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Regular First Appeal No.137 of 1982, decided on 20th January, 1987.

---Art. 76(f)--Secondary evidence--Production of--Evidentary value- Register of Firms being a public document, its entries, held, could be proved only through certified copy of such entries--No other secondary evidence including mere photostat copy thereof would be admissible.

---Art. 118--Burden to prove--Failure to discharge--Effect--Defendant alleged in his written statement that plaintiff was not registered Firm and assailed copy of certificate relied upon by plaintiff on ground that same being photostat was not admissible--Burden to prove allegations was on defendant, but he did not produce any evidence to discharge such burden--Defendant, held, would fail in absence of evidence on his behalf even if plaints did not give . any evidence to prove otherwise.--[Burden of proof].

Messrs Sh. Mian Muhammad Allah Bux v. Universal Corporation and others P L D 1960 (W.P.) Kar. 736; Muhammad Bakhsh v. Nizam Din P L D 1978 Lah. 31 and Kapurchand Bhagaji Firm v. Laxman Trimbakand others A I R 1952 Nag. 57 ref.

---Art. 113--Admission of fact--Witness produced by plaintiff claimed that plaintiff was registered firm and he was managing partner thereof--Version of witness remained un-rebutted on behalf of defendant---Assuming that photostat copy produced by plaintiff in proof of his claim was no admissible, it would be, held, assumed that factum of registration plaintiff-firm was tacitly admitted by defendant by not challenging testimony of plaintiff's witness.

---Arts. 117 & 118--Defendant failed to produce any evidence to prove that amount sued by plaintiff-firm was ever adjusted by defendant-Mills against amount due to it from Cotton Trading Corporation after its nationalization--There being no documentary proof of such adjustment, bare averment made by defendant in written statement to that effect, held, was of no avail.

---S.34--Payment of interest to plaintiff--Powers of Civil Court-- Discretionary powers of civil Court to order payment of merest to plaintiff including interest for period prior to institution of suit: held, could not be objected to merely because there was no usage in at respect.

Kh. Muhammad Habib Ullah and Iftikhar Ahmad Dar for Appellant.

Aamar Raza A. Khan for Respondent.

Date of hearing: 20th January, 1987.

This Regular First Appeal arises from the judgment decree dated the 7th of September, 1982, of the learned Senior Civil Judge, Lahore, whereby the suit for recovery of Rs.2,28,143.50 brought by the respondent firm Messrs Abdullah Industries was decreed against the appellant Messrs Burewala Textile Mills Limited with costs and also interest at 10% per annum from the date of its accrual viz. the 14th of July, 1976, till realization.

2. The respondent firm through its Managing Partner sued the appellant-Mills for recovery of the balance of Rs.2,28,143.50 allegedly payable to them on account of supply of "fully pressed iron bond cotton bales" made to them on the 14th of July, 1976. Due to promulgation of the Cotton Ginning Control and Development Act, 1976, the respondent firm was nationalized and its assets /liabilities passed on to the Cotton Trading Corporation of Pakistan. It was thought that the amount in question was then payable to the said Corporation and, therefore, the appellant-Mills sought clarification from them in this behalf. The Corporation, however, directed them to pay it to the respondent-firm but in spite of it, the amount was withheld. In the meantime due to enforcement of the Cotton Ginning Control and Development (Repeal) Ordinance, 1977, the respondent firm was denationalized whereupon they repeated their demand from the appellant but without any success whereupon they brought the present suit claiming interest from the 14th of July, 1976. when the amount fell due.

3. The suit was resisted taking objections that it was hit by section 69 of the Partnership Act, and was not maintainable for want of cause of action as also verification of the plaint, The alleged sale of cotton bales by the respondent-firm to the appellant Mills eras not denied but it was claimed in defence that the amount had been adjusted by them against the Cotton Trading Corporation which had acquired their own ginning factory and had to pay them a huge amount of Rs.13,42,656 by way of compensation. They added that earlier they had received a direction from the Cotton Trading Corporation for paying this amount to them and that is why they adjusted it as explained above.

4. The following issue were framed by the trial Court:

"(1) Whether this suit is barred by section 69 of the Partnership Act O.P.D.

(2) Whether the plaintiff has no locus standi or cause of action to file the suit O.P.D.

(3) Whether the plaint has not been properly verified If so, its effect O.P.D.

(4) Whether the plaintiff firm was acquired by the Federal Government and whether its management was transferred to the Cotton Trading Corporation If so, its effect O.P.P.

(5) Whether the defendant was required by the Cotton Trading Corporation to pay the sued amount to the plaintiff O.P.D.

(6) Whether the plaintiff is entitled to recover Rs.2,28,143.50 from the defendant O.P.P.

(7) Whether the defendant was entitled to adjust the sued amount against the amount due to it from Cotton Trading Corporation and whether it adjusted the same against the amount due to it from Cotton Trading Corporation If so, its effect O.P.D.

(8) Relief."

5. The appellant's objections were spurned and the suit was decreed.

6. The main plank of Khawaja Habib Ullah for the appellant-Mills was that the plaintiff-firm was not proved to have been registered and, therefore, the suit was hit by section 69(2) of the Partnership Act. He assailed the copy Exh.P.3 of the certificate relied upon by the respondent on the ground that being a photostat, it was not admissible and that it did not conform to the requirements of sections 67 .and 68 of the Act whereunder a certified copy of the entries made in the Register of Firms could be obtained. He placed reliance upon Messrs Sh. Mian Muhammad Allah Bux v. Universal Corporation and others PLD 1960 (W.P.) Kar. 736; Muhammad Bakhsh v. Nizam Din P L D 1978 Lah. 31 and Kapurchand Bhagaji Firm v. Laxman Trimbak and others A I R 1952 Nag. 57 in this behalf.

6. Ostensibly there is much substance in the contention that a photostat is not admissible. Here the Register of Firms being a public document, its entries could have been proved only through a certified copy under section 65(e) of the Evidence Act and by "no other kind of secondary evidence". But this is not all about it. The appellant although raised an objection in its written statement and got even an issue framed thereabout, but at the same time undertook to discharge the onus probandi. Their counsel vide his statement dated the 27th of July, 1982, indicated that he would produce no evidence worth the name and thus, it was a case where there was total absence of evidence on behalf of the appellant-Mills. Section 102 of the Evidence Act provides that burden of proof would lie on that person who would fail if no evidence at all were given on either side. Since the objection was raised by the appellant, they would fail in it even if the opposite party does not give any evidence. A perusal of the precedent cases shows that burden of proof lay on the other side and when they failed to produce certified copies of the Register of Firms, the point was decided against them. Here, the placement of burden of proof seems to change the complexion rather to the disadvantage of the appellant who should suffer for their own neglect.

7. Why the photostat P.3 was produced was explained on the ground that the original thereof had been submitted to the Cotton Trading Corporation presumably on account of nationalization of the establishment. P.W.6 Zafar Javed claimed that the firm was a registered partnership of which he was a Managing Partner. There was no rebuttal of his version, and assuming that the photostat P.3 was not admissible, his statement will have to be accepted as having not been traversed. In other words, it may be assumed that the factum of registration was tacitly admitted by having failed to challenge the P.W's testimony. In fact admitted need not be proved is yet another principle of law which seems to help the respondent firm. This is what basically section 58 of the Evidence Act contemplates.

8. As to the liability to pay the amount in question, practically there was no controversy. Even in para. 9 of the memo. of appeal, it was admitted. Instead it was claimed to have been adjusted against the Cotton Trading Corporation which on the appellant's own showing had to pay them Rs.13,42,656 by way of compensation for their assets. Since their cotton ginning factory was returned to the appellant-Mills after denationalization, there was no force in the plea of making any adjustment between the appellant on one side and the C . T. C . on the other. Further, no evidence whatsoever was produced to bear out any such adjustment. As already disclosed, no evidence on behalf of the appellant on any issue was produced. The bare averment made in the written statement to that effect was of no help. Some book account must have been involved in the process but no excerpts either from the C . T. C's record or that of the appellant themselves was produced to reveal it. The contention had no substance and was rightly repelled by the trial Court.

9. Lastly, the award of interest particularly for the period preceding the institution of the suit was seriously objected to. According to learned counsel there was no usage but Mr. Amar Raza A. Khan for the respondent abandoned the portion of interest accruing to them till the date of the institution of the suit. Section 34 of the Code of Civil Procedure authorities payment of interest including for the period prior to the institution of the suit. It is a discretionary matter and cannot be objected to merely because there was no usage. However, because of the grace shown by the learned counsel for the respondent, the interest awarded to them till the date of institution is remitted. There was no reason to show any more indulgence in the matter of interest accruing during pendency of the suit or till realization of the decretal amount.

10. As a result, we partly accept the appeal. The impugned decree shall stand modified to the extent that the appellant-defendant shall not be liable to pay interest on the main debt for the period beginning the 14th of July, 1976, till the institution of the suit, that is the 11th of July, 1979. Except for this modification, the, impugned decree is upheld. Parties to bear their own costs.

H.B.T./B-3/L Order accordingly.

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