2018 PLP 38 (YLRN)

MUHAMMAD ALAM, J.

This is a Civil First Appeal against judgment/decree dated 20-10-2011, passed by the Civil Judge First Class Skardu in Civil Suit No.51/2010, whereby, suit of appellant was dismissed.

2. It is not disputed that initially appellant/plaintiff, hereunder referred as appellant, filed a suit for rendition of accounts but through order dated 10-06-1999, the learned Supreme Appellate Court of Gilgit-Baltistan directed for filing suit for recovery of the suit amount and accordingly appellant amended the plaint in the light of petition dated 16-06-2004 for amendment of plaint. Respondents contested the suit and filed written statement, wherein, admitted paras No.1 to 3 of the plaint while embodied their defense in paras Nos.4 and 5 of the parawise written statement. From joint perusal of pleadings of parties, the crux of the case in hand is that respondents defended the case on the plea that the suit contract was for payment of the lump sum amounts to the respondents in consideration of specific work described in the contract to be done by the appellant while appellant averred that the suit amount is payable on the basis of labour supply agreement dated 14-09-1988. Learned trial court framed issues at two times and the issues in field are issues framed on 06-03-2007. The first agreement between parties is dated 01-09-1988, marked as Exh.D/1 or Exh.D/2 or Exh.P/2.

3. Issues framed on 06-03-2007 are as under:-

1. Whether the plaint has not been drafted in accordance with law as such the suit is not maintainable? OPDs

2. Whether the plaint has not been drafted in accordance with the order of Hon'ble Chief Court dated 10/06/1999, hence not maintainable? OPDs

3. Whether the plaintiff has sought different claims in the amended plaint which has changed the nature of the suit, which make the suit not maintainable? OPDs

4. Whether the plaintiff has no cause of action to file the present suit? OPP

5. Whether the suit is hit by the doctrine of estopple? OPDs

6. Whether the plaint is liable to be rejected Under Order-VII Rule-11 of CPC? OPDs

7. Whether the suit is within time? OPP

8. Whether the original agreement being defective, the same was altered by the defendants through their letter dated 14/09/1988 whereby the plaintiff was declared as labour supply contractor while the position of the defendant remained as contractor for the work assigned to the plaintiff? OPP 9 Whether the work was carried-out by the plaintiff as per specification under the supervision of the representative of the defendants? OPP

10. Whether the plaintiff continued the work under protest and received the amount under protest? OPP

11. Whether the constructional work was completed in July 1990 and the defendants 4 and 5 drove upto the last point along with the plaintiff for their satisfaction? OPP

12. Whether the plaintiff constructed only 19.4 kilometers out of 31 kilometers and the competent authority terminated thereafter the contract of the plaintiff? OPDs

13. Whether on the request of the plaintiff joint measurement was carried out in the light of letter of defendant No.6 dated 07/03/1990 and if so whether the representative of the defendants refused to sign the measurement? OPP

14. Whether the measurement was carried out for the handing/taking purpose of units to ascertain the work done and balance? OPDs

15. Whether the defendants provided cement, blasting material and machineries on payment and partial payment approximately amounting to Rs.26,00,000/- has been made? OPP

16. Whether the plaintiff is entitled to a decree of Rs.2,08,00,000/- with interest as prayed for? OPP

17. Relief?

4. For ready reference, we reproduce the findings of the trial court on the issues which goes as under:-- Issue No.1 Against plaintiff. Issues Nos. 2 and 3 Against defendants. Issue No.4 Against plaintiff. Issues No.5 Against defendants. Issue No.6 No findings. Issue No.7 Against defendants. Issue No.8 Against plaintiff. Issue No.9 Against plaintiff. Issue No.10 Against plaintiff. Issue No.11 Against defendants. Issue No.12 Against defendants. Issue No.13 Not discussed. Issue No.14 Against defendants. Issue No.15 Against plaintiff. Issue No.16 Against plaintiff.

5. We have thoughtfully considered arguments advanced by the learned counsel for parties and have also gone through the evidence available on file. Averments of the pleadings of parties are very important and in this connection, we find that respondents have very specifically pleaded that they have made payments of the bills of the appellants and nothing remained outstanding against the appellant, in connection with the transaction between the parties. Respondents have further pleaded that the transaction between the parties is therefore closed one and nothing remains against the respondents. It is not disputed that total length of the road constructed by the appellant is 19.4 kilometer. It is very important to note that respondents provided explosives, detonators and cement etc. during construction work of the said road.

6. Instead of taking up all issues for discussion, we have formulated few points for discussion and debate. Among such points, the only most important point is that, whether appellant has established his case for recovery of the suit amount from the respondents? So we are taking up various aspects of the evidence of appellant for discussion in proof of the main question of the right of appellant for recovery of suit amount from respondents. In proof of issues, appellant filed Exh.P/A to Exh.P/Z as documentary evidence and also produced 7 (seven) PWs as oral evidence. We are taking up the documentary evidence filed by appellant, in proof of this question for discussion. Exh.P/1 is the agreement between the parties but the said document is attested by a Magistrate First Class, who is obviously not custodian of the said document. File does not contain any evidence showing proof of presenting the original of Exh.P/1 before the said magistrate, prior to attesting the said document by the said magistrate. Likewise, Exh.P/A is another document showing attestation of a Magistrate Second Class, who is also not the custodian of the said document, nor there is any proof of presenting the original document before the said magistrate prior to the attestation of the same. Similar is the position of attestation of rest of all the documents filed by appellant. We do not find any mention of the suit amount as outstanding amount against the respondents in any of the documents of the appellant. Moreover, none of the PWs are stating that suit amount is outstanding amounts against the respondents in connection with the admitted transaction between the parties. In our opinion, appellant was legally bound to prove that the suit amount is outstanding against the respondents. So the question for determination is the relevancy and admissibility of the evidence of appellants establishing that the suit amounts are outstanding against the respondents. Once it is admitted that the suit agreement between parties has been effected, heavy onus shifted to appellant to prove the suit amounts as outstanding amounts against the respondents and that also in accordance with the performance of the initially agreement between the parties. So, we are taking up important pleas of the appellant and the evidence produced to establish said pleas. In this connection, appellant has very specifically averred that agreement between parties was no more in the field after Exh.P/C while, in our opinion, Exh.P/C is a simple letter and cannot be interpreted as a document with any kind of imports of finishing the initial agreement between parties. There is no evidence, whatsoever, showing the circumstances in which Exh.P/2 came to end. Plaintiff could succeed only if he proved that Exh.P/2 came to an end. Then appellant has another important plea in his plaint that parties conducted joint measurement of the work done. We do not find any evidence in proof of this plea of the appellant. Yet another very important aspect of the case is that appellant could file a suit for specific performance of the basic agreement in case respondents violated any provision of the said agreement, Exh.P/2.

7. The case in hand is a suit for recovery of suit amount and appellant badly failed to prove that the suit amount is outstanding against the respondents. In this connection, the evidence of appellant appraised in para above is never sufficient to grant the decree prayed for. So we hold that the trial Court has rightly dismissed the suit. Appeal dismissed. This file be consigned to record. ZC/53/GB Appeal dismissed.