1980 PLP 2183 (CLC)

A. G. Choudhry for Respondents. Date of hearing : 23rd September, 1979. The facts giving rise to this first appeal are that the appellant, M/s. Suleman and Company entered into a contract with respondent No. 2, Pakistan Atomic Energy Commission to construct certain buildings for the Commission. This contract was entered into by respondent No. 3, Product Incharge, Nuclear Institute for Agriculture and Biology; Faisalabad, on behalf of the Commission. According to the appellant, 80 percentum of the construction work had been completed when he was stopped from doing any more work. The appellant, there fore, made an application, under section 20 of the Arbitration Act, 1940, for the reference of his dispute with the said respondents to the arbitra tion in terms of clause 62 of the agreement relating to the construction of the buildings. In that application he also impleaded the Islamic Republic of Pakistan as respondent No.

1. This respondent is the first respondent in the present appeal also.

2. The application was opposed by the respondents contending that as the petitioner had persistently and flagrantly neglected his obligations under the contract the Commission was compelled to complete the remaining work at his own risk and cost. This action, according to the respondents, was taken under clauses 40 and 58 of the agreement and, therefore, his application was liable to be rejected.

3. The Civil Judge, who heard the application, framed the following issues for determination :- (1) Whether the petitioner has a right to claim arbitration ? O P P. (2) Relief. No evidence was produced by the parties on the said issue. However, after having the completed work measured by a Local Commissioner and hearing the parties counsel the learned Civil Judge decided that according to clause 62 of the agreement only those matters were to be referred to arbitration the decision of which was not specially provided in the conditions of the agreement. According to him the contract of the appellant had been terminated under clause 40(2) of the agreement which they were justified to do. The learned Civil Judge, therefore, dismissed the application with the following direction "However, according to measurement done by the Local Com missioner in the present petition on 28th December, 1976, the respondents authorities arc directed to arrange for the payment of the amount. according to the prescribed and agreed rates within three months after deducting the amounts of bills already paid by the respondents to th a petitioners. The petitioner is also entitled to lift his entire material lying at the site except the supports which are made for the cons truction of the building. The cost of the supports is to be borne by the respondents and after estimate it is to be paid to the petitioner along with the value of work completed by him."

4. Feeling aggrieved by the order of the learned Civil Judge, the appellant filed a revision petition before the Additional District Judge, Faisalabad, which was dismissed by him by endorsing the view taken by the trial Court. It was thereafter that the appellant filed the present appeal.

5. As indicated at the outset it is the first appeal before me which is directed against the order of the trial Court. The appellant's case is that he filed the revision petition before the learned Additional District Judge due to the mistaken advice of his counsel although he should have filed a first appeal before this Court. According to the appellant, when he came to know of the correct legal position he preferred the appeal in hand. As it was time barred, he also made an application (C. M. No. 3668/C of 1978), under section 14 of the Limitation Act. 1908, for condonation of delay in filing the instant appeal.

6. While dealing with the question of condonation of delay, learned counsel for the appellant contended that it was due to the wrong advice of the counsel who assisted him before the learned Additional District Judge that he made the revision petition instead of filing an appeal. He has sworn to an affidavit in support of the above plea but there is no affidavit of the counsel concerned in this behalf. I am, therefore, not inclined to believe that it was due to the incorrect advice of his counsel that he had gone in revision before the learned Additional District Judge instead of filing an appeal. Even if it is believed that he was wrongly advised by his counsel there is nothing to show that his counsel had rendered the aforesaid advice to the appellant in good faith. It has also been ruled in Ch. Muhammad Sharif v. Mohammad Ali Khan and others (1975 S C M R 259) that the mistaken advice of a counsel is no good ground for entertaining a time-barred proceeding. It is, therefore, not a fit case for condonation of delay, and I dismiss the appellant's petition in the matter.

7. It was also urged by the respondents' counsel that the present appeal is not otherwise competent. Its jurisdictional value as fixed by the appellant is Rs.

200. According to section 18 of the West Pakistan Civil Courts Ordinance, 1962 it should have been filed before the District Judge and not the High Court. This plea of the learned, counsel for the respondents was not contested by the learned counsel for the appellant. I, therefore, hold that the present appeal does not lie in this Court.

8. The order of the learned Additional District Judge shows that he virtually heard the revision petition before him as an appeal and thus the appellant had, in effect, availed of the remedy of appeal, before him.

9. As for the merits of the case, the contention raised by the appellant is that the Project Director concerned (respondent No. 3) did not allow him to use the cement procured for the project in question and, therefore, he could not complete the work in time. No evidence was adduced by the appellant to substantiate this plea. He also did not produce any evidence to show that his contract had not been terminated, to accordance with the provisions of the agreement or that the respondents had not observed the procedure which was required to be followed for withholding the dispute from reference to arbitration. Therefore, even if his appeal is held to be competent, it is without merit.

10. In view of what has gone above, -the appeal is liable to be dismissed with costs, and I order accordingly. K. M. A. Appeal dismissed,