2009 PLP 108 (CLC)

SAJJAD ALI SHAH, J.

Through this application, the defendants seek an order restraining the plaintiff from raising construction on their project, subject-matter of instant suit, and a further direction to the Nazir to take over the project. Ms. Sofia Saeed Shah, learned counsel for the defendants, has pleaded that the plaintiff has awarded a contract to the defendants for raising construction on the suit project on the terms and conditions as detailed in the construction agreement, dated nil May, 2005 and the defendants were raising construction strictly in accordance with the terms and conditions of the agreement and were paid accordingly. It was contended that work of construction was stopped when a notice was issued by the D.H.A. and the defendant kept on asking the plaintiff to remove the objections so that the work of construction can restart. However, the plaintiff, instead of removing the objection has itself started work of construction with the sole motive of usurping Rs.60,00,000 extra spent by the defendants. It was, therefore, contended that unless the construction is stopped, it will not be possible to ascertain the extent of construction raised by the defendants to support its allegation of spending Rs.60,00,000 beside the amount received from the plaintiff. It was lastly stated that the instant suit for recovery has been malafidely filed against the defendants. On the other hand, Mr. Jam Asif Mehmood, learned counsel for the plaintiff, has contended that there is no dispute that the defendants were awarded work of construction by the plaintiff in accordance with the terms and conditions as incorporated in the agreement dated nil May, 2005 and were paid in accordance with the terms and conditions incorporated in the said agreement. However, a dispute arose between the parties when the defendants raised demand for extra work which demand without any justification was enhanced and therefore, the said demand was rejected. The defendant, thereafter, stopped the work of construction and the plaintiff, in accordance with the terms of agreement, appointed Messrs Bag Associates to continue with the construction and filed the instant suit against the defendants for recovery of overdrawn and expected additional expenditure on account of escalation as well as damages. It was further submitted by the learned counsel that vide order, dated 8-10-2007 this Court had appointed Mr. Moinuddin Ahmed, Deputy Registrar (Judicial) as Commissioner to get the measurement carried out from a qualified Architect, the exercise was carried out and the Architect has filed a report wherein not only the extent of construction is stated but also the extent of extra payment received by the defendants has been specified and therefore, in the circumstances the defendants' apprehension is not only misconceived but frivolous. It was lastly, contended that the instant application has been malafidely filed to forestall the rightful claim of the plaintiff and further to pressurize and extort money and therefore, the application is liable to be dismissed. The record reflects that the compliance of order dated 8-10-2007 the project was inspected by an Architect and a detailed report dated 3-3-2008 has been placed on record which clearly spells out the extent of construction at the relevant time the payment made and also the amount outstanding against the defendants. In the circumstances, the apprehension of the defendants that in case the plaintiffs are allowed to carry out the construction, it will not be possible to ascertain that to what extent the defendants have carried out the work of construction is misconceived. Even otherwise, since there is no suit or counter claim filed by the defendants against the plaintiff for the recovery of any amount, therefore, restraining the plaintiff from carrying on work of construction of its own project would not serve the ends of justice and would be without cause or purpose. In the circumstances, the application is misconceived which is dismissed. M.B.A./N-40/K Application dismissed.