Pishori, Advocate on behalf of the appellant and Mr. Shafaat Hussain, Advocate on behalf of the respondent.

The appellant has assailed the judgment of the learned Courts below on various grounds but when it was pointed out to Mr. Pishori that being a IInd appeal, this appeal was maintainable only on a question of law the learned counsel pressed only one short point before this Court. The contention of the learned counsel was that the Courts below had misread an important document produced in evidence by him, namely, Exh. D/2. Exh. D/2, which is a bill, was already given to the appellant by the respondent on 8‑6‑1975 at the time when order was placed by the appellant with the respondent for supply of the said goods. This Exh. D/2 presents a very interesting reading. First of all although Rs. 14 per square foot, has been shown to be the rate in figures, but the Urdu writing against that shows rupees sixteen per square foot. However, it is clear from this document that Rs. 14 in figures was an over‑writing, as originally Rs. 16 seems to have been written. Besides that, Rs. 4,000 has been shown to have been received by the respondent as advance, but again below such figure, another figure of Rs. 2,500 has been written. However, this document seems to have remained the basis of controversy between the parties. According to the appellant, the rate agreed between the parties was Rs. 14 while according to the respondent the same was Rs. 16.. Again, according to the appellant, the advance received by the respondent, was Rs. 6,500 but‑ the same according to the respondent was Rs. 2,500. Both the Courts below while addressing themselves to this controversy have come to the conclusion that rate agreed was Rs. 16 per square foot while advance received by the respondent was only Rs. 2,500. On the basis of such conclusions both the Courts below held that the respondent was entitled to, decree in respect of the amount claimed by her with 9 future interest and costs of the suit.

The reasons, which weighed were, that Exh. D/2 contained, over‑writings and interpolations and the same according to the learned Courts below could not be called in aid to support the appellants' case. It was held that although the figure of Rs. 16 was altered to Rs. 14 but no corresponding alteration could be found in respect of words. About the figure of Rs. 4,000 shown as advance, it was held that the same was an interpolation and the actual amount received by the respondent was Rs. 2,500 against which figure the respondent had also put her signature.

I am afraid, the questions raised are pure questions of fact and in the IInd appeal, this Court cannot go into such questions. Sections 100 and 101, C.P.C. bar the jurisdiction of this Court to enter into such disputed questions of fact. The learned Courts below have considered Exh. D/2 in the light of other evidence adduced by the parties and findings arrived at by them are findings of fact and no cogent reasons have been shown by Mr. Pishori for disturbing such findings. No other ground was pressed by Mr. Pishori.

For the aforesaid reasons, I find no substance in this appeal and the same is hereby dismissed with costs.

A.A appeal dismissed.

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