2026 PLP 1373 (YLR)

Ch. Muhammad Iqbal, J.

Through this Regular First Appeal, the appellant has challenged the validity of the judgment and decree dated 31.07.2019 passed by the learned Senior Civil Judge, Rajanpur who dismissed the suit for declaration and permanent injunction filed by the appellant and proforma respondents Nos.5 to 7.

2. Brief facts of the case are that the appellant and proforma respondents Nos.5 to 7/plaintiffs filed a suit for declaration to the effect that the appellant in joint venture with respondents Nos.5 to 7 obtained contract for construction of Kachi Canal from RD1005 against Rs.12621781738/- and after rebate of 170M millions the amount of contract was reduced to Rs.12451784613/- and agreement was executed on the 18th of July, 2006 and said agreement was also accompanied by the Appendix-C thereto. A discord arose with regard to rate of cement at D.G. Khan whether it was Rs.290/292 per bag or it was Rs.355/- per bag as per escalation or de-escalation of the price. Intra parties consecutive correspondence remained continued and finally vide letter No.MFDAC/DP-1301/51 dated 06.08.2011 issued by the Director General Audit, WAPDA and letter No.CE/KCP/DGK/ ACCTS/4334-41 dated 13.08.2011 issued to the plaintiffs by the Chief Engineer/Project Director, Kachi Canal Project whereby recovery of Rs.7,29,54,996/- was imposed upon the appellant and proforma respondents Nos.5 to 7/ plaintiffs. The appellant contended that said recovery letters are illegal and void ab-initio. The appellant/plaintiff also sought permanent injunction against affecting the recovery of said amount from the appellant/ plaintiff. The respondents Nos.1 to 4/ defendants filed contesting written statement and contended that in the tender and in Appendix-C to the agreement a specified schedule was given and the adjustment on the basis of increase or decrease in price of ordinary portland cement (bags) was to be taken as given in the bulletin of the Federal Bureau of Statics, Islamabad falling 28 days prior to the closing date of tender. Out of divergent pleading of the parties, the learned Senior Civil Judge, Rajanpur framed following issues:-

1. Whether the order issued by the Director General Audit Wapda Lahore and orders of Chief Engineer Project Director Kachi Canal in respect of imposing recovery of Rs.72,954,996/- are against law and facts, in effective upon rights of the plaintiff, void ab-initio and liable to be set aside? OPP

2. Whether the suit is bad due to misjoinder and non-joinder of necessary party? OPD 1, 2 and 4

3. Whether the present court lacks jurisdiction and the plaint is liable to be rejected under the provisions of Order VII Rule 11 of C.P.C.? OPD1, 2 and 4.

4. Whether the plaintiffs have no cause of action ? OPD

5. Whether the plaintiffs have not come in the Court with clean hands? OPD

6. Whether the defendant No.3 was not necessary party and suit to his extent is not maintainable? OPD-3 And the parties adduced their respective pro and contra oral as well as documentary evidence. At the fag end of the trial the suit of the appellant and proforma respondents Nos.5 to 7/plaintiffs was dismissed vide judgment and decree dated 31.07.2019. Hence, this appeal.

3. Arguments heard. Record perused.

4. Admittedly, the appellant and proforma respondents Nos.5 to 7 had a joint venture wherein the appellant has 17% share whereas promorma respondents Nos.5 to 7 hold the remaining share. The suit filed by the appellant and proforma respondents Nos.5 to 7 was dismissed through the impugned judgment and decree dated 31.07.2019 but the proforma respondents Nos.5 to 7 did not challenge said dictum of the learned Senior Civil Judge, Rajanpur as such to their extent, the said judgment and decree has attained the status of finality and has become past and closed transaction. Reliance is placed on Pakistan International Airlines Corporation v. Aziz ur Rehman Chaudhary and another (2016 SCMR 14).

5. Now adverting to the lis in hand, as per respective pleadings of the parties, the core controversy revolves around issue No.1 onus whereof was upon the shoulder of the appellant/ plaintiffs. In the plaint, the appellant has asserted that price of the cement on 08.03.2006 i.e. 28 days prior to the closing of Tender was Rs.290 to 292 whereas as per bulletin of Federal Bureau of Statics, Islamabad it was determined as Rs.350/- for cement at D.G Khan and on the basis of said bulletin the respondents/defendants imposed recovery of suit amount upon the appellant/plaintiff. In order to dislodge onus of the above issue as well as to prove the asserted stance in plaint, the appellant/plaintiff has produced Muhammad Saleem (P.W.1) who reiterated the assertions mentioned in the plaint. During cross-examination, he deposed that: Imran Imtiaz (P.W.2), special attorney of the appellant/plaintiff, during cross-examination deposed that:

6. Conversely, Ejaz Hussain, Assistant Audit Officer (D.W.1) deposed that: At Kachi Canal contract Wapda D.G Khan De-escalation amounting to Rs.72.346 Million was less recovered and escalation amounting to Rs.7.63 million was excess paid. In interim payment certificates (IPC) of contract K.C file due to applying incorrect base price of cement. The basic rate of cement was Rs.350/- per bag, Rs.7000/- per ton at D.G. Khan as per monthly statistical bulletin issued by the F.B.S Government of Pakistan for the month of March 2006. Whereas the basic rate of cement for the month of March 2006 applied by Wapda authorities in the IPCs Rs.291/- per bag, Rs.5820/- per ton. Owing to application of incorrect basic rate in the IPCs de-escalation was less recovered for Rs.72.346 million and escalation was excess aid for Rs.7.632 million on cement. Resultantly the wapda authority/Government of Pakistan sustained a loss of Rs.79.978 million. The matter was reported to the project management in Feb.2008 with the recommendation to investigate the matter and fix responsibility against the defaulter and make good recovery of excess paid amount from the contractor. It was replied by the Wapda authorities that the price of cement at D.G. Khan Rs.290/- per bag on 08.03.2006 as confirmed by the Chief Statistical Officer vide letter No.851 dated 22.11.2006. Audit not accepted the reply of Wapda as the authentic document is monthly statistical bulletin issued by F.B.S. in March 2006. Instead of an unauthentic photocopy of letter No.851 dated 22.11.2006 produced by the contractor at later stage. Moreover, the basic rate of specified material and labour are provided in Appendix C to tender of contract at each project on the basis of monthly statistical statement issued by F.B.S. and escalation/de-escalation is also paid/recovered on the basis of same. During cross-examination, D.W.1 deposed that: Firstly we conduct the audit and sent the audit para to the Chief Engineer/Project Director Kachi Canal for its reply. Then the Director Project communicates the audit para to the Kachi Canal consultant for its reply. They replied that the matter of increase and decrease in price of cement in the Ex.P.7 is frozen. It is correct that Auditor General of Pakistan himself had conducted the audit in this case. Dilbar Ali (D.W.2) also deposed in line with the depositions made by P.W.1. Despite grilling cross-examination, nothing favourable could be extracted from the said witness by the appellant/plaintiff.

7. The appellant/plaintiff admitted in the plaint that the amount was subject to increase or decrease on the account of escalation or de-escalation of the price of the materials including ordinary portland cement. Exh.P.6/Tender is an admitted document and the P.Ws also admitted this document. As per Appendix-C of Exh.P.6/Tender, in the remarks/column No.5 of Schedue of Specified Materials, it is written as: As given in the Monthly Statistical Bulletin issued by Federal Bureau of Statistics, Government of Pakistan for D.G. Khan for the month falling on the day, 28 days prior to the tender closing date. (emphasis supplied) The closing date of tender was 05.04.2006 and as per the Bulletin for the month of March, 2006 issued by the Federal Bureau of Statistics, the rate of the cement for the month of March, 2006 at D.G. Khan was Rs.350/- and not Rs.292/-. In rebuttal, the appellant/plaintiff did not produce any documentary evidence. It is settled law that a document can be rebutted by a document having better legal sanctity only. In this regard, reliance is placed on the cases titled as Abdul Ghani and others. v. Mst. Yasmeen Khan and others (2011 SCMR 837), Saleem Akhtar v. Nisar Ahmad (PLD 2000 Lahore 385) and Muhammad Akbar and others v. Province of Punjab through DOR, Lodhran and others (2022 SCMR 1532). Rather, in paragraph No.3 of the plaint, the appellant/plaintiff admitted that the Bureau of Statistics, Government of Pakistan in the month of March had shown the rate as Rs.350/-. This term was settled at the time of execution of the agreement between the parties and both the parties are bound to abide it and none of the parties can wriggle out from the same at any subsequent stage. Reliance in this regard is placed on the cases titled as Khalid Rashid v. Kamran Lashari, Chairman, C.D.A, Islamabad and others (2010 SCMR 594) and Sajid Mehmood v. Mst. Shazia Azad and others (2023 SCMR 153).

8. Further, neither the appellant/plaintiff in its plaint nor P.W.1 and P.W.2 denied that the price of cement bag in Dera Ghazi Khan was Rs.350/-. As per Appendix-C of the Tender, the contractor/appellant was required to quote basic rates as given in the Monthly Statistical Bulletin issued by the Federal Bureau of Statistics falling, 28 days prior to the closing date of the tender but instead of this, the contractor/appellant merely relied the date as 08.03.2006. The audit para of excess payment to the appellant was drafted in February, 2008 due to taking basic price as Rs.292/- instead of Rs.350/-. The said basic price Rs.292/- was not approved by any competent-authority established by the government. Further, no change was made in Appendix-C to the contract agreement.

9. Furthermore, the respondent/ defendant No.3 while filing written statement has categorically denied the authenticity of letter dated 22.11.2006 on the ground that Bulletin of the Federal Bureau of Statistics was issued under the signature of Secretary, Statistics Government of Pakistan and it was not to be published on date wise basis. Then it was duty of the appellant/plaintiff to prove the rate but the appellant/plaintiff has not proved the said documents of the rates so collected by it through producing its respective author. As per computation statement Exh.P.18, the appellant/plaintiff only written the rate in Appendix-C as March, 2006 but the basic rate of the cement was not mentioned. Further, D.W.1 also denied authenticity of letter dated 22.11.2006 by deposing that it was intimated that basic rate in the contractor I.P.Cs from September, 2006 to January, 2008 as mentioned in the contactor bill i.e. IPC was Rs.350/- per bag and Rs.7000/- per ton but at the later stage, the basic price was changed as Rs.291/- per bag.

10. Another aspect of the matter is that the appellant/plaintiff relied on rate of cement bag mentioned in letter dated 22.11.2006 but the appellant/plaintiff did not produce the executant of the said letter rather produced it in the statement of P.W.1 who is neither scriber or executant nor witness of the said document whereas mere exhibition or producing of a document in evidence does not amount to prove of it rather such produced or exhibited document in evidence is not amounting to the prove of the same unless it is proved as prescribed under the law whereas the prescribed mode of proving of a document/ facts cannot be compounded by the Court who has to pronounce a judgment and even court has jurisdiction to determine whether a document was proved in accordance with law or otherwise. Reliance is placed on the case reported as Province of the Punjab through Collector, Sheikhupura and others Vs Iqbal Ahmad through LRs and others (2017 SCMR 173).

11. Moreover, as per law the appellant/plaintiff was required to tender the documentary evidence (Exh.P.23 to Exh.P.35) in the statement of its witnesses but perusal of the record shows that the said documents were produced by the learned counsel for the appellant/plaintiff in his statement. This mode of tendering material document in the evidence is not recognized as a valid tender of the documents in evidence. It is settled law that the documents relied upon or on the basis of which the case has been filed, should be produced in the evidence by party itself and a fair opportunity should be given to the other party to cross-examine the veracity of the same, as such the said documents produced by the counsel of the appellant/plaintiff cannot be relied upon as valid piece of evidence and ordinarily such documents are excluded from taking into consideration. Reliance is placed on a latest judgment of the Hon'ble Supreme Court of Pakistan cited as Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730) the relevant portion whereof is as under:-

7. As regards the other two documents i.e. mutation No.1836 (Exh.D-9) and mutation No.1837 (Exh.D-8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab through Collector, Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration.

12. Furthermore, the Director General, Audit WAPDA issued letter dated 06.08.2011 (Exh.P.19) to the Chief Auditor, WAPDA describing therein the rate of monthly statistical bulletin, issued by the Federal Bureau of Statistics. For ready reference, the said letter is reproduced hereunder: To, The Chief Auditor, WAPDA, Al-Jannat Building, Bank Square, Lahore Subject: DRAFT PARA NO.1301 Please refer to your office memo No.DPS/DP-1301/W/C/2008-09/714 dated 17.03.2011 on the above subject. The Competent Authority has not accepted the reply of management. The date of 8th March 2006 given in the Appendix-C to tender was the date of 28 days prior to the closing date of tender i.e. 5th April 2006 and it falls within the month of March 2006. Therefore, the rates given in the monthly statistical bulletin issued for the month of March 2006 by the Federal Bureau of Statistics, Government of Pakistan for D.G Khan i.e. Rs.350/- per bag (Rs.7000 per matric tone) would be applicable as per remarks given in Appendix-C to the tender. The rate of Cement obtained by the contractor for Federal Bureau of Statistics for a particular date i.e. 8th March 2006 is not applicable in this case as per conditions/remarks of the tender document. It is therefore requested that the recovery be made from the contractor and got verified by audit. (emphasis supplied) In conformity with above corresponding letter, the Chief Engineer, WAPDA issued letter dated 13.08.2011 (Exh.P.20) to the appellant and proforma respondents Nos.5 to 7/plaintiffs for the recovery of Rs.7,29,54,996/- for committing breach of the stipulation of the contract agreement. For ready reference, letter dated 13.08.2011 is reproduced as under: M/s. Central China Power Group JV 177-A, Street-6, DHA, Lahore. Subject: KACHI CANAL PROJECT CONTRACT KC-05-RECOVERY OF PAYMENT MADE ON ACCOUNT OF ESCLATION UNDER COC SUB-CLAUSE 70.1 ON CEMENT The Director General Audit Wapda, has desired through letter No.MFDAC/DP-1301/51 dated 09.08.2011 to recover the amount of escalation paid to the contractor under sub-clause 70.1 on cement (copy attached). As per Audit, the rate of cement obtained by the Contractor from Federal Bureau of Statistics for a particular date i.e. 8th March, 2006 is not applicable in this case as per conditions/remarks of tender documents and the rates given in the monthly statistical bulletin issued for the month of March, 2006 by the Federal Bureau of Statistics, Govt. of Pakistan for D.G Khan is Rs.350/- per bag (Rs.7000 per Metric ton) will be applicable. As per Director General Audit s letter referred above the payments already made on account of escalation on cement will be recovered from money dues and basic rate of cement will be taken @ Rs.350/- bag (Rs.7000 per metric ton) for computation of net increase/decrease in the cost of cement as per CoC sub-clause 70.1 from the date of commencement of contract. The aforesaid letter was issued on the basis of audit para but the appellant/plaintiff did not challenge the said audit para before any forum and same has attained finality which has to be given effect stricto senso and assessment of recovery amount made where under wears strong presumption of legality.

13. As both parties are bound by the terms and conditions of contract (Exh.P.6) wherein an exclusive and unambiguous modus operandi of rate assessment has been provided as per the Bulletin of the Federal Bureau of Statistics but the appellant had never challenged the price settled in the bulletin for the month of March, 2006 and nor impleaded Federal Bureau of Statistics, Government of Pakistan as party in the suit. It was settled between the parties that the price would be taken from the bulletin issued by the Federal Bureau of Statistics for the month of March but the appellant/plaintiff got managed to take the price from private shopkeepers, stockist and whole sale dealer instead of taking it from the bulletin of Federation Bureau of Statistics which maneuvering is amounting to a deliberate bypass or violation of agreed stipulation of the contract agreement whereas the appellant was not unilaterally authorized to arbitrarily alter/ modify said term and condition and modalities of the contract.

14. The appellant/plaintiff did not prove the case as agitated in the plaint through any credible, concrete and trustworthy oral as well as documentary evidence as such the trial Court rightly dismissed the suit.

15. Learned counsel for the appellant has not pointed out any illegality, material irregularity or misreading of evidence in the impugned judgment and decree of the trial court, which does not call for any interference by this Court in its appellate jurisdiction.

16. Resultantly, this appeal having no merits is hereby dismissed. No order as to costs. MH/G-18/L Appeal dismissed.