2002 PLP 3712 (YLR)

Sher Zaman Khan, Dy.A.‑G. for Petitioners. Allah Wasaya Malik for Respondents. Dates of hearing: 21st and 23rd May, 2002. Respondent was awarded a contract for the construction of 128 barracks for the Airmen of Pakistan Air Force at Mianwali on 23‑7‑1996. While the work was going on, the petitioners issued a deviation order requiring the contractor to complete the internal electric wire by baton wiring instead of concealed wiring. Respondent completed the work and submitted last and final bill (Exh. P/12) on 1‑2‑1988. While processing the same, the petitioners, made some deduction, which led the contractor to file a suit on 11‑4‑1992 for recovery of Rs.81,

629. The suit was contested on the grounds inter alia of estopped and limitation. After trial of issues, the suit was decreed with 15% interest on 23‑1‑1994. Petitioners appeal filed on 15‑4‑1997. The learned District Judge after hearing appeal only modified the rate of interest to 10 %.

2. It has been contended by learned Deputy Attorney‑General that the suit has been wrongly held as within time by applying Article 120 of the Schedule to the Limitation Act, 1908. He submits that in fact Article 56 is applicable which provides three years period. In his submission the final bill was submitted on 1‑2‑1988 and three years period would end on 31‑1‑1991. The suit filed on 11‑4‑1992, therefore, is beyond time. In support, he has relied on Government of West Pakistan v. Syed Zainul Ebad Rizvi (PLD 1977 Kar. 297). By inviting attention to final bill Exh. P.12 at page 83 he has then argued that the petitioner has signed the statement to the effect " .I/We have no further claim in beyond the net amount of this bill ". The above is the printed matter. According to the learned Deputy Attorney‑General, the plaintiff having accepted the amount of the final bill minus the deduction without reservation and having assured that he has no further claim, plaintiff cannot be permitted to turn around and plead to the contrary.

3. Learned counsel for respondent/ plaintiff has refuted the above submissions. He has maintained that as no specific Article of the Schedule of the Limitation Act is applicable, the two Courts have correctly applied the residuary Article

120. He has argued that suit having been brought within six years is within time. Alternative, he has argued that there has been correspondence between the parties on the subject of deduction and it was on 15‑4‑1989, vide P.6 that the petitioners finally maintained that their calculation was correct and that they were not paying the deducted amount. According to him even if Article 56 is to apply, suit having been brought within three years of this date will have to be held as within time. As regards the other issues he has also invited attention to Exh. P.12 and to the cutting of word "no" in the above‑quoted line to build the argument that the plaintiff clearly reserved his right to challenge the deduction and to claim more money.

4. It is well‑established that Article 120 is a residuary Article and applies to suits "for which no period of limitation is provided elsewhere in this Schedule." The language of Article 56 shows that the respondent's case is covered by the same. It reads:‑ "For the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment‑‑three years when the work is done."

5. The claim for the plaintiff is clearly related and is arising out of the work/contract awarded to him by the petitioners. The work was done before 1‑2‑1988 when the last bill was submitted. Calculated from this point of view the suit is barred by time. The judgment relied upon by learned Deputy Attorney‑Genera is applicable. The two Courts have erred in applying the residuary Article 120.

6. The two Courts do not seem to have erred in deciding Issue No.3. The respondent‑plaintiff has been demanding payment of the deducted amount and this is shown by the correspondence produced in evidence as Exh. P.4 and Exh. P.5. Plaintiff has been insisting that his calculation was correct while the petitioners have been denying the same. At no stage the plaintiff is shown to have waived or abandoned his claim. The printed lines appearing in Exh. P.12 only bind the contractor to the extent that apart from the amount mentioned in the bill, he has no other claim. The language does not debar the contractor from claiming the amount, which has been deducted from the final bill. Findings of the two Courts under Issue No.3 are affirmed.

7. No other point has been argued. In view of the findings under Issue No. 2 it is held that the two Courts below have exercised their jurisdiction illegally. The impugned judgments and decree are set aside and the suit is dismissed with no order as to costs. H.B.T./C‑186/L Revision accepted.