' MIAN SAQIB NISAR, J.---The present appeal is directed against the judgrrient and decree dated 5- 4-1995 of the learned trial Court, whereby the suit for the recovery, filed by the respondent against the appellants claiming an amount of Rs.94,96,356.27 has been decreed to the tune of Rs.44,96,356.27. Hence this appeal by the defendants.
2. Briefly stated the facts of the case are that, the parties entered into a contract for the completion and rectification of the left over work of External Sewerage System (Phase-I) at Gujranwala Cantt.
The appellant is the employer, whereas the respondent is the contractor for the aforesaid job and the contract has been described as a lump sum, for an amount of Rs.1,53,99,874. The respondent completed the work and submitted its final bill dated 1-1-1986, amounting to Rs.55,69,756.27, to the appellant, which was not paid, rather after deducting certain amounts from the bill, only an amount of Rs.10,73,199.99, was offered to the respondent, against which the respondent initially protested, but thereafter, specifically withdrew the protest, corrected and reduced the bill amount to the tune of Rs.10,73,199.99 and received the said amount. Anyhow, on 9-1 1008. The respondent brought the suit for the recovery of the amount mentioned above, as damages and compensation, which after the trial has been partly decreed to the extent of Rs.44,96,356.27. Hence this appeal by the defendant/judgment debtor.
3. It is the case of the respondent/plaintiff that the final bill was prepared in accordance with the nature and the quantum of the work executed by it, at the site. All the necessary details regarding the work so done, are mentioned in the said bill. The functionaries of defendants made some inquiries vide letter dated 3-4-1986, which were accordingly replied and explained to them, but surprisingly, the fall amount was not disbursed. It is alleged in the plaint that the appellant/defendant did not pay the respondent for the extra work of more than 5% of the contract price, which was got executed from the respondent/plaintiff with the assurance of consequential payments; similarly unauthorized and unlawful deductions were made, against the non-use of sulphate resistant cement, whereas such cement was factually used where ever it was required to be utilized under the contract; the deduction of certain amount for the replacement of the damaged electric cable, which was mended in terms of the contract, could not be recovered from the plaintiff; the non-award of the compensation for the back filling, is illegal and unlawful.
Moreover, the professional taxes have been deducted from the respondent unauthorizedly which was not the liability of the plaintiff. The details about the illegality committed and deduction made are provided in Annexures A to D to the plaint, which is stated to be read as a part thereto. The suit was contested by the appellant, controverting the material assertions of the plaint and denying the entitlement of the plaintiff qua the said claims. Thus on account of the pleadings of the parties, the learned trial Court, framed the following issues:-- ' Issues:---
(1) Whether the plaintiff is entitled to recovery of Rs.94,96,356.27 on account of outstanding claim due from the defendants? OPP
(2) Relief.
4. The parties were put to trial. The respondent/plaintiff produced Iftikhar Ahmad Farooqi P.W.1, Azher lqbal P.W.2, Tariq Waseem P.W.3 and Mirza Baber Ahmad Beg P. W.4, besides the documents Exh.P.1 to Exh.P.41, were tendered in evidence. Against the above, the appellants examined four witnesses. D. W.1 is Ghazi Marjan, Garrison Engineer, D.W.2 is Zaheer Ahmad, Assistant X.E.N., D.W.3 is Javed Saleem, X.E.N. And D.W.4 is Muhammad Akram, S.D.O. However, no documentary evidence was produced by the appellants.
5. On the conclusion of the trial, the learned Court below vide impugned judgment and decree, decreed the suit to the tune of Rs.44,96,356.27. However, the remaining claim of the respondent, which essentially is in the nature- of damages has been disallowed. Hence this appeal.
6. While attacking the judgment and decree of the Court below and seeking dismissal of the suit of the respondent, Mr. Sher Zaman, the learned Deputy Attorney General, has urged the following points:--
(i) Proper issues were not framed, which has led to a wrong decision by the trial Court on the merits of the case.
(ii) There is no reliable evidence on the record on the basis of which the suit could have been partly decreed in favour of the respondent.
(iii) That after the payment of amount of the final bill, which was reduced by the respondent itself, the respondent is estopped to claim any further amount. Because in the contract, it is specifically stipulated between the parties that on the payment of the final bill, the respondent shall not be entitled to claim any further amount, which will be the full and final settlement of the claim between the parties under the contract.
(iv) That under the contract, which is governed by the P.A.F.W.-2159, the Condition No.65, clearly postulates that where the contract is in the nature of lump sum amount, as is in the present case, the contractor shall not be entitled to any amount on account of additional work etc.
(v) That the respondent under clause (c) and (e) of ihe contract (Exh. P. 1), was not entitled to claim any amount on account of back-filling or for any unforeseen items of work, but this amount too has been awarded to the respondent by the learned trial Court.
7. While arguing his first point, learned D.A.-G. Has taken us through paragraphs Nos.7 to 9 of the plaint, in which, the respondent has set out the basis of his claim and the corresponding paragraphs of the written statement, in which, those assertions/claims are denied, therefore, it is submitted that where each part of the claim of the respondent was independent disputed proposition, the Court should have framed the separate issues, for each head/item and by not doing so, serious prejudice has been caused to the appellant. It is submitted by the learned D.A.-G.
That under Order XIV, rule 1, C.P.C., it is primarily the duty of the Court to frame the correct issues irrespective, whether the parties have sought the indulgence of the Court in this behalf or not.
Because the Court has failed to discharge its basic obligation, therefore, the trial as also the impugned judgment and decree stand vitiated. In this behalf, he has made reference to section 99 of the C.P.C. And has also relied upon the judgments reported as Aziz-ur-Rehman v. L.D.A. 1985 CLC 2028; Mst. Sughran Bibi v. Mst. Jameela Begum and others 2001 SCMR 772; Muhammad Yaqub v.
Khushi Muhammad 2003 MLD 147; Pakistan through Secretary to Government of Pakistan Ministry of Railways Islamabad v. Messrs Rajastan Alloys and Steel (Private) Limited PLD 2000 Lahore 157; Mansab Ali v. Hafizan and 5 others PLD 1993 Lahore 1 and Qurban Hussain v. Mst. Bashir Begum and others PLD 1986 SC (AJK) 109.
8. We have heard the learned counsel for the parties on this legal proposition and in view of the case-law cited below, particularly, the latest view of the Honourable Supreme Court, we find no force in the argument. The judgments in this behalf are Fazal ur Rehman v. Begum Sughra Hague 2002 YLR 2717; The Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82; Mehr Din v. Dr. Bashir Ahmed Khan and others 1985 SCMR 1 and Fazal Muhammad Bhatti v. Mst Saeeda Akhtar etc. 1993 SCMR 2018. It is not established from the record that the appellant pressed for the framing of any further issue and due to the lack in this regard, any prejudice of any nature, whatsoever, has been caused to it. Moreover, in the instant case, Issue No.1 is comprehensive, both the parties were cognizant of the nature of the dispute and accordingly led the evidence, which was relevant for the proof or disprove of each part of the respondent's claim. It is clear from paragraphs Nos.7 to 9 of the plaint, which were refuted in the written statement that the respondent was seeking the decree on account of the specific claims, which it had to prove and then it was for the appellant to disprove the facts forming the basis thereof. It is not the case of the appellant that in view of the sole issue, it was misled and could not adduce any evidence. It may be reiterated that throughout the trial, the appellant never applied to the Court for the framing of any further issue, resultantly, though there being the only issue, but when the Court below has dealt with each part of the respondent's claim separately, and there is enabling evidence on the record in 'this behalf, produced by both the sides, the appellant cannot make any grouse on account of the above plea.
9. As far as the submission that no credible evidence has been led by the respondent to prove its respective claims, we have examined the record and find that there was no justification for the appellant to have deducted the amount of the professional tax, because the learned D.A.-G., has not been able to show, if this deduction was justified under the contract or any law in vogue for the time being, rather when particularly questioned, the learned Law Officer, conceded that such tax could not have been deducted.
10. For the claim of respondent about the deduction of Rs.8,40,933.10, due to the non-use of sulphate cement; according to clause 6 of the contract, it is clearly specified as to where the sulphate cement, as against the ordinary cement has to be used; the sulphate cement was only required to be used in the work falling in the category of BSS, which is in the sewer pipe and plastering; there is no dispute that the respondent has used the sulphate cement in these works.
Even the appellant through its letter dated 20-7-1983 Exh.P.12 has admitted this mistake and has conceded that 'as per the contract, the sulphate cement was to be used only in the above work.
Moreover, while making the payment of monthly running billsi, no objection was ever raised by the appellant that the sulphate cement has not been used in the work other than the sewer pipes and plaster; and these bills were paid to the respondent, without any objection. It may also be expedient to mention here that the witnesses of the appellant appearing as D.Ws.3 and 4, have conceded that in the other contracts of the similar nature, completed by other contractors, ordinary cement was used in the same nature of work and no deduction have been made from the said contractors; further in the letter Exh.P.40, dated 11-6-1986. By the appellant to the respondent, no such defect or deficiency in the use of sulphate cement was pointed out, resultantly, the deduction of the amount of Rs.8,40,933.10 from the final bill of the respondent was absolutely illegal and unwarranted and has been rightly so, held by the trial Court, therefore, to this extent, the respondent is entitled to the decree.
11. About the deduction of Rs.46,689.20 on account of the damage to the electric cable and its replacement value is concerned; according to clause 5-C of the contract, if any damage is caused to the cable, due to the act of the respondent, the respondent is supposed to repair the damage; accordingly, the respondent had repaired the cable which remained in the use for about one year.
During this period, the respondent never demanded the replacement, but surprisingly after the completion of the work and the stage of the final bill, when there was no complaint that the cable is not in the working order, the deduction could not have been made from the final bill of the respondent. Thus this deduction has been rightly adjudged illegal and unlawful by the trial Court, which decision we hereby endorse.
12. Before proceeding to examine the other claims of the respondent, i.e. About compensation for the deviations ordered in the work; additional work directed and the compensation for the back filling, we would like to meet the argument of the learned counsel for the appellant that according to the terms of the contract and the stipulation in the final bill itself, if the respondent receives the final bill, without any protest, that shall be deemed to be waiver for any other claim amount over which, the respondent may have disagreement or dissatisfaction. The submission that though earlier the respondent through various letters, did protest about the disputed deductions, but thereafter, the protest was withdrawn, which fact has been admitted by the Chief Executive of the respondent, while appearing as a witness; moreover, the bill was duly corrected to the extent of the Rs.10,73,119.19, which amount was received by the respondent, as a full and final settlement, therefore, the respondent has waived its right to claim any further amount. We are afraid . That this plea of waiver has not been set out in the written statement. It is settled law that no one can be allowed to plead a case beyond the scope of its pleadings, and we are not convinced that the plea now intended to be agitated, is purely in the nature of a legal question which can be permitted to be taken at any stage of the proceedings, including the appeal forum. To our mind, if the appellant wanted that the respondent should be non-suited on the plea of waiver as well, it should have taken the plea in the written statement; and pressed for the framing of the issues, should have led evidence in this behalf, with a chance given to the respondent to factually rebut that its case is not hit by waiver. But all this is conspicuously missing. Therefore, we are inclined to overrule the objection of learned D.A.-G.
Now considering the above mentioned claims of the respondent on merits, suffice it to say that the contract in question is lump 'sum in nature, and is for the specific amount; it is specifically stipulated in the contract that no deviation or additional work shall be carried on by the respondent, except on the written orders of the competent officer/authority. The appellants were thus not obliged to conduct any work, which amounts to deviation or additional work if not directed in writing. Obviously, if such work has been directed by the competent Authority and is carried out by the respondent, there could only be on the basis of written order. But, for no good reason, the respondent has failed to place on the record any such material and therefore, the presumption of withholding the best evidence can be validly drawn against it. Even otherwise, while submitting its running bills, it was never claimed that any additional work has been done by the respondent or the deviations in the execution of the work, beyond the scope of the contract and BOQ's, has been ordered by the competent Authority and conducted by the respondent, for which, the respondent reserves its right to claim the compensation thereof. The argument of the learned counsel for the respondent that admission have been made in this behalf by the appellant's witnesses in their statements and the officers of the respondent's department while appearing for the respondent, have also conceded the above position, suffice it to say that there is a clear stipulation in the contract between the parties, catering for the situation about the deviations and additiorial works.
Thus where the parties had agreed in writing for an act to be performed in a particular manner, until and Unless a novation of the contract is establighed on the record, the respondents could not rest its claim on some verbal orders, creating contractual rights and obligations inter se the parties.
Moreover, the oral evidence has to give way to the documentary evidence, which should have been produced by the respondent, for the proof of the above claims. If for any reason, the necessary documents were not in possession or power of the respondent, those could have summoned from the record of the appellant's department. But this was not so done.
' As regards the claim of the respondent for the back filling is concerned, it may be held that the contract in question was a lump sum contract. The respondent had undertaken the task after due inspection of the site enabling it to evaluate and ascertain the nature of the work and the back filling, which was necessary, therefore, if some extra back filling has been done by the respondent, which otherwise is not proved, on account of any documentary evidence and the respondent did not press his application for the local inspection in this behalf, resultantly, to the extent of this claim, respondent is not entitled and therefore, decree awarded for the claim by the trial Court is liable to be set aside.
In the light of above, we are constrained to hold that the respondent was only entitled to the amount of Rs.46,689.20, deducted from his final bill on account of replacement value of the alleged damaged cable; Rs.5,000, deducted for the recovery of professional tax and an amount of Rs.8,40,933.10, for the non-use of sulphate cement, thus totalling amount to Rs .8,92,622.30, whereas for the remaining amount awarded to the respondent, by the learned trial Court, the decree has been erroneously passed, which to that extent is hereby set aside, thus by modifying the impugned decree, the suit of the respondent is decreed to the extent of Rs.8,92,622.30 and for the rest, the same is dismissed with no order as to costs. Appeal is accordingly partly allowed.