2020 PLP 1965 (MLD)

FAHIM AHMED SIDDIQUI, J.--Appellants have assailed the judgment dated 21-08-2017 and decree dated 26-08-2017 passed in Civil Suit No. 1330 Of 2009 (Javed Baloch v. Province of Sindh and others). By passing the impugned judgment and decree, the learned Single Judge of this Court directed the appellants (defendants) to pay a sum of Rs.48,50,991/- (as per player clause-a) and Rs. 40,32,000/- (as per prayer clause-b) to the respondent as compensation/damages etc.

2. The factual matrix of the instant matter is that the respondent filed the suit in which he disclosed that he is the sole proprietor of Messrs Mir Enterprises, a government contractor. In this capacity, he had carried out different works assigned to him by different government departments including PWD, Government of Sindh. Purportedly, the performance of the respondent was appreciated by the engineers of the department through a letter dated 08-04-2005 regarding day-to-day work at GOR-1, Bath Island, Karachi. Since those works/services (M & R) were below Rs. 10,000/-, as such they were awarded to the respondent being A-1 Contractor. After completion of those works, the same was recorded into measurement book (MB), and such entries were the proof of work done for which the department was liable to pay the respondent. Purportedly, the respondent has carried out numerous works of the said nature during the year 2004-2005, which were recorded in MB but the payments were not made. From the section mentioned in the impugned judgement, it transpires that the respondent had tried to get his payment released and after running from pillar to post, he filed the aforementioned suit, which was ultimately decreed up to the extent of prayer clauses (a) and (b). However, the remaining prayer clauses pertaining to damages for mental torture, agony and loss of business etcetera were not allowed through the impugned judgment and decree.

3. Mr. Miran Muhammad Shah, learned Addl. A. G. argued the matter at length. According to him, the learned Single Judge has given undue weight to the evidences produced by the respondent. He submitted that the respondent has produced photocopies of different documents without fulfilling the requirement of production of secondary evidence; as such the same was not admissible. According to him, the evidence of the appellants' side was not appreciated properly by the learned Single Judge. He submits that there is a presumption that the respondent has taken away the Measurement Book (MB), which may be gathered from the fact that he has annexed the photocopies of the said MB. He submits that all these facts have been described by the Executive Engineer in his Affidavit-in-Evidence (page-173) but the same were not considered by the learned Judge.

4. Malik Naeem Iqbal, learned counsel for the respondent, submits that in appeal, the appellant has to point out misreading or non-reading of the evidence. He submits that the learned Addl A. G. could not point out any misreading or non-reading in the impugned judgment. Regarding Affidavit-in-Evidence of the Executive Engineer, he submits that the same is full of contradictions and the said self-contradictory affidavit in evidence would not be helpful for the appellant during the trial or even in appeal. He submits that the Measurement Book remains in the custody of the Assistant Engineer or Executive Engineer and it is not believable that the same had been taken away by the respondent. According to him, the respondent has proved his case during trial; as such the suit was rightly decreed.

5. We have heard the arguments advanced and have gone through the available record.

6. The learned Addl. A. G has emphasised upon the Affidavit-in-Evidence of Mr. Nizamuddin Sheikh, Executive Engineer. We have gone through the said Affidavit-in-Evidence and found that the same is full of contradictions. In oara-2 of the said affidavit-in-evidence. Mr. Nizamuddin Sheik denied that the plaintiff (respondent) was a listed contractor. In contradictions, in para-2 of the said affidavit-in-evidence, Mr. Nizamuddin Sheik denied that the plaintiff (respondent) was a listed contractor. In para-3, he denied that any work was ever assigned to the respondent as category A-1 Contractor and according to him, some assignment shown by him cannot be construed as awarded to him, as the same was beyond the limit of A-1 category. Nevertheless, in the same breath, in para-9, Mr. Nizamuddin Sheikh admitted that certain works were assigned to the respondent but he took the plea that the payment of those works has already been made to him. Now, question arises, whether denial of status of the respondent as contractor and non-assigning of any work to him was correct or the pleas taken by him in para-9 were correct. We are of the view that the contradictory stance taken by the star witness of the appellant in his own affidavit-in-evidence makes him an unreliable witness. Hence, the learned Single Judge has rightly ignored his deposition on the fundamental point of the appellant case that the work was not assigned to the respondent.

7. We are also unable to understand the plea take by the appellants that the Measurement Book was misplaced and they presumed that the same was taken away by the respondent himself. The Measurement Book is an important document and the same always remains in the custody of Engineers and if it is misplaced, it creates a great spot of malfeasance upon those, who are the custodian of the same. Besides, it has also come on record that after missing of the MB, the Assistant Engineer and Executive Engineer did not bother to lodge even a non-cognizance report, which itself shows that how they behaved in case of missing of a valuable record. Besides, in case of missing of MB, the majority of civil work done can easily be re-entered in another MB by re-measuring the work done in brick and mortar. Nonetheless, it is also important that as soon as the MB was recorded, the entries ought to be verified and bills were prepared in the office of the Executive Engineer by recording the measurement in the requisite document, as such the measurement can again be obtained either directly from the site or from the other relevant record, which was never done.

8. So far as the plea taken on behalf of the appellants that the respondent (plaintiff) has produced photocopies without fulfilling the requisite formalities, we consider that the same is also not helpful to them. It is worth noting that any objection regarding an inadmissible piece of evidence is supposed to be raised at the very time of recording of the said evidence and not thereafter. It is a settled rule of jurisprudence that an inadmissible documentary vidence, if not objected, becomes admissible. In this respect, we would like to place reliance on a decision given by the Hon'ble Supreme Court of Pakistan reported as Muhammad Farooq v. Abdul Waheed Siddiqui and others (2014 SCMR 630), wherein it was held that 'Once any document was exhibited without objection from opposite side such document cannot be termed as inadmissible evidence.' We, therefore, could not find any misreading or non-reading of the available evidence, hence we have no option but to dismiss the instant appeal. Resultantly, the instant appeal is dismissed alongwith all listed/pending applications with no order as to cost.

9. Through a short order dated 01.10.2019, the instant High Court Appeal was dismissed alongwith all listed/pending applications and above are the reasons thereof. MH/P-3/Sindh Appeal dismissed.