Syed Zahid Hussain, J.--A suit for recovery of Rs, 2,38,46,263/-instituted by the respondent was decreed by the learned Civil Judge 1st Class, Lahore to the extent of Rs, 1,70,33,045/- with interest at the prevailing bank rate with effect from September 1996 till the date of realization of the decretal amount vide judgment and decree dated 11.10.1999 whereagainst this appeal has been preferred by the Province of Punjab through Secretary to the Government of the Punjab, Irrigation and Power Department, Lahore and the Executive Engineer, Chackbandi Division, Mustafa Abad, Lahore.
2. The case of the plaintiff as setup in the plaint was that he had in execution of the agreements completed the works:--
(a) Repairing Bridge R.D. 227-B.G R.B.D. Link vide acceptance letter dated 15.4.1993.
(b) Protection of 'X Head Spur RD 288500 during flood of 1966 and checking erosion of River Ravi in Reach 288-289/Left B.R.B.D. Link Canal vide acceptance letter dated 3.9.1996.
(c) Constructing Stone Stud No, 1 vide acceptance letter dated 25.7.1996.
(d) Launching of Tree to protect the B.R.B.D. Link RD 288700 to 289700 during flood of 1996 vide acceptance letter dated 2.9.1996.
( e) Launching of Tree to protect Shank Bund RD 4000 to 4600 at Ravi Syphen including wire rope `U'
Clamp etc. vide letter dated 13.8.1994.
It was pleaded that despite completion of the works to the satisfaction of the department the payment was not being released due to paucity of funds. According to the plaintiff the completion of works and the amounts due found mention in the report of Superintending Engineer dated 12.1.1998. It was thus averred in Paragraph No, 5 of the plaint that the cause of action accrued in favour of the plaintiff firstly in September 1996, when the work orders were issued, secondly on 12.1.1998 when the Superintending Engineer made a confirmation to the higher authorities for the completion of the jobs, thirdly on 1.1.1998 when the legal notice was served and lastly on 7.8.1998 when the final notice was issued by the plaintiff. It was thus prayed that "a decree for Rs, 2,38,46,263/- may kindly be passed including compensation at the rate of 20% per annum with effect from September, 1996 with costs, till the date of realization." Through the written statement, which was filed by the appellants/defendants it was pleaded that the respondent/plaintiff had not invoked the arbitration clause. The valuation of the suit and payment of Court fee was also objected to. It was averred that scrutiny committee had been constituted pursuant to an order passed by the Lahore High Court where the matter could be examined and scrutinized. It was further averred that there was no cause of action in favour of the respondent/plaintiff and the suit was liable to be dismissed accordingly. In reply to Paragraph 5 of the plaint it was pleaded that "That para is denied. The confirmation of the executed works is under question and is being scrutinized by the. scrutiny committee." From the pleadings of the parties the under-mentioned issues were framed:--
(i) Whether the plaintiff is entitled to obtain a decree for the recovery of Rs, 2,38,46,263/- on the basis of facts mentioned in the plaint as prayed for ? OPP
(ii) Whether the suit is not maintainable in the light of preliminary Objections Nos, 1 and 3 ? OPD
(iii) Whether the plaint is not properly valued for the purposes of the Court fee and its jurisdiction, if, so what is the correct amount of the Court fee ? OPD (iv)Whether the suit is without any cause of action and plaint is liable to be dismissed t/O. 7, Rule 11 CPC ? OPD.
(v) Whether the suit is liable to be dismissed with special costs U/S..35-A CPC ? OPD,
(vi) Relief.
In support of his case the respondent/plaintiff produced Yousaf Ali. Accounts Clerk, Chak Bandi Division, Mustafabad, Lahore PW-1. Allah Dad Niazi Jamadar as PW-2 and statement of Ch. Barkat Ali, Chief Executive of the plaintiff's firm was recorded as PW-3. Documentary evidence Ex. P-1 to Ex.P-11 was also adduced. From the appellants/defendants' side Tariq Siddique Khokhar XEN, Chak Bandi Division, Mustafabad, Lahore deposed as DW-1. The learned trial Court recorded finding on Issue No, 1 in favour of the respondent/plaintiff that the same had been proved to the extent that the plaintiff was entitled to obtain a decree for Rs, 1;70,33,045/- and chose to take Issues Nos, 2, 3, 4 and 5 together, considering that the same were interconnected. Such disposition of the matter has been assailed that the suit was based on five different claims arising out of distinct transactions and that Issues Nos, 2- to 5 had distinct implications, which have illegally been clubbed and treated together. Findings on Issue No, 1 are assailed that the same are not backed by the evidence on the record and are rather based on assumptions, conjectures and surmises resulting in a decree not sustainable in law.
The learned counsel for the respondent/decree holder has referred to a report dated 12.1.1998 of the Superintending Engineer, Link Circle, Lahore to contend that the claim of the respondent/plaintiff was conceded and admitted and the suit had rightly been decreed. It is contended that resort to arbitration as per clause 65 of the agreement or to the scrutiny committee was not required as according to him there was no such dispute as could be referred or examined by any such forum.
Reference has been made to Itehad Cargo Services, National Hotel Lahore through Managing Partner and 2 others v. Rana Rafaqat Ali and 3 others (PLD 2002 Karachi 420) and Messrs Gulf Pacific Fertilizer, California, U.S.A. through Attorney v. Messrs Ali Akbar Enterprises and 2 others (2000 MLD 1537) to contend that after the filing of written statement the objection of the appellants/defendants as to arbitration clause had lost its efficacy.
3. The record has been perused by us and the case pleaded by the parties had been considered in the light thereof. As has been mentioned above the cause of action for the suit was pleaded in Paragraph No, 5 of the plaint, contents whereof were denied by the appellants/defendants, pleading that The confirmation of the executed works is under question and is being scrutinized by the scrutiny committee." In the light of the denial entered by the appellants/defendants it was the duty of the respondent/plaintiff to have proved its case by producing cogent and convincing evidence. The main reliance of the respondent/plaintiff was on some report prepared on 12.1.1998 by the Superintending Engineer from which an inference was sought to be drawn that the claim of the respondent/plaintiff stood admitted and proved. On perusal of the record of the trial Court we have, however found that there is a photocopy of a report which was neither proved of exhibited as piece of evidence nor confronted to the Superintending Engineer by calling him as a witness. The learned counsel for the respondent/plaintiff. However, stated that the said report is part of Ex. P-7.
The assertion, however, it not supported by the record. We find that Ex. P-1 to Ex. P-10 were adduced in evidence through Yousaf Ali, Accounts Clerk PW-1 and Ex., P-11 through Allad Dad Niazi Jamadar PW-2. In the statement of Yousaf Ali Accounts Clerk PW-1, the description of Ex. P-7 is measurement book page from 132 to 144 Ex. P-7". The perusal of Ex. P-7 starting from pages 132 to 144 shows that the same is a copy of printed book with hand written entries. That is all what Ex. P-7 is. It is thus misconceived that the report dated 12.1.1998 (relied upon by the respondent/plaintiff) was part of Ex. P-7. Likewise Ex. P-11 consisting of 28 pages is a photocopy of hand written entries. Report dated 12.1.1998 is not part of Ex. P-11 even. It thus has remained an assumption that such a report of the Superintending Engineer dated 12.1.1998 was part of the evidence on the record. The inferences drawn by he learned trial Court were more based on assumptions rather than the proved facts. He has assumed as if the entire work had been completed by the respondent/plaintiff but was not made payment. Indeed the statement of Tariq Siddique Khokhar, Executive Engineer, DW-1 was misread and misconstrued, wrongly attributing an admission of the liability to him. It had been stated by him that five separate works were allotted to the respondent/plaintiff but sanction of only one work had been given and the estimate of four works had not been sanctioned by the authority.
It was stated by him that the claim of the respondent/plaintiff had been sent to the scrutiny committee for verification and finalization. In presence of such a stance of the appellants/defendants (as pleaded in the written statement) and the statement of Tariq Siddique Khohkar, Executive Engineer, DW-1 that the claim of the respondent/plaintiff had yet to be scrutinized and finalized, the trial Court clearly took an erroneous view of the matter as if the works were completed to the satisfaction of the competent authority and the payment, therefore, had to be made to him, which was decreed.
4. As mentioned above, Issues Nos, 2, 3, 4 and 5 were taken and disposed of together by the trial Court. The perusal of these issues would show that the same had different scope and implications Order XX of Code of Civil Procedure, 1908 deals with the judgments and decrees. Rule 5 thereof enjoins upon the Court to record findings and decision upon each issue separately. In Ali Muhammad v. Muhammad Hayat and others (1982 SCMR 816) it was observed that the trial Court had "disregarded the mandatory provisions of Order XX, Rule 5, C.P.C. and, therefore, had acted in exercise of his jurisdiction with material irregularity." The High Court in that case had remanded the case to the trial Court for rewriting judgment as the later had decided Issues Nos, 1 to 5 without recording findings on each separate issue. The judgment of High Court was maintained by the Hon'ble Supreme Court. In Mst. Gul Shahbah v. Civil Judge-III/Judge Family Court, Haripur and 2 others (PLD 1992 Peshawar 13) and Haji Abdul Jalil v. Anjuman Jame Masjid Haquani (1996 MLD 818) also similar view was taken. It may, however, be observed that in the civil litigation the conduct of the litigants also become relevant inasmuch as if in a case an issue is not pressed, the Court would not be obliged to record findings thereon. In the present case, however, the perusal of issues Nos, 2 to 4 would show that each of the issue had an important bearing and finding was to be recorded separately on each of them. Paragraph 15 of the judgment of the learned trial Court, however, shows that after noting the respective contention of the learned counsel qua the valuation of the suit and the Court fee (Issue No, 3) no finding was recorded by the trial Court. Likewise the Court proceeded on the assumption in deciding rest of the issues as if the claim of the respondent/plaintiff had been admitted by the appellants/defendants. Such was an erroneous approach to the matter inconsistent with the plea taken in the written statement by the appellants/defendants and the deposition of Tariq Siddique Khokhar, Executive Engineer DW-1. In such view of the matter, we are ..unable to affirm the approach adopted by the trial Court in its judgment dated 11.10.1999 or granting decree in favour of the respondent/plaintiff.
Considering all aspects of the matter we have come to the conclusion that remand of the case to the trial Court for decision afresh after affording opportunity of ,hearing to the parties would serve the ends of justice. The impugned judgment and decree is thus set aside accepting the appeal accordingly. The parties to cause their representation before the trial Court on 3.5.2004. Office to ensure that the records are despatched and sent to the trial Court well in time.
No order as to costs.