2018 PLP 1112 (MLD)

ABDULLAH BALOCH, J.

This judgment disposes of R.F.A. No. 118 of 2009 filed by the appellant Additional Chief Secretary (Development Government of Balochistan and others), against the judgment dated 24th June 2009 (hereinafter referred as, "the impugned judgment and decree") passed by the learned Senior Civil Judge-II, Quetta, (hereinafter referred as, "the trial Court"), whereby the suit for recovery of respondents was decreed.

2. The brief facts arising from the instant appeal are that the respondent filed a suit in the trial Court with the averments that the respondent/plaintiff is a firm of Architect and consultant rendering consultancy services in private as well as Government sectors. It is further submitted by the plaintiff/respondent that contract of consultancy of Civil Work for the project for construction of Women Polytechnic Institution Sariab Road, Quetta was awarded to them by the appellants/ defendants, in this regard an agreement was signed between the parties on 28th May 1998 on consideration of Rs.1,57,800/- per month for a period of 24 months. The respondent/plaintiff further submitted that the respondents have rendering their services of consultancy regularly without any interruption, however, the contractor failed to complete the construction work within the said stipulated period of 24 months, as such, the contractor completed the work, which was taken another period of 11 months and in this regard, the appellants/ defendants requests the respondent/plaintiff for further services of consultancy for a period of 11 months consumed for completion of work by the Civil contractor.

3. It is further the claim of the respondent/ plaintiff that according to the terms and conditions of agreement, the appellants/ defendants were bound to pay at the rate of Rs.1.57,800/- per month for eleven months and the total outstanding amount was Rs.17,35,800/-, but despite several approaches, the appellants/defendants have failed to discharge their liabilities and to pay the outstanding amount to the respondent/plaintiff.

4. The suit of the respondent/ plaintiff was contested by the appellants/defendants on legal as well as factual grounds, wherein vehemently denied the claim of the respondent/ plaintiff.

5. Out of the pleading of the parties the learned trial Court framed as many as following issues:-- "

1. Whether the suit brought by the plaintiff is not maintainable under the law?

2. Whether the plaintiff firm is entitled to the recovery of Rs.17,35,800/- along with the mark-up in lieu of the consultancy fee for the extended period of eleven months?

3. The relief?

6. The parties were directed to produce their relevant evidence, as such to prove its case the respondent/plaintiff produced as many as seven witnesses and also recorded the statement of the representative of the plaintiff.

7. On rebuttal, the appellants/ defendants produced only their representative as DW-1.

8. After going through the evidence and hearing of the parties, the learned trial Court decreed the suit of the respondent/ plaintiff vide impugned judgment referred above in Para No.1.

9. The learned Assistant Advocate General appearing on behalf of the appellants contended that the impugned judgment and decree passed by the learned trial Court suffers from misreading and non-reading of evidence; that the learned trial Court failed to consider facts and circumstances of the case, which has resulted miscarriage of justice; that the suit of the plaintiff/ respondent was bar by time and in this regard objection was raised by the appellants, but the learned trial Court has failed to consider this aspect of the case; that the suit of the plaintiff/ respondent was not maintainable due to non-impleading of necessary parties i.e. contractor because the contractor was responsible for delaying the work, if any delay has been occurred that was on the part of contractor and the appellants were not responsible for the payment of extended period to the plaintiff; that no request was made by the appellants for further services of consultancy to the plaintiff/ respondent in written form and even in view of the revised agreement, he cannot claim for extended period; that according to agreement, the plaintiff consultant was responsible to supervise the overall work of contractor till the completion on a lump sum amount , which was paid to him in term of Rs.57,70,240/-, as such, the impugned judgment and decree passed by the learned trial Court is liable to be set aside.

10. On the other hand, the learned counsel for the respondent strongly opposed the arguments so advanced by the learned counsel for the appellants and contended that according to terms and conditions of the contract, the respondent discharged and rendered its services for the stipulated period i.e. 24 months and on failure of contractor, the work was not completed within the said period and the appellants requested the respondent for further supervision of consultancy work for a another period of eleven months, as such, on the request of appellants, the respondent rendered its services of consultancy for a another period of elven months and the appellants are liable to pay the consultancy charges for the said extended period of elven months; that the respondents prove their case through oral as well as documentary evidence in the trial Court and the learned trail Court after proper appreciation of evidence has rightly decreed the suit of the respondents in their favour.

11. We have heard the learned counsel for the parties and perused the record minutely with their valuable assistance. The record reveals that for construction of Women Polytechnic Institution Sariab Road, Quetta, the appellant hired the services of respondent for consultancy of Architectural and supervisory work and in this regard a n agreement dated 28th May 1998 was executed between the parties for completion of work within a period of 24 months on a consideration of fix amount as per term of agreement; "3.02. payment of the consultant, which reads as under: "3.02. Payment to the Consultants. (a) The Client shall pay as under to the Consultants in respect of the services, the amount specified in Article 3.01 (b), subject to Articles 3.02 (b), 3.02 (c), 1.02 (b), 6.08 and 6.09. A. On completion of preliminary Design and Rs.17,92,000/- B. on completion of BOQ, s/Eng-Estimate phase Rs. 3,13, 000/- C. on completion of bid Document phase Rs. 3,13,600/- D. on completion of Bid Evalvation phase Rs. 4,48,000/- E. During construction Supervision phase of Rs. 28,67.200/- 24 Calendar months from the date of award Construction contract. Rs. 29,03.040/- Total Rs. 57,70,240/-

12. In the said agreement, all the terms and conditions have been settled and agreed by the parties, which are binding in nature including the terms of responsibilities of the parties settlement of disputes and particularly clause 6.08 variation of contract, which is reproduced as under:-- "The contract may varied by agreement between the parties. All such variations, including variations in the scope of services, cost estimates and in the amount specified in Article 3.01(b), shall be in writing signed by the duly authorized representatives of the parties for the purpose."

13. In view of the above terms, it is crystal clear that every variation in the scope of services, cost estimates and amount specified in Article 3.01 (b) if so arrived, but nothing brought by the respondent with regard to the extension of carrying out of consultancy for such additional period of 11 months in written form in lieu of agreement signed between the parties.

14. On the strength of agreement, the parties were not competent to extend the contract of consultancy without reducing the same in written form and accordingly this is what happens in the case in hand. The respondent has failed to prove its case/claim through any documentary evidence, while on the other hand, it was transpired from the record that a lump sum amount of Rs.5,770,240/- was agreed/ paid to the consultant (respondent) for carrying out of the consultancy of whole work as per Article 3.01(b) ibid contract, as such, the respondent/consultant was responsible to carry out the consultancy of work within the scope of settled amount i.e. Rs.57,70,240/- in term of Article 3.01 (b) and could not be allowed to take benefit/advantage of delay caused by the civil contractor for completion of the civil work. In view of the above, appeal filed by the appellant is accepted and the impugned judgment and decreed passed by the learned trial Court being ridiculous, perverse, suffers from misreading, and non-reading and mis-appreciation of evidence is hereby set aside. With no order as to costs. ZC/152/Bal Appeal allowed.