1982 PLP 1536 (CLC)

Subject : Amendment to MES Schedule of Rates 1970. A copy of advance amendment No. 6 dated 6th February, 1974 is for warded herewith for information/necessary action. Amendment MES Schedule of Rates 1970 Amendment No. 6 Dated 6 Feb. 1974. Page No. 39 Delete Insert Items Nos. 36 and 38 10.10 and 13.95 and under heading 9.40 13.25 "Material & Labour"

4. This amendment to items Nos. 36 and 38 were not pressed into service by the respondent during continuance of the work while making running payments nor at the time of payment of the final bills. The question whether in order to make the amendment effective a notification was necessary or not was a question to be determined during the trial. The learned counsel for the appellant has frankly conceded that the Depart ment had the right to recover any short payment under Clause 67 of the Basic Contract read with Clause 63: He, however, submits that since the letter dated 6th February, 1974 quoted above did not have the effect of amending the schedule the question of re‑imbursement of, the excess pay ment did not arise:

5. The question raised in the suit was one of first impression. The work had already been completed. The Department had not charged the appellants according to the revised schedule and it seems that even the revision in the items Nos. 36 and 38 was not in the knowledge of the Department. The question whether such an amendment was required under the law to be notified or by simply circulating the letter was suffi cient to make the amendment effective. If it was required under the law to be notified, a publication was necessary and reliance in this behalf may be placed on a judgment of the learned Supreme Court Province of East Pakistan v. Hassan Askari (PLD1971SC82). Since important questions were involve it could not be said that the prima facie case had not been made out. The conduct of the Department also supported the contention of the appellants. It would have been a breach of an obligation both contractual as well as legal in case the respondents would be permitted to recover this amount from the security or from other works and the stay order could be granted in the circumstances on any reasonable terms.

6. In view of the above discussion I accept this appeal, set aside the order of the learned Civil Judge, Lahore dated 12th August, 1979 and direct that the respondent shall not be entitled to recover the amount of Rs. 1,30,701.30 from the appellants from their security or from any other amount due to them pending the disposal of the suit on the appellants furnishing security for the realization of the amount of Rs. 1,30,701.30 to the satisfaction of the learned trial Court within one month.

7. Since a very short question is involved which is purely legal the learned trial Court shall try to dispose of the suit within six months, if possible. However, there will be no order as to costs. M.Y.H. Appeal accepted.