2017 PLP 896 (CLC)

MUHAMMAD YOUNIS THAHEEM, J.

This civil revision petition is directed against the judgment and decree dated 17.02.2014, passed by learned Additional District Judge-I, Bannu, whereby appeal filed by petitioners/plaintiffs against the judgment/decree dated 24.09.2012, rendered by learned Civil Judge-VI, Bannu, was dismissed.

2. Brief facts of the case are that plaintiffs being Government Contractors were given contract for the Construction of Government Girls Middle School Rasool Khan Chakk Dadan, District Bannu, vide work construction Order No.8 dated 27.10.2007 and said construction work was completed accordingly. The Provincial Government due to high rise in the prices of building materials given relief package to government contractors vide notification dated 30.12.2015 in the entire province and the claim of payment for escalation amount Rs.1.068 million was sent to high ups for approval according to letter Ex.PW1/1 (67 pages) but the plaintiffs were not given relief of escalation amount as per revised statement on the application of plaintiffs, which was prepared and forwarded to defendants Nos.1, 2 and 4, so the plaintiffs/petitioners were forced to institute the instant suit. The respondents/defendants were summoned who filed written statement and in the light of divergent pleadings of the parties, issues were framed and both the parties led their evidence which they wished, learned trial Court after conclusion of trial and hearing arguments, dismissed the Suit of plaintiff vide impugned judgment dated 24.9.2012. The present petitioners filed regular appeal against the same judgment and decree of learned trial Court but same was also dismissed vide impugned judgment and decree by the appellate Court on 17.02.2014, hence the instant revision inter alia on the grounds therein.

3. Arguments heard and record perused.

4. From the perusal of record it reveals that admittedly the plaintiffs contractors were given a project for the construction of Government Girls Middle School Rasool Khan Chak Dadan, District Bannu being their bid as lowest one, according to the estimated cost of Rs.31,20,000/- on CSR 1999 by the Deputy Director (R & B) Works & Services Department, Bannu) under Notification No.BOI/1-7/2005-2006/FD(CSR) dated 30.12.2005, which after completion by the plaintiffs, was handed over to the respondents/defendants and the petitioners/plaintiffs also moved an application to the high-ups for the grant of escalation amount according to revised detail cost with added escalation amount but deaf ear were given to the prayer of petitioners, who served legal notices to the respondents/defendants for the payment of escalation amount same are placed on record as Ex.PW.3/2 to Ex.PW.3/5.

5. Record further reveals that the Provincial Government had issued notification dated 30.12.2005 placed on record as Ex.PW.1/2 for the payment of escalation amount to the Contractors as per schedule of rates for the year 1999 due to increase in the prices of building materials, like Cement, Steel, labour etc with effect from July 2005, onward. Plaintiffs produced one Waheed Ullah Record Clerk, C&W Department Bannu, who produced revised detail cost estimate bill which is placed on record as Ex.PW.1/1, according to which the estimated cost of main building of GGMS civil work is Rs.35,33,843/-, for Internal/External Water Supply is Rs.1,34,734/-, and for Internal Electrification is Rs.1,70,000/- and the total of which is Rs.3838577.00, which has been received by the plaintiffs while escalation amount calculated by the Assistant Director, Building Bannu, as Rs.1068353.00, has yet not paid. Similarly the said witness produced escalation amount against Labour, POL, Cement (EAN Concerete) ratio 1:4:8, Cement RCC 1:2:4, Cement PCC Ratio 1:3:6, Cement in Bricks 1:6, Cement Plaster work 1:5.

6. As per record, report about claim of the plaintiffs for escalation amount was submitted to the Deputy Director, Bannu for sanction in the light of notification about payment of escalation amount No.BOI/1-7/2005-2006/FD(CSR) dated 30.12.2005 placed on record as Ex.PW.1/2 with effect from 1st July, 2005 and onward works.

7. The plaintiffs produced Muhammad Rustam Clerk P&D, Branch Education Office, Bannu as PW.2, who produced the record about revised PC-1 detailed cost estimate for the construction of incomplete building of Government Girls Middle School Rasool Khan Chak Dadan, District Bannu which is placed on record as Ex.PW.2/2. The plaintiff Sadeeq Khan appeared as PW.3 and supported his assertions made in the plaint, who stated during examination in chief that:

8. He further stated that he completed the abovementioned work according to the CSR 1999 schedule rates and no escalation amount has been paid to them. From the trend of cross-examination it transpires that the contract for construction of Project of Government Girls Middle School Rasool Khan Chak Dadan, District Bannu, is not disputed and the only dispute between the parties is non-payment of escalation amount.

9. It is further admitted that the Contractors i.e. plaintiffs have received their deposited security and "No Demand Certificate" has been issued to them. This argument of the respondents that the plaintiffs have received their security back and had submitted "No Demand Certificate" with the C&W Department, so are not entitled for the payment of escalation amount, is not tenable. In similar circumstances, the Hon'ble Supreme Court has enunciated the rule in Civil Petition Nos.646-P, 647-P of 2013 and CP No.79 of 2014. The rule enunciated is reproduced below:

"It was also argued on behalf of the province that the Contractor had given a certificate that he has no claim against the province and therefore, contractor could not raise claim being stopped, is misconceived".

10. The second argument of respondents that as the final authority for escalation is DDWP, which is a committee which approves the escalation amount to a Contractor and so DDWP has not approved the escalation amount of petitioners, therefore, their suit was not maintainable and rightly dismissed by the learned trial Court and that judgment was correctly maintained by learned appellate Court below is not convincing, as suffice it to say that petitioners are struggling for the payment of escalation amount from pillar to post since the completion of construction work 2009 and were forced to file the instant civil suit in the year 2011 as remained deprived from the relief from DDWP, so this argument of learned counsel for respondents is also misconceived that when DDWP has not approved the claim of escalation amount of petitioners, thus their suit is not maintainable, is also misconceived.

11. The defendants produced Fahimullah Sub-Engineer C&W Department as DW.1, who during examination in chief stated that the tender of plaintiffs for the construction of Government Girls Middle School Rasool Khan Chak Dadan, District Bannu, was accepted due to low rate and after completion of this project, the constructed building was handed over to the client Department i.e. Education Department concerned and the plaintiffs had also received the deposited security. This witness DW1 during cross-examination admitted that he has seen revised estimated cost as Ex.DW.1/1, which is letter of recommendation from his department for the payment of escalation amount to the plaintiffs placed on record vide letter ADP No.59/50162(2007-08) for payment of Rs.1068353/-. He further admitted that due to high rise in the prices of construction materials, Government pays the escalation amount to the Contractors. This witness volunteered that for the payment of escalation amount, final approval is granted by the higher authorities of Government of Khyber Pakhtunkhwa.

12. From the perusal of entire record, it divulges that the learned trial Court while deciding Issues Nos.1, 2, 3 and 4 based its findings on the interpretation of notification dated 30.12.2005 (Ex.PW.1/2) by holding that the escalation was demanded for remaining portion of the project before July, 2005 and work to be continued after 1st July, 2005. So far better comprehension notification in Urdu is reproduced below:- From the plain reading of the said notification dated 30.12.2005, it transpires that the escalation amount was to be paid on the building materials like, Cement, Steel, Labour, etc with effect from 1st July, 2005 onward and this finding was affirmed by the learned appellate Court also. Both the learned Courts below failed to appreciate and interpret the above notification in its true perspective and had non-suited the plaintiff, so the judgments of fora below are the result of misreading and non-reading of evidence on record and wrong interpretation of notification dated 30.12.2005.

13. So according to the evidence on record, it is proved that the plaintiffs vide Work Order No.8 dated 27.10.2007 were allowed for remaining construction work of Government Girls Middle School Rasool Khan Chak Dadan, District Bannu, which was completed and handed over to the C&W Department and the C&W Department handed over it to their client department i.e., Education Department before 2010 2009 (EXPW2/2).

14. The petitioners/plaintiffs were paid the amount except escalation amount and the case for approval for escalation amount was sent to the high-ups for approval but till now that has not been decided either approved or not approved, so the plaintiffs have cause of action and locus standi, who were deprived from the relief provided in the shape of payment of escalation amount due to high rise in the prices of building material but both the learned Courts below had not adverted to the same aspect of the case.

15. For what has been discussed above, the judgments and decrees of both the Courts below do not sustain in view of above and the evidence on record, hence are set aside and the suit of the plaintiffs is preliminary decreed for the payment of escalation amount with effect from 27.10.2007 along with profit at the rate of 6% calculated by the learned trial Court. However, the plaintiffs are directed to deposit court-fee according to the decretal amount calculated during final decree according to law. ZC/272/P Revision allowed.