2006 PLP 741 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.-- This appeal has been tiled against judgment of the Lahore High Court dated 30-9-1999 under Article 185(2) of the Constitution of Islamic Republic of Pakistan.

2. Precisely stating facts of the case are that appellant obtained a contract for holding 'Bakar Mandi' within the area of Town Committee, Bhalwal for the period from 1-7-1996 to 30-6-1997 against a sum of Rs.34,00,

000. According to the terms of the lease a sum of Rs.4,08,000 was deposited by the appellant as 10% of the lease money and 2% as security. Besides an amount of Rs.2,78,182 being first instalment for the month of July, 1996 was also deposited by him. It may be noted that according to clause 15 of the agreement, appellant was only authorized to hold 'Bakar Mandi', on every Friday. It so happened that another contractor of District Council, Sargodha instituted a writ petition before the Lahore High Court, claiming that the contract between the Town Committee, Bhalwal and the appellant was not sustainable because he had also obtained a contract for holding cattle Mandi on the same place. As such, stay order was obtained by him, due to which appellant could not hold Mandi after 26-7-1996. Meanwhile appellant's contract had expired on 30-6-1997. On the expiry of contract appellant filed a suit in the Court of Civil Judge, Sargodha for recovery of the following amounts against the respondents: "2% security paid in advance???????????????????????????????????????????????????????????????? Rs.68,000 10% of the contract amount????????????????????????????????????????????????????????????????? Rs.3,40,000 Damages for breach of contract and mental?????????????????????????????????????????? Rs.1,50,000 Agony Total??????????????????????????????????????????????????? Rs.5,58,000 However, trial Court decreed the suit to the tune of Rs.5,54,360 on 25-8-1998. Respondent-Committee preferred an appeal before the Lahore High Court, which has been accepted vide impugned judgment dated 30-9-1999, hence this appeal as of right.

3. Learned counsel for the appellant contended that as the appellant could not hold Bakar Mandi on every Friday according to the terms and conditions of the contract on account of stay order issued by the High Court, he was entitled to refund of the advance of Rs.4,08,000 and damages suffered by him due to mental agony etc. It was also argued by him that learned High Court had intervened in the judgment of the Civil Judge under the impression that perhaps appellant had been holding Mandi on every day whereas stay was granted by the High Court for not holding Mandi only on Friday, therefore, he was not entitled to any relief.

4. Conversely, learned counsel for respondent No.1 contended that appellant himself was not interested for final disposal of the writ petition as he never appeared in Court nor he engaged counsel to contest proceedings. Inasmuch as no request was made by him for vacating the stay order. He had been holding Bakar Mandi on every day except Fridays, therefore, he was rightly held not entitled to the decree claimed for.

5. We have heard both the sides and have also gone through the agreement executed between the appellant and the Municipal Committee, Bhalwal. Condition No.15 of the agreement being relevant is reproduced hereinbelow:--

6. It is not disputed that after 26-7-1996 appellant could not hold Bakar Mandi on every Friday due to stay order by learned High Court. Perusal of record of the case indicates that neither appellant nor the respondent had produced any evidence on record to show that appellant had been holding 'Bakar Mandl' on every day of the week except Friday. However, it is admitted that he could hold 'Bakar Mandl' on 'Fridays' between 3-7-1996 to 26-7-1996 and for the month of July, 1996 he had also paid in advance an instalment of Rs.2,78,

182. Since there was a stay order, therefore, on the Fridays falling after 26-7-1996 he could not hold Bakar Mandl till the time when on 1-7-1997 his contract expired. Thus, question arises that in such a situation whether the appellant was entitled for the refund of amount deposited by him. It is evident from the record that neither Municipal Committee nor the appellant made serious efforts to get the stay order vacated either by making request to learned High Court to pass appropriate orders in this behalf or invoking the jurisdiction of this Court for redressal of their grievance. As such, we are of the opinion that appellant was not entitled to refund of the total advance amount but, in the interest of justice, we feel that Municipal Committee, Bhalwal should have retained 1/3rd and returned 2/3rd to the appellant of the total amount deposited by the appellant. As far as the damages are concerned, no convincing evidence has been brought on record, therefore, he was not entitled for the same.

7. As a result of above discussion, appeal is partially allowed holding that appellant is entitled only to the extent of 2/3rd of the amount deposited by him i.e. 10% of the lease money and 2% security amounting, which conies to Rs.4;08,000 and the Municipal Committee would retain 1/3rd of the said amount. Decree granted by trial Court stand modified accordingly.

8. Appeal disposed of with no order as to costs. S.A.K./Z-27/SC????????????????????????????????????????????????????????????????????? Appeal partly accepted.