P L D 1991 Quetta 13 (PLP)

IFTIKHAR MUHAMMAD CH., J--Appellant filed suit for declaration and recovery of damages, on the averments that he being a no-limit contractor obtained a contract from Irrigation and Power Department for the construction of Machinery Yard and Shed vide agreement executed in the year 1979, with a stipulation to complete the task before 30th June, 1980. The construction work was commenced on 15th June, 1979, but despite of his efforts could not execute the work within the target period mainly on account of non-supply of water at the site and for non-availability of cement. Although the department assisted him in obtaining cement on basis of permits issued from time to time by the Industry Department, Government of Balochistan. On the expiry of period for the completion of contract a request was made for the extension of time, which was allowed till 30th June, 1981. Surprisingly before expiry of extended period the contract was rescinded vide letter No.1391-93, dated 2-4-1981, in purported exercise of the powers under clause 3, sub-clause (a) of the agreement,- whereby simultaneously earnest money of Rs.1,41,106 was also forfeited. Later on, without issuing show-cause notice, the Secretary Irrigation Department notified him to be black-listed on 24-8-1991, intimating about this fact to all the concerned departments. It was the claim of the plaintiff that due to rescission of the contract and forfeiture of the earnest money etc. the following losses were incurred by him:

(a) Security deposit and = 1,41,106 earnest money. (b) Cost of 14 completed angle 95,000 iron (trestles) according to specification. (c) Hire charges of shuttering 50,000 material and material used in scaffoldings. (d) Salary of Chowkidar a 2,000 Rs.400 p.m. from 2-4-1981 to 24-8-1981. (e) Salary of Munshi (Clerk) 3,000 Rs. 600 p. m. from 2-4-1981 to 24-8-1981. (f) Daily wages of carpenter at = 10,100 the rate of Rs.70 per day from 2-4-1981 to 24-8-1981. Total 3,01,206 It was further the claim of appellant that he failed to obtain the contract of the construction work from the date when he was black-listed as such, he sustained loss of Rs.5 lac per annum, and as such claimed this amount with interest at the rate of 12% per annum from 24-8-1981. The Irrigation Department repudiated the claim of appellant by filing the written statement and inter alia contended that full cooperation was extended to him, so much so that arrangements were also made to get the cement for him at the subsidized rate from the factory in pursuance of the permits, but the appellant even then did not complete the work. Although the contractor had made himself liable for the cancellation of contract work in the first year of completion of work but another facility was afforded to him by extending period for another year. So much so from time to time number of reminders were issued on his name with directions to accelerate the progress of the work, but without any positive result thus under the compelling circumstances, on 2nd April, 1981, the contract work was rescinded and subsequent thereto on having followed the procedure contractor was black listed. The trial Court struck issues on 14-2-1988 and rearranged the same on 9th April, 1988. Appellant adduced the evidence of P.Ws. Abdul Manan, Muhammad Ashraf, Khan Ali, Abdul Rauf, Shamshad, Juman Ali, Muhammad Nawaz, Muhammad Aleem, Muhammad Hasham, Jan Muhammad, Muhammad Khan, Ali Raza, Barkat Ali and Zariful Hassan. However the plaintiff did not enter in the witness-box to make his statement in affirmative which he got recorded in rebuttal. The respondent produced witnesses Nazirul Hassan, Nadir Ali Abdul Aziz Khoso and Munawar Khan, who appeared as representative of department. On completion of evidence vide order/decree, dated 29-4-1993, suit was dismissed by Civil Judge-1, Quetta, thus instant appeal has been preferred. Mr. Zahid Muquim Ansari, Advocate, appeared to support the case of appellant and contended that Courts below failed to dispose of issues in accordance to law. Appellant did prove his case on the basis of evidence available on record which has not been properly appreciated. The contract work was rescinded with mala fide intentions on 2nd April, 1981, much before expiry of the extended period i.e. 30th June, 1981. Appellant has been black listed without any legal justification. On the other hand, Raja M. Afsar, learned Advocate-General, contended that time stipulated in agreement* for completion of work was the essence of the contract but the appellant did not execute the work within that period. So much so, full cooperation was extended to the contractor and a perusal of the order of rescission of contract would reflect that appellant had taken no interest in the completion of work despite receiving number of reminders to complete the work. The language of the cancellation letter is couched in such manner that its recital would manifestly make it clear that department had no option but to rescind the contract. Appellant in the application submitted by him for the extension of period put forth following reasons, which were otherwise unfounded: (i) Non-supply of the water, which was not the obligation of department. (ii) On account of non-availability of the cement he could not complete the work. The learned Advocate-General stated that although it was also not the duty of department to ensure the supply of the cement to the contractor but even then arrangements were made to procure the cement on the basis of permits issued by the Provincial Government, but even then contractor did not get the cement, as he failed to deposit the price etc. (iii) On account of non-availability of funds the work could not be completed. According to A: G. the appellant in his statement himself admitted that the payment for the work which was completed by him has already been made to him, so much so, in the first year of contract, he got Rs. nine lacs and in the extended period again he received about Rs. five lacs without showing any progress in the work, equal to the amount which he has received, as such, the plea put forth by the appellant was not entertainable. The learned Court below did examine documentary as well as oral evidence, carefully and came to. the .conclusion which is not open to any exception on any principle of evaluating and appreciation of evidence. We have heard the learned counsel for parties and gone through the record carefully. In view of the evidence brought by the parties on record as well as the contentions raised following points are formulated for determination, according to Order 41, Rule 31, C.P.C.: (i) Whether the trial Court- proceeded to record impugned judgment contrary to the provisions of Order XX, rule 5, C.P.C.? (ii) Whether the appellant had succeeded in proving the case for the recovery of damages by way of compensation.? ' (iii) Whether the appellant had been rightly black-listed from the contractorship because he failed to fulfil the work of construction assigned to him. As far as the first formulation is concerned, it does not require elaboration because the trial Court initially framed seven issues but later on an application was submitted for the re-casting of issues Nos.4 and 5 and same were substituted with new issues. However for sake of convenience all the issues after substitution were re-arranged. A perusal of the impugned order reveals that the learned trial Court discussed each issue keeping in view the provisions of law, as such, the contention so raised by the learned counsel for appellant having no legal force is hereby repelled. The second point for determination is covered in issue No.6 which is reproduced hereinbelow:

"Whether the plaintiff is entitled for the reliefs claimed for?" According to the law of Tort, compensation by way of damages is generally categorized as Special and General damages. As far as former category is concerned it requires to be proved item-wise to the extent of the damages allegedly sustained by the claimant and later category of damages is measured by applying the "Rule of Thumb" and the Court seized with the matter has discretion to calculate the damages in view of the given circumstances of the case. It is to be noted that General damages are claimed normally in the matters where, on account of injurious acts of the defendant, plaintiff has suffered agony, mental torture, defamation etc. Since in the case in hand, appellant is claiming the damages on account of specific losses allegedly sustained by him, due to the cancellation of the contract work by the department therefore, it was a legal obligation upon him to prove each item separately. In this behalf now it is to be examined that how far the appellant has surmounted the issue No.6. The Contract agreement, specifically mentions that the contractor had a target period up to the 30th June, 1980 to complete the execution of the contract work, but it is an admitted position that he could not do so despite of the fact that an amount of Rs. 9 lacs was paid to him as this fact has been admitted by learned counsel for appellant, during hearing of the appeal. On the expiry of the said period the department had no obligation to extend the period of construction but perusal of the order, dated 26th June, 1980 Exh.D/29 reveals that at his request which he made vide Exh.D/28, it was extended up to 30th June, 1981. The application so made by appellant in fact does not contain any reasons on account of which, it can be concluded that the department was responsible for non-completion of work by appellant within the period prescribed in the agreement. However even getting extension of the time, no remarkable progress was shown by the appellant towards the completion of work. In this behalf, the letter of cancellation of contract P/19, visualizes that from time to time 15 reminders were sent to appellant by the Department but without any result. At this juncture the statement of the appellant made by him before the trial Court is necessary to be examined. On the careful perusal of same, it emerges that an attempt is being made to hold the department responsible for non-completion of the work mainly for non- supply of the water as well as, the shortage of cement and paucity of the funds. This evidence of the appellant if is compared with oral as well as documentary evidence, available on record, produced by appellant, there is no hesitation in holding that neither the department was responsible to make the supply of the water to him nor it was their duty to ensure the supply of the cement. Although in that behalf full cooperation was extended and as far as non-availability of the funds is concerned, it hardly constitutes a ground in favour of appellant because till cancellation of the contract the appellant had received an amount of Rupees fourteen lacs out of the contract which was to be completed at the cost of Rupees seventeen lacs. As far as the forfeiture of earnest money and security deposit is concerned that was too permissible in view of clause 3-A of the contract agreement. In respect of the alleged losses suffered by appellant towards the payments to Chowkidar, carpenter etc. is concerned, no convincing evidence has been produced before the trial Court. In our opinion it was also incumbent upon appellant to have had produced his previous statements of accounts in respect of the profit earned by him to substantiate that on account of his being black-listed, he could no" obtain the contract for the construction of work, whereas previously he had been earning rupees five lacs per annum and in absence of such evidence, it was not possible for the trial Court to hold that contractor has sustained loss to the tune of rupees five lacs per annum. We have reassessed and evaluated independently the total evidence produced by the parties on record, and on the basis, whereof it is concluded that the contractor had utterly failed to make out a case for the recovery of a !I special damages. Now turning towards the last contention urged by appellant's counsel namely that the department black-listed the contractor without any justification. The learned counsel was asked to place before us the terms and conditions as well as the rules governing the enlistment of the contractors in the Works Department but he failed to do so. As it has been concluded that the appellant could not complete the work assigned to him, according to the terms and conditions of agreement, therefore, the department had a lawful right to black-list his name as a no-limit contractor, because if such action is not taken then in future again appellant would legitimately have a claim to participate in the Government Contracts on account of which, necessarily the department as well as the public exchequer shall sustain irreparable loss. Even otherwise, enlistment as a contractor with the Government Department, does not confer a vested right. The enlistment is ordinarily defined as a permission to participate in the contract works and such concession competently can be withdrawn at any stage particularly in those cases where the contractor has failed to execute the work within the target period to the satisfaction of the department. Thus this contention as well has no merits as such, is not liable to be entertained. No other assertion was put forth by learned counsel for appellant support of the appeal. The upshot of the above discussion leads us to hold that appeal has no force which is dismissed. However there shall be no order as to costs. A.A./457/Q Appeal dismissed