' SYED ZAHID HUSSAIN, J.---A suit for recovery of Rs,26,67,341 instituted by the plaintiff-respondent (herein) was decreed by the learned trial Court vide its judgment and decree dated 25-1-2001.
Through this R.F.A., the said judgment and decree has been sought to be challenged.
2. Learned Assistant Advocate-General, has assailed the adverse findings of the learned trial Judge on respective issues. It is contended that Clause 65 of the agreement which provided a forum for settlement of dispute through arbitration was not adhered to by the plaintiff-respondent, the suit, therefore, was not maintainable. The jurisdiction of the trial Court at Lahore has also been questioned that qua the subject-matter and the cause of action only Court at Okara had the jurisdiction in the matter. It is further contended that since the Scheme-Bund System was not sanctioned by the competent authority, the respondent/ plaintiff was not entitled to work and to claim payment for the work done. Finding recorded by the trial Court and granting decree in favour of the plaintiff-respondent is thus challenged as illegal and result of misreading/non-reading of evidence.
3. The learned counsel for the respondent, on the other hand, while supporting the impugned judgment and decree contends that the Court at Lahore had jurisdiction and that the matter of reference to arbitration stood concluded by order dated 27-2-1999 when application filed by the appellants under section 34 of the Arbitration Act, 194Q was dismissed by the trial Court which order was not challenged any further. It is further contended that Exh.P.3 which contains the admission and acknowledgement as to the amount due was not disputed or denied. According to him, the liability having been admitted, the suit has rightly been decreed by the trial Court., Reference has been made by him to Faqir Muhammad v. Pakistan through Secy. Ministry of Interior and Kashmir Affairs Division Islamabad 2000 SCM R 1312 that the Court at Lahore had the jurisdiction.
4. The material on the record has been considered and examined with the assistance of learned counsel for the parties. The case of the plaintiff-respondent was quite simple and straight whose grievance was that despite completion of the work awarded to him the payment of the due amount had been withheld for no valid justification. In support of his assertion, he appeared himself as P.W.2 and produced documentary evidence such as Exhs.P/1 to P/4. Muhammad Safdar Clerk, Office of XEN was also produced as P.W.1. From the appellant's side Naveed Ali Shah D.W.1, Executive Engineer, appeared but was unable to deny or rebut the issuance of an important letter dated 7-4-1997 by which the plaintiff-respondent was informed that "your final bill regarding the said completed work has since been prepared for payment accordingly". The letter further contained an assurance that the balance claim was never denied and the payment will be released on availability of funds from the Government. The presence of such acknowledgement and admission on the part of the appellant goes a long way to support the claim of the respondent coupled with the evidence led by the respondent. The finding thus recorded by the learned trial Judge finds due support and backing from the material on the record and suffer from no infirmity.
5. So far as the contention as to the availability of arbitral forum is concerned, the matter stood concluded with the order dated 27-2-1999 which was not challenged by the appellants although remedy of appeal was open to them under section 39 of the Arbitration Act, 1940. The plea, however, also loses significance in view of the admission of liability as per letter dated 7-4-1997.
6. The contention of the learned A.A.-G. That Court at Lahore had no jurisdiction, is not tenable in the circumstances, inasmuch as the trial Judge has recorded the finding that cause of action partly arose in Lahore as well therefore, Lahore Court had jurisdiction in the matter. Nothing has been brought to our notice to dislodge such findings recorded by the trial Court rather the assertion of the plaintiff-respondent made in paragraph No,8 of the plaint that work order was issued at the instance of defendant No,1 at Lahore lends support to the view taken by the learned trial Judge.
7. As a result of the above, we find no merit in this appeal. It is dismissed with no order as to costs.