P L D 1988 Karachi 470 (PLP)

AJMAL MIAN, J.‑‑ This appeal is directed against the judgment dated 7‑6‑1968 passed by a learned Single Judge in Suit No.201 of 1962 decreeing respondent's suit for a total sum of Rs.82,226 i.e. Rs.25,000 being the amount of first running bill in respect of the road work and Rs.57,226 being for the second measurement for sewerage work with proportionate cost and 6 per cent interest per annum from the date of the suit till the date of realization.

2. The brief facts leading to the filing of the above appeal are that two work orders were issued to the respondent on 9‑3‑1959 and 9‑6‑1959 to carry out road and sewerage works respectively at the KDA Scheme No.16, Federal 'B' Area, Karachi for Rs.4,75,314 and Rs.5,00,000, respectively. The agreement relating to the road work was executed on 27‑3‑1959 but no agreement according to the respondent was executed in connection with sewerage work as he was not supplied with any copy. The respondent started road work and sewerage work on 21‑3‑1959 and 20‑6‑1959 respectively. Some dispute arose between the appellant and the respondent ensuring of issuing of inter alia notices dated 10‑10‑1959 and further correspondence thereon. However, eventually the appellant cancelled the contracts on 22‑10‑1959. The respondent filed the aforesaid suit for the recovery of Rs.3,03,980.25 which claim was resisted by the appellant. On the basis of the pleadings of the parties the following 11 issues were issued: ‑ "(1) Did the plaintiff fail to observe the terms and conditions of the agreement? (2) Did defendants Nos.2, 3 and 4 start putting obstacles in the was of the plaintiff by finding unnecessary faults, by recording incorrect measurements and getting the payments of the bells delayed or stopped? (3) Were the materials and articles that were to be supplied by the defendant No.l either not supplied at all or not supplied in time? (4) Did defendants Nos. 2 to 4 ask other contractors to carry on the work of digging trenches at the same time and at the same place when and where the plaintiff was carrying out the work under the contracts in suit? (5) Did defendant No.l fail to make adequate supply of water as alleged in para. 4 of the plain t? ( 6) Was the work carried out by the plaintiff defective, inferior in quality and not according to specifications? (7) Was the cancellation of the contracts by defendant No.l before the expire of the time allowed by the contracts justified and not malicious and illegal? (8) What was the amount due to the plaintiff at the time of cancellation of the two contracts? (9) To what amount, if any, the plaintiff is entitled? (10) Are defendants Nos. 2 and 3 entitled to specific cost? (11) Did the plaintiff bring to the site 13,700 of stone metal and within the connivance of the then Assistant Executive Engineer, namely, Mr. Kazi lqbal Ahmed, got _ an entry fraudulently made in the measurement book though the quantity of the stone metal was 83,947 Cft.?"

3. The respondent in support of the suit examined as P.W. 1 6x.100, whereas the appellant examined D. W.1 M.A. Rahim. The parties also produced voluminous documentary evidence. The learned Single Judge after hearing the parties, by the judgment under appeal decided all the issues against the respondent but while dealing with issues Nos.8,9 and 10 awarded the above sum. The appellant being aggrieved by the above judgment and decree has filed the present suit.

4. It may be observed that in spite of repeated notices the respondent was not served with the notice of this Appeal, which was pending since 1968. However, in pursuance of an order of this Court the notice was published in the Daily Urdu Newspaper 'fang' dated 29‑4‑1987 for 18‑5‑1987 but the respondent did not put in any appearance in response to the above notice on the above date or thereafter. We, therefore, proceeded with the above appeal on 12‑10‑1987 and disposed of the same.

5. In support of the above appeal Mr. S.M. Kizalbash learned counsel for the appellant has vehemently urged that the learned Single Judge has erred in holding that the appellant is liable to pay the above sum as admittedly all the bills for the works executed by the respondent were paid. We have gone through the evidence and we find that in respect of road work following bills were prepared and paid to a respondent: (i) Ist Bill for Rs.48,899 Ex:103 M.B.No.263 at pages 52 and

53. Ex.109. (ii) 2nd Bill fen Rs.72,521 6x.104 Ex.104, M.B.No.263 at page 90. (iii) 3rd Bill for Rs.54,746 Ex.105 M.B.No.271 6x.110 at pages 39 to 42. (iv) 4th Bill for Rs.4,128.12 Ex.M.B.No.336 Ex.lll at pages 44 to

59. Sewerage Work. (i) Ist Bill for Rs.21,480.Ex.107 M.B.No.262 Ex.120 at page 58. (ii) 2nd Bill for Rs.9,041.27 Ex.1G8 M.B.No.337 Ex.124 at pages 98 to

100. The above documents indicate that factually the respondent was paid the above bills but it seems that M.A. Rahim the appellant's witness in his statement has admitted that a bill for Rs.72,000 was not paid. On the other hand the respondent in his statement has admitted the receipt of Rs.70,000 towards the second running bill. Since the above admission on the part of appellant's witness has been negatived by the statement of the respondent as well as by the documentary evidence, the same is liable to be ignored. But it appears that the appellant is liable to refund a sum of Rs.25,660 being the earnest money for the two contracts, i.e. 12,500 in respect of the road work and Rs.13,160 In respect of the sewerage work Exs.67 and 70, date. respectively, against which no amount was claimed either as a set‑off or counter‑claim.

6. We, therefore, allow the above appeal to the extent of reducing the decretal amount to the above sum of Rs.25,660 with proportionate cost and 6 per cent interest thereon from a date of the suit till payment. These are the reasons in pursuance of a short order of even A.A./K‑69/K Appeal partly accepted.