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Second Appeal No.97 of 1979, decided on 2nd September, 1986.

‑‑‑S.9‑‑Contract Act (IX of 1872),S.177‑‑Suit for recovery‑‑Appellant failing to substantiate through evidence that respondent had any connection with firm whose proprietor was his deceased father and from whom appellant allegedly secured loan on pledging golden ornaments as security‑‑Appellant neither filed suit against legal heirs of deceased nor averred that said firm was a registered firm‑‑Appellant also failed to prove that he pledged golden ornaments with deceased Respondent deposing that shop where his father had been working was closed after his death and that he had not received any share from s father's shop‑‑Concurrent findings of facts by Courts below again appellant neither perverse nor imaginary‑‑Appeal dismissed in circumstances.

Farooq Naik for Appellant.

Date of hearing: 1st September, 1986.

The appellant being aggrieved by the judgment and decree, dated 16‑10‑1978 passed by Vth Additional District Judge, Karachi against the judgment and decree, dated 14‑9‑1977 of XIXth Civil Judge IIIrd Class, Karachi filed the present second appeal.

The facts in brief are that the appellant filed a suit for recovery of Rs.1,650 alleging therein that the appellant obtained loan of Rs.1,650 from Messrs Amin Traders Co., of which A.A. Dada was proprietor, in the month of August 1969 and pledged his golden ornaments as security. The appellant tried to get this loan redeemed in August, 1969 but with no result as A.A. Dada had gone to Dacca and remained there for about two years and on his return to Karachi again attempts were made to get this loan redeemed but A.A. Dada refused to redeem the same on one pretext or the other and notices were also exchanged. The appellant having failed to get his ornaments back, filed suit but the same was dismissed. The suit was filed against M/s. Amin Traders Co., through its proprietor Muhammad Younus. The suit was resisted by Muhammad Younus. He has pleaded that he has no concern. or connection with this firm M/s. Amin Traders Co., and he is not liable to pay any amount whatsoever to the appellant. On the pleadings the learned trial Court framed the following eight issues:‑

(1) Whether the plaintiff took a loan of Rs.1,650 and mortgaged with the defendant gold ornaments as stated in para. 117.

(2) Whether in spite of plaintiffs efforts the late A.A. Dada proprietor of defendant refused to redeem the mortgage

(3) Whether the plaintiff sent notice on 19‑7,19‑71 and 8‑8‑1971 and in reply to notice, dated 17‑8‑1971 when the plaintiff ‑vent with money the defendant refused

(4) Whether the plaintiff sent a post, dated cheque on 5‑9‑1971 but the defendant not encashed and sent a evasive reply on 6‑3‑1972

(5) Whether the suit has been properly filed against Muhammad Younus son of A. A. Dada

(6) Whether the suit is barred under section 11, C.P.C.

(7) Whether the plaintiff has any cause of action against Muhammad Younus

(8) What should the decree be

The learned counsel for the appellant has contended that Muhammad Younus is the son of deceased A.A. Dada and he is carrying on business of the firm. Muhammad Younus has denied that he has any connection with the firm M/s. Amin Traders Co. The appellant has pledged golden ornaments with A.A. Dada, Sole Proprietor. Thus, the admitted position is that A.A. Dada was the Sole Proprietor. Muhammad Younus was not a partner of the firm and he has no connection with the firm. The appellant has not substantiated though any evidence that Muhammad Younus had any connection with the said firm. The ornaments were not pledged with the respondent (Muhammad Younus). The respondent has also denied that the goods were pledged with him and he had no knowledge about the pledging of the ornaments with the deceased. The first Appellate Court has rightly observed that the appellant failed to file the suit against the legal heirs of the deceased. It is also not averred that this firm was a registered firm. It has been further observed that the appellant has failed to prove that he pledged any golden ornaments with the deceased. The appellant has produced photostat copies as Exhs.2, 2/1 and 2/2. The original have not been produced. Photostat copies cannot be admitted. The respondent Muhammad Younus in his deposition stated that the shop in which his father was working is closed after death of his father shop has further stated that he has not received any share from his father's shop after his death. There was no ornaments or any cash in his father's shop after his death. He has also not admitted any notice having been served upon him.

There are concurrent finding of facts which are neither perverse nor imaginary. The appeal has no force. The same is dismissed with not order as to costs.

M.Y.H. Appeal dismissed.

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