P L D 1968 Karachi 574 (PLP)

QADEERUDDIN AHMED, J.‑This, appeal arises from Suit No. 844 of 1955 which was dismissed by our learned brother A. S. Earuqui, J., on the 21st of December 1960. The plaintiffs who have appealed against that judgment and decree had sued the respondent for the recovery of Rs. 26,963‑9‑0 being the cost of the work that was done and damages for the unfinished work.

2. The material facts are that the respondents had planned to set up a factory and needed a building to house the machinery as well as office premises. They entered into a contract with the plaintiff‑appellants which was reduced to writing and bears the date of the 5th of March 1952. The superstructures were to be made on a plot of land which they had taken on lease from the S. I. T. E. The provisions of the contract cover barely about two pages, and their controversial parts are as follows: " That the landlords (respondents) order for the erection of the half‑shell type construction of their factory sited measuring 80' x 50' according to drawing approved and signed by the landlords and agree to pay Rs. 6 (rupees six only) per square foot as lump sum cost." Further :

"The work will be completed after 3 months of the approval of the plans." After 24 days of the execution of, the above contract, the respondents submitted a plan of their factory for the approval of the S. I. T. E. authorities, which was approved by the authorities on the 7th of April 1952. That plan was never used for constructing the factory ; nor eras it of the half‑shell type which is mentioned in the contract. Counsel for the parties informed us that construction of the factory began in July or August 1952, but it was found that Messrs Gammons had patented the half shell type factory designs ; therefore it could not be adopted for constructing the factory of the respondents. Another plan was, therefore, prepared by an architect, Mr. Siddiq, and was presented by him for the approval of the S. I. T. E. The office of the S. I. T. E. objected to it on the ground that it, was not sound; but the officers overruled the objection because it was not their responsibility. The plan was then approved and was follow in the construction of the factory.

3. There was a controversy, during the trial before the learned Single Judge, as to whether Mr. Siddiq was engaged by the plaintiff‑appellants or by 'the respondents. He was described as the man of the plaintiff‑appellants in the letters which are Exhs. 21 and

22. There is no contradiction of that statement on behalf of the plaintiff‑appellants either in their correspondence or in the evidence led by them. Their learned counsel, Mr. lbadat Yar Khan, therefore; conceded that it was not possible for him to deny that Mr. 8iddiq represented his clients.

4. After the execution of the contract it was agreed between the parties that the plaintiff appellants would construct their office premises as well as lay a pipeline. The construction was to be completed, according to the contract, within three month from the date of the approval of the plan; but long delays occurred and it was found after the virtual completion of the factory that the pillars could not sustain the weight of the roof which began to sag, or bend towards the ground in curve. While the delays were occurring and. the design proved to be defective, the respondents were becoming impatient because, according to them, their machinery had arrived, which was stored and was, suffering wastage as well as causing expense of storage. They, therefore, filed two suits against the plaintiff‑appellants, one for the recovery of Rs. 19,600 as damages and the other for injunction to restrain the plaintiff‑appellants from interfering with the construction of the factory by the respondents themselves who had succeeded in taking possession of the building site with the aid of the police. After the institution of those snits, the plaintiff appellants instituted the suit from which this appeal has arisen.

5. Their suit has been dismissed by the learned Single Judge mainly on the grounds that they were responsible for the defect of the design and because they had received Rs. 21,000 in cash and in the form of the material, with the result that nothing was due to them.

6. Mr. Ibadat" Yar Khan has not disputed the amounts to which the plaintiff‑appellants were held by the learned Single Judge to be entitled and was reasonable enough to concede that his clients could not bring a suit for more than Rs. 12,

500. The arguments which were addressed before the learned Single. Judge and his judgment enabled counsel to reduce the controversy for the purposes of this appeal to a single point. He contended that the main point for decision in this appeal was as to who was responsible for the defect in design. This question could be broken up, according to him, into four subsidiary questions as follows :‑‑ (i) Who was responsible for making the design? (ii) What is the effect of the approval of the design by the respondents? (iii) What is the effect of non‑payment of any separate remuneration for the design by the respondents to the plaintiff. appellants? (iv) Whether the plaintiff‑appellants were rightly expected to use their skill in producing a sound design? 7.After the elimination of the controversy, as stated above, as to which of the parties had prepared the design, the above‑mentioned questions are to be considered from the point of legal responsibility only. 1t is true that the plan which was prepared by the plaintiff‑appellants was approved by the respondents, and that there is no mention of any remuneration for doing this job, in the contract, which mentions the liability of the respondents to gay Rs. 6 per square foot as a lump sum cost. The question which immediately arises in these circumstances is as to why the plaintiff‑appellants under took the job of preparing a design for the factory and getting it passed, after the approval of the respondents, by the I T. B. It is significant in this respect to note that they have never claimed any charges for getting the design prepared by their architect. If it was not their responsibility to prepare the plan of the factory, then they would have either not done the job or claimed remuneration for it separately. It follows, therefore, that the lump sum cost, which is mentioned in the contract, included the charges for preparing the plan. This becomes clearer if we keep in our mind the mention of the half‑shell type construction in the contract which was a departure from the original plan which was separately presented by the respondents to the S. I. T. E. authorities and approved by them. The explanation of the plaintiff‑appellants as to why the final design did not conform to the half‑shell type is that it was patented by Messrs Gammons. This explana tion' leads us to the conclusion that the departure made from the original plan by proposing to give the half‑shell shape to the factory was a mistake which was rectified by them by the preparation of the last plan.

8. The last plan was admittedly defective inasmuch as the span of the roof was too big to let its weight be sustained by the number of pillars which were conceived in the design, which resulted it, the downward. curve of the roof and the asbestos sheets with which it was covered had to be removed and more pillars had to be constructed. The respondents took possession of the premises when the sheets had been removed and the additional pillars were under construction. The factory was, therefore, undoubtedly incomplete when it went into the possession of the respondents.

9. The above facts indicate that the plaintiff‑appellants were responsible for designing the factory and were not entitled to be paid for it separately. This conclusion provides an unfavourable answer to the first and the third subsidiary questions which were framed by Mr. Ibadatyar Khan. It would have also provided the answer to the second and the fourth questions, but he argued that the approval of the design by the respondents relieved the plaintiff‑appellants of the responsi bility for its soundness. He supplemented this argument by saying that his clients were c3ntractors, and not engineers or architects ; therefore, they could not be taken to have accepted the responsibility, even if they did the job, for exercising of their skill.

10. In support of the last contention 5e cited the following passages from Hudson's Building and Engineering Contracts which appears at pages 147 and 150 of the eighth edition of the book :‑

"Sometimes, again, a contractor will expressly undertake to carry out work which will perform a certain duty or function in conformity with plans and specifications, and it turns out that the work constructed in accordance with the plans and specifications will not perform that duty or function. It would appear that generally the express obliga tion to construct a work capable of carrying out the duty in question overrides the obligation to comply with the, plans and specifications, and the contractor will be liable for the failure for the work notwithstanding that it is carried out in accordance with the plans and specification. Nor will he be entitled to extra payment for amending the work so that it will perform the stipulated duty." Further:

"If plans and a specification are supplied to the builder to work to, he will not normally have to do more than carry out the work according to the plans and specification a workman like manner, though he may well be fully aware of the purposes for which the work is required. It will be otherwise, it is suggested, if the builder himself designs and executes the work, although in the case of Lynch Thorne (1956) 1 All E R 744, the Court of Appeal be apparently, that even where the specification and plans supplied by the builder, there is no room for any implication of fitness for its purpose if the specification is clear and explicit as to the particular work the subject of complaint and the work as specified has been properly done." Counsel contended that the views expressed by the author are inconsistent with the judicial authority which has been cited by the author himself ; therefore the author's views cannot carry as much weight as the decision given by the Court. We may point out that the author has referred to a number of judicial precedents in support of the first quotation. In order, however, to meet the argument of counsel directly, we take up the case of Lynch v. Thorne to understand import. In that case the seller of a plot of land had agreed construct a dwelling house on it and to transfer the plot well as the house together. The plan and specifications of the house were announced to him in advance. The house was constructed exactly according to the plan but was later, on found by the purchaser to be defective. The question that arose was as to whether the seller was responsible for constructing a sound house or not. The Court of Appeal held that the seller had undertaken nothing more than to supply a house according to the plan and the specifications. This express contract excluded the implied warranty which could otherwise exist that it was to be fit for habitation. A warranty of fitness in that case was held to be an extension of the implied term for soundness which should be taken to have been excluded by the express words. Moreover, it was found that the seller had never proclaimed his skill at producing a sound house; therefore, if the buyer relied on it, he who only assuming an efficiency for which there existed no ground. The facts of that case are, in our view, patently different from the facts of this appeal inasmuch as the basis the responsibility is the amount of trust that can legitimately be placed in the skill of the promisor. A seller who sells a ready made article or an article to be constructed and supplied according to an announced plan does not ordinarily accept the responsibility for anything more than satisfactory workmanship. In this case, the plaintiff‑appellants neither selling a ready made factory nor factory which to be constructed according to announced plans. Their contract was vastly different inasmuch as they proposed a plan departing from the original plan of the respondents and then modified it on discovering the error that they had made in proposing it. The very fact that they chose or dared to depart from the original plan impliedly assured the respondents of the production of a better plan than the original plan. In fact this is precisely the case of the respondents. The approval of the respondents was necessary for presenting the plans to the authorities of the S. I. T. E. for sanction who, according to the rules, could not consider plans presented by strangers. This approval by the respondents meant their agreement that the plans may be considered for sanction. The argument of counsel that it was the duty of the respondents to get the design checked by competent' architects does not change the nature of the contention because it amounts to denial of the undertaking of his clients to do a good and sound job. If that was their responsibility, then the respondents assumed nothing more than what was legitimate and their omission to obtain advice from an engineer or an architect does not diminish the responsibility of his clients. In this connection we may make a note of the fact that originally his clients denied that the plans were prepared by their architect. The present stand of counsel that their architect had produced the design, clarifies the doubt about the assumption of the respondents that they could rely on his skill. Their approval was of a formal nature and not intended to extend to the scrutiny of the soundness of the design.

11. Counsel for the plaintiff‑appellants next argued that the defendant‑respondents were using the factory, presumably, after making modifications in the constructions ; they should, therefore, pay the price of that much work which has been utilised by them after removing the defects. It did not make by difference, according to him, if the parties had made lump sum contract because it did not mean in terms of the decision given in Hoenig v. Isaacs ((1952) 2 All E R 176) that the entire performance of the contract was a condition precedent to payment. It was held that‑‑‑ "When a contract provides for a specific sum to be paid on completion of specified work, the Courts lean against a construction of the contract which deprive the contractor of any payment at all simply because there are some defects or omissions. The promise to complete the work is, therefore, construed as a term of the contract, but not as a condition. It is not every breach of that term which absolves the employer from his promise to pay the price, but only a breach which goes to the root of the contract, such as an abandonment of the work when it is only half done. Unless the breach does go to the root of the matter, the employer cannot resist payment of the price." On the basis of the above observations, counsel argued that his clients were entitled to a quantum meruit. The law which he has cited, however, does not appear to assist him, because, in this case, the breach goes to the root of the matter inasmuch as the entire design was defective. Counsel tried to meet this by pointing out that the roof had sagged merely because more pillars were needed, and that this was a defect which could be rectified without changing the design completely. This is, however, a presumption which is not supported by any evidence brought on the record. Moreover, there is nothing to show as to whether the respondents had been able to utilise the construction by putting up a few more pillars only or not. The reason is that the angle from which the plaintiff‑appellants looked at the case was not that the design needed rectification by the addition of a few more pillars and nothing more ; their approach to the problem was that the respondents had prevented them from completing their job while they were neither responsible for the defect of the design nor consequently liable to rectify it. They have actually claimed the cost of some more pillars which they were trying to set up when the premises were taken over by the respondents. The argument counsel does not become better when it is realised that there is no material on the record to find out as to what would be the cost of the pillars which could be erected for removing downward curve of the roof and providing suitable support to it. Counsel's stand was that the break‑up of the expenditure incurred by his clients was not available because the contract being for a lump sum price, they did not maintain such ac counts. This explanation may be satisfactory to justify the omission, but it makes it impracticable to name any price for the rectifi cation of the design. The overall conclusion of the above discussion is that this appeal cannot succeed. It is accordingly dismissed. This conclusion was announced at the close of the arguments on the 3rd of April 1964. A. B. Appeal dismissed.