P L D 1979 Peshawar 43 (PLP)

ABDUL HAKEEM KHAN, C. J.-The Government of N.-W. F. P. feels aggrieved by the judgment and decree, dated 9-2-1978, of the District Judge, Mardan, upholding the judgment and decree dated 9-2-77 of the Senior Civil Judge, Mardan, in favour of Sultanuddin, plaintiff, for the recovery of Rs. 6,100 and has moved the present Second Appeal.

2. It is contended on behalf of the appellant that the findings of the two Courts below, although concurrent, are contrary to the law and the accepted principles of appreciation of evidence. Onus lay heavily on the respondent to prove that he did not tender and on this point mere denial was not enough. The burden was all the heavier when he concedes that call deposit was supplied by him, alongwith a signed application for procurement of the tender form.

3. Learned counsel for the plaintiff-respondent on the other hand vehemently urged that the present was a Second Appeal and there was a concurrent finding of fact and that there are as many as three decisions of the Peshawar Bench, namely in Qamaruz Zaman v. Sher Afzal Khan and another (P L D 1966 Pesh. 119), in Yahya Gul and another v. Yahya, Jan and another (P L D 1968 Pesh. 122) in Mst. Bibi Mukhtiar v. Mst. Amrezan and another (P L D 1968 Pesh. 169) in support of the proposition that such finding, however gross and inexcus able, cannot be challenged in the Second Appeal. Attention in this behalf has also been invited to in Mst. Allah Rakhi v. Mst. .Sakina Bibi and others (P L D 1969 Lab. 168) and an authority of the Supreme Court Pathana v. Mst. Wasai (P L D 1965 S C 134) wherein their Lordships, while dealing with the provision of section 160(1) (c) of the C. P. C. observed that a substantial error or defect in procedure will fall within the purview of clause (c) ibid and that a slight error in reading evidence would not be consequentnial if the correct position had been present to the lower Appellate Court's mind and main line of reasoning was not thereby materially affected.

4. The learned counsel for the appellant submits that the authorities relied upon by the learned counsel for the plaintiff-respondent no longer hold the field. There is a Division Bench Authority from Lahore in Raja Mohammad Afzal Khan v. Ch. Manzoor Elahi and 6 others (P L D 1975 Lab. 1276) wherein their Lordships have, in relying upon an earlier judgment of Mohammad Yaqoob Ali, JJ. (as his Lordship then was) in Mst. Fatima v. Khuda Bakhsh and others (P L D 1959 Lab. 826) came to the conclusion that when there was no proper evidence in support of the finding of the First Appellate Court or evidence had been misread or misrepresented, the Second Appellate Court is entitled to review the finding. In this view their Lordships are also fortified by two authorities of the Supreme Court, namely, Nazar Mohammad and another v. Mst. Shahzada Begum and another (P L D 1974 S C 22) and Mst. Bihi Jan v. Habib Khan and another (P L D 1975 S C 295).

5. Before, 1 proceed further I should like to advert to the judgment of the Lahore High Court in Mohammad Afzal v. Manzoor Elahi wherein the finding of the Election Tribunal was in question before their Lordships, the appeal being in pursuance of the provisions of section 64(3) of Ordin ance XIII of 1970, which gave the right of appeal against the decision of the Tribunal to the High Court on "any of the grounds enumerated in section 100 of the Code of Civil Procedure, 1908". Mushtaq Hussain, J. (as his Lordship then was) observed that his Lordship bad disagreed with the finding of the Tribunal for the following reasons-- (a) the findings were based on no evidence; (b) conclusions were arbitrary, without foundation and against law; and (c) important evidence has been excluded from consideration. It was in this context that his Lordship referred to Mst. Fatima v. Khuda Bakhsh and others (P L D 1959 Lab. 826) and quoted therefrom what follows:- A case of finding without evidence or of misrepresentation of evidence covered by the third exception, however, stands on a different footing. If the Judge believes that there is some evidence on the record from which he has drawn conclusions of fact and in fact there is no such evidence, it must follow that there in no proper finding which may be binding on a Court of second appeal. Such an error will clearly fall within the scope of clause (c) of section 100, C. P. C. viz. a substantial error or defect in procedure which may possibly have produced an error or defect in the decision of the case upon merits. Order XX, rule 4, C. P. C. provides that judgments of Courts other than a Court of Small Causes shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Similarly Order XLI, rule 31, C. P. C. provides that a judgment of the Appellate Court shall state- (a) the points for determination ; (b) reasons for the decision. The reasons for the decision on the points involved in the determination of an appeal must of course be based on evidence on the record and the provisions of law applicable to them. If there be no evidence in support of a decision or the evidence is misrepresented, it could be said that there were no reasons for decision within the scope of clause (c) of Order XL1, rule 30, and Order XX, rule 4, C. P. C. and it will warrant interference with findings of fact in a second appeal. It may thus be safely concluded that if there be no proper evidence in support of a finding by the first Court of appeal, or the evidence is misread or misrepresented, the finding, though one of fact, is vitiated and a Court of Second Appeal is entitled to review it. But this is the only exception which is tenable under law and all other exceptions referred to above are clearly unwarranted by the provisions of sections 100 and 101, C. P. C. It will be seen that ratio decidendi is that in all cases where no evidence in. support of a decision is forthcoming or the evidence is misread or misrepresented, one shall have to assume the absence of reasons for decision a requitement laid down by clause (c) of Order XLI, rule 30, as al Order XX, rule 4, C. P. C. and as such an interference by this Court would within the scope of clause (c) of Order XX of the C. P. C.

6. In the instant case reference to the plaint will show that Sultanuddin plaintiff-respondent, clearly asserted that he had a mind to tender for the work "Stone pitching on earthen Bund for the protection of Swerian and Rashid Abad villages in Mardan Tehsil "and that since his pre-occupation did not allow him to be present personally he, by way of abundant caution, submitted an application, alongwith a call deposit and further instructed that if he was to come back in time, he will be procuring the tender personally but he B could not turn up on that date. After some days when he came back to the office so as to get back his money, he was surprised that on the basis of the call deposit despatched by him, some other person procured a tende form and filed it in his name in pursuance of a conspiracy. It will be seen that in the plaint he did not name the person through whom the application and the call deposit were sent and also omitted to mention to whom those were delivered by his messenger. In reply the Government submitted that many contractors came for tenders and submitted petitions and the plaintiff-respondent had submitted his petition through Amanullah and tender form was given to him. The contention of the plaintiff-respondent that he did not sign the tender form was denied and it was said that for clarification photostat copy of the same will be produced and that an enquiry had revealed that the plaintiff-respondent has fabricated the story so as to avoid justified forfeiture of the call deposit in the sum of Rs. 6,100, for he failed to sign the agreement in accordance with the tender. It may be elaborated here that the call deposit was for Rs. 6,100 and it is admitted that it could be forfeited by the Government if the person who was given the contract was not to undertake the work. It will be seen that the main stay of the plaintiff-respondent is that since he had not filled in the tender form himself; had not signed it either; and some body else had done alt that in furtherance of a conspiracy, he was not a contracting party and as such his call deposit could not be forfeited.

7. Two issues that were settled in the case are:- (1) Whether the plaintiff is entitled to recover Rs. 6,100 from the defendants deposited as earnest money for tender in question? (2) Whether the plaintiff has got a cause of action? As has been observed by the learned Trial Judge, the onus of these two issues was upon the plaintiff to prove and it remains to be seen whether he has been able to discharge that onus. It will be appropriate to preface the discussion on the point with the observations that it was the bounden duty of the plaintiff-respondent to show that he gave the call deposit and application to his messenger and that the latter delivered both to this or that Officer or official of the Government. Furthermore, the sianatures on the application for tender and also the tender form were not his. In any case it was his duty to explain the enigma as to how his call deposit fell into the malacious hands and that it was such hands which utilized it and that i was certainly not an action of a person who was acting under his instruction or in concert with him.

8. As already observed he cared not to disclose the name of his messen ger who carried his application for tender form and call deposit is his plaint. He only disclosed the name of Lajbar to be his messenger for the purpose when he was examined on 17-3-1976 as the 7th and last witness for the plaintiff. He has not denied his signatures on the original of Exh. P. W. 3/2, categorically. His assertion in that behalf is just inferential when he say that he wrote the application on a printed pad paper while the fact of that matter is that the original of Exh. P. W. 312 is not on a printed pad papers His witness, Lajbar acted similarly when he projects that the application for the form was written on a printed pad paper and keeps mum about the signature on the original of Exh. P. W. 3/2. The only witness who has disputed the signature on Exh. P. W. 3/2 is Rehmat Khan (P. W. 4) but his statement is inconsequential when I see that he could not identify the signatures of the plaintiff-respondent on the original of Exh. P. W. 3/6, which the plantiff- respondent, it may be mentioned, admits to be from him.

9. There is no evidence on the record to show and there is no categori cal assertion of the plaintiff-respondent either, that signatures on the tender E form Exh. P. W. 3/1, were not his. In case these signatures on the tender were forged the opinion of the handwriting expert could be invited. The mere fact that the plaintiff-respondent was not seen near or in the office of the Executive Engineer, P. W. D. would not establish that the signatures on the tender were not that of the plaintiff-respondent. In this context one cannot lose sight of the following statement of Shamsur Rehman (P. W. 3) that the practice of the Department would not rule out the possibility of a person, submitting tenders on behalf of the real contractor. It reads:- I am serving as Head Clerk at various places since January, 1956 upto date. A regular register is maintained regarding the issuance of tender forms. The acknowledgement. regarding the receipt of tender form is not obtained from the contractors on such register. Before issuing the tender form it is made sure by the Department that the contractor is not black listed, that he is holding a valid licence and that there is no demand from the side of Income-tax Department against the Contractor. This last verification is done in rare cases especially when the Department receives such intimation from Income Tax Department. It is correct that before issuing the tender form we make sure that the conditions are duly complied with by the contractor as given alongwith notice inviting tender. It is correct that the tenders are put in a box which is locked and the lock is opened by the Executive Engineer himself. It is not necessary that all the contractors should be present before the Executive Engineer at the time of opening the box. Few which can easily be accommodated in the office are permitted to enter. It is not necessary that the contractor offering lowest rate should be shown the tender. Lowest bid is announced before the persons present. From the above assertion it would appear that in any case the presence of the contractors does not appear to be necessary. Another part of the statement of this witness is also important. He submitted:-- It is not necessary that the said application must be signed in presence of Head Clerk. We do not keep specimen signatures of the contractors for comparison on such occasion. The tender form of the plaintiff had contained as an enclosure (sic). A call deposit from i.e. a Bank Draft for the amount of Rs. 6,

100. The call deposit number was No. 023530/70, dated 9-9-74 from Sarhad Bank, Mardan from Sultanuddin. If any tender is not supported by call deposit form it is not entertained. From the above it would be obvious that it is not necessary that the tender form or an application for the same should be signed in the presence of the officials. In this respect a reference to the following statement of Shamsul Qayyum (P. W. 1) will be more enlightening. He stated:- The tender forms are filed by the Contractors in secret and the department cannot see as to who signs them and fill them up prior to opening. For the apply of tender forms the contractors who wishes to file tender apply for the issuance of forms and they are supplied the forms. The forms can be supplied to him personally or through his nominee. It is not even necessary that the contractor should apply in writing he can request verbally. In this context I should like to mention that though Lajbar (P. W.) says about the delivery of the application !o one official, Sultan Khan, who has not been produced, he has not said a word about the delivery of the call deposit notice. Now this Lajbar, according to Rehmat Khan works for the plaintiff-respondent and it was his duty as also of the plaintiff-respondent, to have explained how the call deposit got attached to the tender form Exh. P. W. 3/1. On the point that the call deposit was attached to the application statement of Shamsul Qayyum is conclusive.

10. In the absence of any evidence, regarding bias, or conspiracy of this or that person, it will be in the ordinary course of events that tend form was filed either by the plaintiff respondent himself or with hi y blessings. How could call deposit of Rs. 6,100 be risked by some body else for the benefit of the plaintiff-respondent. It will be natural to assum that it was the plaintiff-respondent who got it done and he on second consideration felt that it was not a profitable contract. 11. do the view of the matter that I take, I feel that there has been gross misreading of evidence brought on the record by the two Courts below and that the plaintiff-respondent has singularly failed to discharge the onus to prove the allegations, contained in the plaint.

12. No other point has been pressed. For the reasons, I will accept this appeal and set aside the decrees of the two Courts below and dismiss tire plaintiff-respondent's suit with costs throughout. S. A. H. Appeal accepted.