1989 PLP 4358 (MLD)

(2) Whether the progress of the work was hampered and delayed due to plaintiffs` conduct or because of various defaults committed by the defendant ? (3) Whether the plaintiffs had suffered losses to the tune of Rs.1,00,000 on account of the defendant's uncooperative and objectionable attitude ? (4) Whether the additional work relating to the fourth floor was not carried out by the plaintiffs in accordance with the defendant's instructions ? (5) Whether the plaintiffs are entitled in accordance with the contract of work for payment of their 11th final bill for Rs.70,460.30 and whether the defendant wrongly and unlawfully withheld payment of the same ? (6) Are the plaintiffs entitled to the reliefs claimed in the Suit? (7) What should the decree be ? Parties adduced evidence. I have heard Mr. Shamsul Arfeen, Advocate for the plaintiffs and Mr. Niazy Abdul Khaliq, Advocate for the defendant. My findings on the above issues follow with reasons. Issue No.l:--The onus of this issue was on the defendant. Defendant Mst. Mehrunnisa Ex: No.8 deposed that the construction made by the plaintiffs was of poor quality and was not upto the mark. She claimed to have given details of the unfinished and defective work in paras. 7 and 8 of her written statement. The defendant did not examine any other witness to support her on this issue. The defendant should have examined somebody from the firm of M/s. D. H. Daruvalla & Co. who supervised the construction work as architects. It was D. H. Daruwalla who had to judge quality of the work, as admitted by D.W. Mehrunnisa Ex. 8 in her cross-examination. Again it was D. H. Daruwalla whose decision in case of differences between the parties about the quality of the work, was to be final and conclusive and binding upon the parties, as per para. 16 of the Agreement Ex. 7/1. Even M/s. Zahiruddin & Co, mentioned in para. 11 of the plaint to be an independent architect, who supported claim of the defendant as I per para. 8 of the written statement, was not examined. Thus the defendant has failed to prove this issue, which is found in the negative. Issue No.2:--The onus of first part of this issue was on the defendant, while the onus of later part of the issue was on the plaintiff. Plaintiffs examined P W. Sulleman Ex. 7 who deposed that he could not complete the work within the stipulated period of 12 months because the conduct of the defendant, in giving possession of the site piecemeal, in not supplying the material like steel and cement when required and in taking long time m communicating her decisions whereby changes were desired in the original plan. In his cross-examination, P.W. Sulleman admitted that under the agreement the material was to be supplied by the defendant while the plaintiffs had to supply to the defendant the account about consumption of the building material supplied by the defendant. Plaintiff did not examine any body else in support. It was not put to defendant Mehrunnisa Ex. 8 in her cross-examination if she did not supply the building material in time to the plaintiff or if she took long time in communicating her decision to the plaintiff or if she desired various changes in the original plan. She denied if the work had failed on account of her failure to pay bills in time or to give vacant possession of the plot. P.W. Sulleman Ex. 7 did not state if delay in completion of work was due to failure on the part of the defendant to pay amount of the bills in time. It is therefore not proved if progress of the work was hampered and delayed , I due to any default committed by the defendant. Defendant Mehrunnisa Ex. 8 deposed that the plaintiff did not complete the construction work within the stipulated time and abandoned the work in 1970. She claimed to have given details of the unfinished and defective work in paras. 7 and 8 of the Written Statement. Solitary statement of the defendant, taken at its face value does not prove if progress of the work was hampered and delayed due to conduct of the plaintiff. The agreement Ex. 7/1 is an admitted document a` Tit was executed on 25-9-1967. The work under the contract was to be completed within 12 months after the date of the order, vide para. 10 of the agreement Ex. 7/1 P.W. Sulleman Ex. 7 said so in his evidence. So also defendant Meherunnisa Ex.

8. Admittedly the work which was subject-matter of the agreement Ex. 7/1 was not completed within the stipulated period. It was therefore incumbent upon the plaintiff to establish on record as to, why the work could not be completed within one year. He has not been able to substantiate the allegation, that progress of the work was hampered and delayed due to innumberable hitches and obstacles created by the defendant and due to obstructive and offensive attitude of the defendant. This issue is therefore found against the plaintiff. Issue No.3: The onus was on the plaintiff to prove that he had suffered loss to the tune of Rs.1,00,000 on account of defendant's non-cooperative and objectionable attitude. Plaintiffs only witness Sulleman Ex. 7 did not state, as to, how much loss was suffered by the plaintiff due to various acts and omissions by the defendant. Sulleman deposed that various changes were made in the original plan and hence the work was held up and that defendant's attitude increased overhead expenses. Plaintiff did not examine any of his labourers or sub?contractors to support him. Sulleman admitted in cross-examination that lie had Supervisor Yousauf to supervise the work at the site and that he got the work done through his labourers. Even Yousaf was not examined. It was not put to defendant Mehrunnissa Ex. 8 in her cross-examination if the plaintiff had suffered a loss of Rs.1,00,000 due to any of her acts of commission or omission. I therefore, find this issue in the negative. Issue No.4: The onus of this issue was on defendant Mehrunnisa Ex. 8 who did not state if the additional work undertaken by the plaintiff was not with her instructions. This issue is therefore found ink carried out n accordance the negative. Issue No.5: P.W. Sulleman Ex. 7 deposed that after completion of the work the eleventh bill Ex. 7/2 was submitted for payment, under letterEx.7/3. That the bill Ex. 7/2 was certified and verified by the architect, under the letter Ex. 7/4. P.W. Sulleman added that in spite of this, no payment was made. In her written statement, the defendant did not deny contents of paras. 7, 8. 9 and 10 of the plaint. Para. 8 of the plaint shows that eleventh and final bill was submitted by the plaintiff for Rs.77,394.84Ps. but its amount was reduced to Rs.70,46030Ps. by the architects, under a letter 18-12-1974. After having admitted all these facts, it was not proper on the part of the defendant to withhold payment of the aforesaid bill. Moreover, the amount of the said bill was reduced by the architects whose decision was final, conclusive and binding upon the parties as per para. 16 of the agreement Ex. 7/1. I, therefore, find this issue in the affirmative. Issues Nos. 6 and 7: In view of my findings on the above issues, I am of the view that the plaintiff is entitled to have from the defendant the amount of the final bill, as corrected by the architects, I, therefore, decree suit of the plaintiff against the defendant for realisation of RS.70,460.30Ps. with proportionate costs I and with interest on the decretal amount at 12% per annum from 11-4-1974 till the date of recovery. M.Y.H./S-435/K.??????? ?????????? Suit decreed.