2016 PLP 116 (YLRN)

SHAH KHAWAR, J.

The instant appeal has been directed against the judgment and decree dated 17.04.2007 passed by the learned Civil Judge 1st Class, Lahore whereby the suit of the appellant was partly decreed.

2. Brief facts giving rise to the institution of present appeal are that the appellant is a renowned Housing Society and the Government of the Punjab has declared it a "Model" Society; that respondent No.1 is an approved contractor of respondent No.2 and deals with Engineering/Construction Work etc; that on 05.06.1991; the appellant entered into an agreement with respondent No.1 regarding external/street electrification of the Society after taking approval from respondent No.2; that the appellant at the demand of respondent No,1, furnished bank guarantee of Rs.4,63,638/35 in favour of respondent No.2 and paid total amount of Rs.18,10,000/- to respondent No.1 on furnishing various bills; that the time limit for accomplishment of said works was stipulated as five months but respondent No.1 failed to perform the same even in eight years despite obtaining various extensions; that the appellant served the respondent No.1 with legal notice dated 07.06.1999 and subsequent to that respondent No.1 further sought extension of time of two months but again failed to do the needful; that a suit for declaration, recovery and damages/compensation was filed before the learned Civil Judge, Lahore.

3. Respondent No.1 filed written statement by taking certain preliminary objections and contested the suit. It is worth mention here that respondent No.2 did not file written statement.

4. Out of divergent claims, following issues were framed by the learned trial court:- i. Whether suit is time barred? OPD ii. Whether plaintiff has not come to this court with clean hands? If so its effect? OPD iii. Whether plaintiff is estopped by his words and conduct to file the suit? OPD iv. Whether suit has not been filed by an authorized person? If so, its effect? OPD v. Whether act/omission/commission of the defendants per details in the body of plaint are collusive mala fide deliberate and in denial of the legal character of the plaintiff? OPP vi. Whether plaintiff is entitled to recover Rs.18,10,000/- as the actual amount cost and Rs.1 crore as the valuation costs? OPP vii. Relief.

5. The appellant examined Muhammad Akram Awan the Secretary of the Society as PW.1 and Muhammad Saeed Shad as PW.2 and also submitted following documents:- i. Bank Guarantee Exh.P1 ii. First running bill Exh.P2 iii. Second running bill Exh.P4 iv. Third running bill Exh.P7 v. Fourth running bill Exh.P5 vi. Final bill Exh.P6 vii. Receipt Exh.P3 viii. Copy of letters dated 25.09.1993 and 02.03.1994 Exh.P8&9 ix. Legal Notice Exh.P10 x. Agreement - Mark-A xi. Cost Abstract Mark-B xii. Purchase of PCC Poles for external Mark-C xiii. BOQ Mark-D xiv. Photocopy of Wapda Letter dated 12.10.1994 Mark-E

6. Respondents failed to cross-examine the appellant's witnesses and their right to cross-examine the witnesses was closed on 06.05.2006. Thereafter, appellant closed his oral as well as documentary evidence on 06.06.2006. Thereafter, respondents No.1 also failed to produce the evidence and his right to produce the evidence was closed on 06.12.2006. The said order was assailed by way of filing Civil Revision before this Court which was dismissed in limine vide order dated 02.03.2007.

7. The issue No.6 was the main issue which was to be proved by the appellant. After evaluating the pleadings of the parties, documentary evidence and statements of the PWs, the learned Civil Judge, Lahore vide judgment and decree dated 17.04.2007 partly decreed the suit to the extent of Rs.2,65,000/- with costs against respondents.

8. We have heard the contentions of learned counsel for the parties.

9. As mentioned above, onus to prove issue No.6 was on the appellant. There is no cavil that right of cross-examination on the PWs and right to produce evidence of the respondents were closed and moreover, respondent No.2 did not file written statement to the plaint yet this is the bounden duty of the learned trial Court not to advert and rely upon the contents of the plaint and genuineness of the monitory claims as mentioned in the plaint. The learned trial Court did not rely upon the one-sided story of the matter and discussed each of the monitory claims of the appellant in its true perspective. PWs deposed that plaintiff's society is entitled to recover an amount of Rs.18,10,000/- paid to respondent No.1 which was paid through bills Exh.P2 to Exh.P

9. PW.1 further deposed that an amount of Rs.1,52,000/- was received in excess. PW-2 has not deposed anything regarding the payment made to respondent No.1. The first running bill (Exh.P2) was submitted which was verified and passed to the tune of Rs.1,15,254/-. Second running bill (Exh.P4) does not show that to what extent the amount was passed for payment. Thereafter, third running bill (Exh.P7) was submitted by respondent No.1 and the same was verified and passed to the tune of Rs.1,50,000/- and on the back of the said bill an amount of Rs.40,000/- was also passed. Forth running bill (Exh.P5) was submitted which was verified and was passed to the extent of Rs.2,24,023/- and then the final bill (Exh.P6) was submitted and the same was also verified and passed to the tune of Rs.93,128/- the receipt whereof was also submitted in the learned trial Court as (Exh.P3). A perusal of final bill reveals that the respondent No.1 has admitted the receiving through cheques but the amount of Rs.1,50,000/- was received in connection with third running bill through cheque No.29832562 dated 30.09.1993. The total amount received in the running bill submitted by respondent No.1 was Rs.8,18,565 and if the amount of Rs.1,50,000/- is added then it comes out Rs.9,68,565/-. Respondent No.1 admitted in the written statement that an amount of Rs.10,89,512/- has been received from the appellant. It reveals from documents i.e. Exh.P2 to Exh.P9 that appellant's society failed to establish that an amount of Rs.18,10,000/- was paid to respondent No.1. However, it is established that respondent No.1 received an amount of Rs.1,50,000/- from appellant's society and the same is not included in the final bills as received. Respondent No.1 in the written statement has claimed that this is the set off against the expenses incurred in the transportation and other miscellaneous charges. The respondents failed to lead the evidence to prove this fact, therefore, the amount of Rs.1,50,000/- was over payment due against respondent No.1.

10. In respect of the claim of Rs.1,00,00,000/- as devaluation cost learned trial Court has rightly held that the appellant was required to prove that the society borne the costs of non-fulfillment of agreement executed between the parties. The appellant has failed to submit any calculation and figures, which may show that the appellant has borne the expenses of one crore to complete electrification of society. This was rightly held that the Court cannot award such heavy amount mere on the statement of the appellant without any supporting evidence to this effect.

11. The appellant's society also claimed that respondent No.2 be directed to release an amount of Rs.4,63,638/35 with mark up on account of bank guarantee. The learned trial Court has pointed out that the bank guarantee has since been expired on 27.01.1994. Exh.P1 shows that bank guarantee was written on the stamp papers but does not show whether the bank guarantee had revalidated or not. The statement of PW.1 only disclosed that the bank guarantee was given as Rs.4,63,638.35/- and the admissibility of document is questionable as it is unsigned.

12. The appellant, could not justify the claim in respect of damages/compensation to the tune of Rs.2,00,00,000/- on account of committing actionable wrong. The appellant's society was required to prove that as to how appellant is entitled for damages/compensation of such a huge amount without arriving any calculation and adducing evidence in this regard which was rightly denied by the learned trial Court.

13. So far as the claim of appellant mentioned in para No.5 of the plaint that an amount of Rs.70,000/- was received by respondent No.1 fraudulently, is concerned the case of respondent No.1 is that this amount was recieved under Article 4 and clause 4.1 of the agreement as an advance payment to cover the consultation fee, Wapda charges and other miscellaneous expenses involved for final approval of design, layout plan and permission of private execution. However, it is also not discussed in evidence that how an amount of Rs.70,000/- was received by respondent No.1 through fraud. The learned trial Court has rightly held that the amount claimed under para 5(b) of the plaint, an amount of Rs.1,50,000/- has been allowed. The appellant under para 5(d) of the plaint claimed an amount of five transformers along with charges. However, no specific amount of the repair paid in shape of the bills was submitted yet both the witnesses deposed that transformer installed by respondent No.1 was out of order. The statement of appellant has not been rebutted. PW.1 deposed that five transformers were repaired and one of the transformers was out of order. The statements of both the witnesses were neither rebutted nor cross-examined therefore, one of the transformer would be considered not in working condition so the amount of the same i.e. Rs.1,15,000/- was payable by respondent No.2 to the appellant.

14. Keeping in view the above circumstances, the learned trial Court has rightly held that respondent No.1 was liable to pay total amount of Rs.2,65,000/- and rest of the claims of the appellants are not allowed.

15. While considering all the above eventualities and findings of the learned trial Court, we are not inclined in interfere in the judgments/decree passed by the learned trial Court and upheld the same. Consequently, the present appeal being devoid of any force is dismissed. ZC/M-158/L Appeal dismissed.