1996 PLP 1713 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.

This petition is from the order of a learned Single Judge of Peshawar High Court, Peshawar, dated 30-11-1994, dismissing in limine a revision petition filed by the petitioners-Government, in a dispute between the Government of N.-W.F.P. in the Irrigation Department and the respondent-Contractor.

2. The respondent was assigned a contract by the petitioners for 'Repair of Existing Apron of Syphon at R.D. 112300 (U/S Portion) Warsak Gravity Canal. The work assigned was started on 28-7-1973. Due to floods in the ' Nullah' the respondent could not continue the work. Nonetheless, the Engineer Incharge recorded the quantum of work done by the respondent in the measurement book whereof the latter submitted him bill amounting to Rs.12,287.52 which was declined by the former due to the natural calamity falling within the purview of Clause 29 of the Contract Agreement. Having failed in his attempt to get his claim settled, the respondent filed a suit against the petitioners for recovery of Rs.12,287.52 in the-Court of Senior Civil Judge, Peshawar.

3. The suit was emphatically resisted by the petitioners' pleading, inter alia, the bar against the claim "on account of damage caused by floods, 'force majeure' or any act of God, to partly completed work ...." as envisaged by clause 29 of the Contract Agreement.

4. Since the fate of the case hinges upon the correct construction to be placed on clause 29 of the Agreement as aforesaid it would be appropriate to reproduce it which reads as under:-- "Clause 29.--The Government will accept no responsibility on account of damage caused by floods, fires, spates, thefts, riots, force majeure, or any act of God, to partly completed work, or to material belonging to the contractor or to materials supplied by the Public Works Department once they have been handed over to the contractor. " The learned Trial Judge, while construing clause 29 ibid observed that ordinarily the respondent would have been disentitled thereunder to leis claim for partly executed contractual assignment but due to serious and alarming situation the petitioners had themselves declared it to be abnormal and beyond the control of the respondent. According to the learned Trial Judge, it was, therefore, recommended that the payment of his dues should be made. In the opinion of the learned Trial Judge, the rigours of clause 29 were not applicable to the claim of the respondent. The suit was thus decreed with no order as to costs. The petitioners-Government, feeling aggrieved by the interpretation of clause 29 ibid, filed an appeal before a learned Additional District Judge, Peshawar, which was also dismissed. The learned Appellate Court, however, construed the clause differently holding that notwithstanding the fact that the work done on the spot was washed away due to heavy floods, the clause could not be pressed into service inasmuch as the work done had come to be duly recorded in the measurement book. The construction put on clause 29 ibid by the learned Appellate Court appears to be that if the work done stands recorded in the official measurement book then it would not be hit by ' force majeure.'

5. Still not contented with the findings of the two Courts below, the petitioners-Government challenged them in a revision petition before the High Court. It was argued before the learned Single Judge in the High Court that the learned Courts below had incorrectly interpreted the clause qua 'force majeure', in that, it was nowhere stipulated in clause 29 that if the work done had been recorded in the measurement book it would cease to be applicable. While repelling this contention raised on behalf of the petitioners-Government, the learned Judge in Chambers observed as under:-- "But the position in this case is not like this as the record indicates. The contractor has been given a decree for the work done by him at the spot and for which the Incharge Engineer has duly recorded measurements in his 'Measurement Book' and the payment had been sought in line with those measurements. The Sub-Engineer Incharge who has been examined in Court has stated that the work done by the Contractor was satisfactory. In this view of the matter the Contractor was entitled to receive payment from the Department for the work done in accordance with clause 8 of the Agreement and. a decree as such was rightly passed by the Trial Court and affirmed subsequently by the Appellate Court."

6. Mr. K.G. Sabir, learned counsel appearing on behalf of the petitioners Government, contended before us that the learned Judge in Chambers of the High Court had, besides attacking the significance to clause 8 of the Contract Agreement, erred to read it conjunction with clause 29 ibid.

7. A bare perusal of the record would reveal that this plea was not raised by the petitioners-Government in the written statement. It appears to have been taken up for the first time in the arguments before the learned Trial Judge. Be that as it may, the stand of the petitioners taken before us is also untenable. The view taken by the two Courts below and that expressed by the High Court does not appear to be violative of any known principle of interpretation of documents. 'Force majeure' clause couched in the words in the instant case is to be construed strictly in contradistinction to the one employed in other contracts particularly those in carriage of good by sea in compensation claims. Carver's views on 'act of God' expressed in his book 'Carriage of Goods by Sea', Tenth Edition have been borrowed in Messrs Abdul Rahman-Abdul Ghani v. Messrs United Oriental Steamship Co., Karachi (PLD 1959 Dacca 536) which find expression in paragraph 19 in the case of Province (State) of Madras, represented by the Chief Secretary, Government of Madras v. I.S. and C. Machado, a registered firm of General Merchants and Commission Agents, Tuticorin (1920 A C 324) which would be attracted to the case before us and are reproduced as under.-- "act of God" is a mere short way of expressing the proposition that a common carrier is not liable for any accident as to which he can show that it is due to natural causes directly or exclusively without human intervention and that it could not have been prevented by any amount of foresight paid and care reasonably to be expected from him." (Underlining is for the sake of emphasis). The litmus test as to the invocation of the 'act of God' clause in a contract agreement, notwithstanding the use of very broad phraseoiogy therein, would be whether the .damage to the work done by the Contractor and taken down in the official record could not have been averted by any amount of foresight paid and care reasonably to be expected from him. If it is proved as has been conceded in the case before us, then 'force majeure' clause would give way to other clauses (namely clause herein) as rightly held by the learned Judge in Chambers of the High Court.

8. For the foregoing reasons, we do not find that the High Court had construed the clause containing 'force majeure' in the contract agreement in the case in hand against any accepted principles of interpretation of documents. Hence no ground for interference in the instant case exists. We, therefore, refuse to grant leave to appeal in it. A:A./C-558/S Leave refused,