P L D 1968 Lahore 923 (PLP)

2. The facts, which gave rise to this appeal may be briefly narrated here. The respondent‑firm had entered into a contract with the appellant Government for the construction of a Girls High School at Wah Cantonment. The contract was signed by the contractor on 26‑8‑1954, and was authenticated by the Accepting Officer on 13‑9‑1954. The period fixed for the con struction of the building was six months from the date of the first written work order and it was stated in the terms of the contract that time was of the essence of the contract. The con tractor failed to complete the work within the specified time. The date of the completion of the contract, as given in Exh. A‑2 was 3‑5‑1955. The contractor failed to complete the work, and the time was extended from 16‑6‑1955 to 3‑7‑1955. A further extension was given on 29‑9‑1955 till 15‑11‑1955. It would be seen that there was a gap between 3‑7‑1955 and 28‑9‑1955, and during this period, the Government did not take any action to cancel the contract. The Government ultimately cancelled the contract, and the unfinished portions of the building were completed by some other contract or. The terms of the contract, provided for the appointment of an Arbitrator and in pursuance of the arbitration clause, Mr. A. Qureshi, Deputy Director of Works in the Branch of Engineer‑in‑Chief was appointed as the sole Arbitrator for the decision of this dispute. A question arose before the Arbitrator, as to whether the time was of the essence of the contract in this case. The Arbitrator, acting under section 13, clause (b) of the Arbitration Act. referred the matter for the opinion of the Senior Civil Judge, Campbellpur, since at the relevant time, Wah Cantonment was in the area of Campbellpur District. Mr. Gul Muhammad Qureshi, Senior Civil Judge, Campbellpur, gave his opinion on 22‑5‑1958, to the effect that time was not of the essence of the contract. On 20‑6‑1958, the Arbitrator gave the award holding that Pakistan was responsible for paying a sum of Rs. 35,128‑7‑0 to firm Lodhi House on account of the breach of contract. The award vas filed before the Senior Civil Judge, Campbellpur, for being made the rule of the Court, but he expressed his inability to proceed with the case on the ground that he had already expressed his opinion on the question of law referred to him by the Arbitrator the learned District Judge transferred the case to his own file and struck the following issue :‑‑‑ (1) Whether there is any sufficient ground for setting aside the award in question?

3. By order, dated 1‑6‑1959, in Civil Miscellaneous No. 740 of 1959, the High Court transferred the case from the Court of District Judge, Campbellpur, to the Court of Senior Civil Judge, Rawalpindi, on an application made by the appellant. The case came up for hearing before the Senior Civil Judge, Rawalpindi on 15‑6‑1959, when none of the parties appeared. Notices were issued to the parties for 1‑9‑1959. The counsel for the parties appeared on that date and the case was adjourned to 21‑10‑1959, for the evidence of the parties on the issue, which had already been framed. The counsel for Pakistan made a statement on 21‑10‑59 that he had no evidence read of with him and asked for an adjournment to enable him to produce the evidence. The learned Senior Civil Judge rejected this prayer, because no reason had been advanced for the non‑production of the evidence on the date fixed by the Court. In view of this order of the Court, the counsel for the respondents made a statement that he did not want to produce any evidence. The case was then adjourned to 9‑11‑1959 for arguments. The counsel for Pakistan again did not appear on that date. The Court, however, in its order, which was passed on the same day, examined the legal argument raised by Pakistan that a reference on the question, as to whether the time was of the essence of contract, could not be made under section 13 (b) of the Arbitra tion Act as it was not a question of law, and held that the question referred to civil Court under section 13, clause (b) was a question of law and could be referred as such. He also held that the answer returned by Mr. Gul Muhammad Qureshi to the reference made to him was correct, and that in view of the facts of the present case, it could not be held that the time was of the essence of the contract. The learned Senior Civil Judge, in this connection, relied on the case of Shumbhulal Panalal Vaish v. Secretary of State (A I R 1940 Sind 1) and holding that the award was correctly made, passed a decree in favour of the respondent for Rs.35,128‑7‑0, Pakistan thereafter filed the present appeal in which it attacked the correctness of the findings of the learned Senior Civil Judge on the question that the time, in this case, was not of the essence of contract.

4. The impugned order, in this case, was made on 9‑11‑1959 and an application for a copy was made on 19‑I1‑1959. The copy was received by the appellant on 2‑12‑1959. The appeal was filed on 8‑3‑1960, and after taking into account the period spent in the preparation of the copies, it appears to be barred by time by 21 days. An application was moved on the date of the institution of this appeal for extension of the time on the ground that the file had been moving in the various Ministries, and it was on 3‑3‑1960, that Mr. Manzur‑ul‑Haq Khan, an Assistant of the office of the Engineer‑in‑Chief, G. H. Q., Rawalpindi, who has sworn an affidavit in support of the petition for condonation of delay, was sent to Lahore to brief the counsel. According to the affidavit, he contacted the counsel on 7‑3‑1960, and the appeal was filed on 8‑3‑1960. The application for condonation of delay does not appear to have been noticed when on 6‑4‑1960, the present appeal was admitted to a hearing. Even subsequently this applica tion was not fixed by the office for orders of a Bench. No notice of this petition appears to have been issued to the respondents. I have, therefore, at the outset to consider the question, whether, the delay of 21 days in filing the appeal should be condoned. I find from a perusal of the affidavit filed in this connection, that no sufficient cause has been shown by the appellant for condo nation of delay. `Sufficient cause' has always been considered to be something beyond the control of a party. The delay in this case occurred owing to the consideration of the matter by various Departments. The file was changing bands from one department to the other and the Government was in full control of the file and if good care had been shown, there was nothing to prevent the Government from filing the appeal in time. If dewy is condoned in such a case, it would amount to putting a premium on the departmental delays and to place the Government in a position of advantage vis‑a‑vis, a citizen to whom a valuable right has accrued by the lapse of the time prescribed for filing the appeal. It was held by the Supreme Court in the case of Alaullah Malik v. Custodian Evacuee Property (P L D 1964 S C 236 p. 255) as under:‑-- "Under section 5 of the Limitation Act, there has to be a finding of sufficient cause. In pre‑partition India, sufficient cause had been defined as circumstances beyond the control of the party and I do not know of any case, wherein this definition of sufficient cause had been rejected, However, at least in determining sufficient cause, while dealing with the same expression in Order IX, rule 8, C. P. C., and Order IX, rule 3, C. P. C. the Courts had been lenient and had been condoning some negligence, i. e. negligence to the extent to which it is regarded as human though they never condoned gross negligence. At the same time, the Court had always been strict in demanding proof of sufficient cause for every day, which had expired after the ordinary period of limitation." It appears from the affidavit of Mr. Manzur‑ul‑Haq Khan that the file remained with the Ministry of Law from 26‑1‑1960 to 8‑2‑1960 on which date the limitation had already expired. After the expiry of the limitation, a reference was again made to the Ministry of Law and the file again started traveling from one department to another. There is no explanation, as to what were the circumstances under which the Ministry of Law had kept the file from 26‑1‑1960 till 8‑2‑1960. Again, Mr. Manzur ul‑Haq Khan was deputed on 3‑3‑1960 to brief the counsel for the purposes of this appeal. He contacted Sh. Abdul Haq and Mr. Muhammad Bashir on 7‑3‑1960, and there is no explanation of the fact, as to what was being done between 3‑3‑1960 to 7‑3‑1960.

5. I, therefore, find that no sufficient cause has been shown for the condonation of the delay in this case and I dismiss Civil Miscellaneous No. 596 of 1960.

6. The above finding should ordinarily conclude the case, but I would like to say something on the points raised before me by Sh. Abdul Haq, the learned counsel for the appellant. S. Abdul Haq attacked the order of the learned Senior Civil Judge on the ground that he had dealt with the appellant harshly and that he should at least have given one more chance to the Government before depriving them of the opportunity to produce evidence. The Court had passed an order on 1‑9‑1959 directing the parties to produce their evidence on 21‑10‑1959. There was a period of full one month and 20 days at the disposal of the Government to summon their evidence, but no steps were taken in that direction. No explanation is forthcoming from the record for this failure. The learned Senior Civil Judge was, therefore, in my view, quite right in refusing to exercise his discretion against the Government, when no cause for delay had been shown to him.

7. Sh. Abdul Haq then dealt with the main attack made on the impugned order. He said that it had been mentioned in the contract itself that the time was of essence of the contract and therefore the decision of the Government in canceling the contract and giving it to some other contractor was quite right. I have stated above that the Government had given two ex tensions, in this case, on the application of the respondents. Mr. Gul Muhammad Qureshi, Senior Civil Judge, Campbellpur, who answered the reference made by the Arbitrator, mentioned in his opinion that there were other clauses in the contract from P. A. F. W. 2249, which negative the conclusion sought to be deduced from clause 9 of the above contract which said that the time was of the essence of the contract. He referred to the provisions of the same clause that the contractor was bound to suspend the execution of the work, or any part thereof when called upon in writing by the Engineer‑in‑Chief to do so, and he could not re‑start the same, unless he was so directed by the same Officer. In case of the re‑starting of the work, the contractor was to be allowed an extension of time equal to not less than the period during which the work remained suspended. Mr. Gul Muhammad Qureshi also referred to clause 7 of the contract, under which the accepting Officer could deviate from the original contract either by addition to or by deduction from the work so described. He also referred to clause 50 of the terms of contract, which said that if the contractor fails to complete the work and clear the site on or before the date fixed for completion, he shall without prejudice to any other right or remedy open to the Government on account of such breach, be liable to pay as compensation an amount, equal to one per cent. of the contract sum, or of the measured value of the work order. Mr. Gul Muhammad in this connection, referred to the case of Shambhulal Panalal Vaish v. Secretary of State on which the learned Senior Civil Judge, who passed the impugned order also relied. This was a case, in which the appel lant had entered into two contracts with the P. W. D. in Sind to excavate a distributary and to fill up a gap on the banks of a distributary. One of the contracts was terminated by P. W. D. on the .ground that he had not completed the work in time. The conclusions of the Court have been summed up in head note at page I in the following terms: "The question, whether or not time is of the essence of a contract is a question of the intention of the parties to be gathered from the terms of the contract. Where there is an express provision that time is of the essence of the contract and at the same time provisions for extension of time in certain contingencies and for the payment of a fine or penalty for every day or week the work undertaken under the contract e remains unfinished on the expiry of the time provided in the contract, such provision is inconsistent with time being of the essence of a contract, and would be calculated to render ineffective an express provision in a contract to that effect. In such a case, it cannot be said that it was intended that time should be of the essence of the contract. This principle applies to P. W. D. contracts." In the case before me, notwithstanding the provision that the time was of the essence of the contract, there were other clauses, which indicated that the intention of the parties was not to strictly enforce the clause regarding time. The clauses, regarding suspension of the work, and the payment of penalty for the non performance of the contract in time, clearly indicate that the parties never intended that the time was of the essence of the contract. I may also refer here to the case of Muhammad Shafi v. The Lahore Improvement Trust (P L D 1959 Lah. 1). The petitioner in the precedent case had been transferred a plot of land by the Lahore Improvement Trust on the condition that he had to build on it within 18 months. After the expiry of 18 months, the Trust allowed further time to the petitioner fixing a dead line by saying that no further extension will be allowed. The Government then intervened and on its direction, the Trust again allowed time to the petitioner for building on the plot. After this extension was granted, the Trust called upon the petitioner to pay certain sum by way of composition F fee for revival of the bargain, which according to the Trust had lapsed, because of the failure of the petitioner to build _ within the time specified by the Trust. It was held:

"Clauses of the contract entered into between the petitioner vendee and the respondent‑vendor (Improvement Trust) did not express in an unmistakable language an intention to make time of the essence of the contract. In such situations, every party's general right to have the contract performed within a reasonable time remains unaffected and in case of unnecessary delay, the other party may give the party at fault notice fixing a reasonable time after the expiration of which, he will treat the contract as at an end." Section 55 of the Contract Act is based on the equitable doctrine that equity will disregard the letter of the contract C in ascertaining, what the parties to the contract really and in substance intended. The doctrine contained in section 55 of the Contract Act was expounded by their Lordships of the Privy Council in Jamshed Khoda Ram v. Burjoji Dhunjebhai (43IA26). It was observed by their Lordships as under :‑‑ "Prima facie, equity treats the importance of such time‑limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of law, the contract has not been literally performed by the plaintiff as regards the time limit specified. This is merely an illustration of the general principle of disregarding the letter for the substance which Courts of Equity apply, when for instance, they decree specific performance with compensation for a non‑essential deficiency in subject‑matter."

8. In view of the circumstances of this case, I find no sub stance even in the latter contention of the learned counsel for the appellant and dismiss this appeal. Since the respondents have not appeared in spite of notice, there should be no order as to costs. K. B. A. Appeal dismissed.