SARDAR MUHAMMAD ASLAM, J.---This regular. Second appeal is directed against the concurrent judgments and decrees passed by the learned Courts below in a suit filed by the appellant for recovery of Rs.20,18,000 contending therein that Muhammad Akram, proprietor obtained a contract of storage sheds in Gujranwala Cantt. On the basis of agreement, which was signed on 17-8-1976, the copy of which was .Supplied to the petitioner. The original was retained by the Controller of Military Accounts. Plaintiff was to be paid Rs.9,88,800 as R.A.R., on work done basis, during the progress of work but. Later on the respondents/defendants fraudulently changed the actual total figure at page No.3 of the agreement from Rs.9,88,800 to Rs.9,50,000 by forging signatures of the plaintiff. Before March, 1978, 98% work was completed by the plaintiff but his 12th instalment was withheld and the respondents cancelled the contract by applying penal clause against the appellant mala fide. He was also not paid anything for additional work done by him. Building material wroth Rs.2,50,000 belonging to the appellant was also misappropriated by the defendant and thereafter the defendant from the list of contractor struck of the name of the appellant. The defendant contested the suit. Controversy gave rise to framing of issues. The learned trial Court dismissed the suit of the appellant vide its judgment and decree dated 24-10-1987. An appeal was preferred by the appellant before this Court which was sent to the learned District Judge, Gujranwala in view of amendment in Civil Court's (Amendment) Ordinance, 2002 for decision according to law, which came up for hearing before the learned Additional District Judge, Gujranwala, who on 6-10-2003 dismissed the same.
2. Learned counsel for the appellant argued that the judgment of the learned First Appellate Court is in disregard of provision of Order XLI; rule 31, C.P.C.
3. On the other hand, the learned counsel for the respondent at the very outset, raised an objection that this regular second appeal is not maintainable as copy of the impugned judgment and decree of the learned trial Court has not been filed with this appeal. On merits, he argued that findings of fact has been recorded by the learned Courts below, on appraisal of evidence, which cannot be questioned in regular second appeal, which is entertainable only on point of law.
4. I have considered the submissions of the learned counsel for the parties and perused the record.
5. Exh.P. 1 is the contract entered between the parties. The original amount Rs.9,88,800 was reduced to Rs.9,50,000 at the instance of the plaintiff. It was initiated by him. Though the plaintiff denied the same in his examination on entering into witness-box as P.W.6 but P.W.5 Bashir Ahmad Malik, S.D.O.
Stated that work order contained the signature of the plaintiff and reduced amount in contract also bears his initial. From evidence, it is established that the plaintiff willingly reduced the amount of contract from Rs.9,88,800 to Rs.9,50,000. Findings on Issues Nos.6, 7 and 8 was thus, correctly recorded by the learned Courts below and do not call for any interference. As far as Issue No.9 is concerned, plaintiff's claim is to entitlement of Rs.1,03,000 in his 12th R.A.R., on the basis of rates detailed in approved schedule of the contract. P.W.4 Ch. Abdul Rashid, Garrison Engineer appeared along with record of R.A.R.12 which was exhibited as Exh.P.12. He stated that the payment of 12th running R.A.R.12 was not made as the plaintiff failed to remove the defects pointed out to him. The' plaintiff as P.W.6 stated that no defect was pointed out to him, hence his entitlement was proved.
D.W.2 Javed Saleem, Executive Engineer stated that the plaintiff did not undertake the work according to their satisfaction. Progress was very slow. Notices were issued to him. He placed on record copies of notices issued on 18-5-1978, 27-5-1978 and 7-9-1978. However, only notice dated 7-9-1978 was exhibited, as Exh.D.2 while the other was not taken on record, having not been relied upon. He stated that the plaintiff did not respond to the notice, hence penalty clause was invoked on first June, 1978 after expiry of extended period on 31st May, 1978. On 17-10-1978 the Chief Engineer cancelled the contract. The plaintiff was addressed memo. Exh.P.16 for joint measurement. He was also issued letter Exh.P.17 and Exh.P.19. He did not turn up. The Board conducted measurement. The articles were adjusted and credit was given to the plaintiff. D.W.3 Muhammad Saleem Baig stated that he was one of the 'members of joint measurement. They correctly conducted measurement, prepared the list of inventory. Credit was given to the plaintiff of his articles delivered to the new contractor. The plaintiff was thus, not entitled to any relief as claimed by him under Issue No.9.
Above discussion answers Issues Nos.12 and 15 against the plaintiff. No evidence is available on record on Issue No.13. It was rightly decided against the plaintiff by both the learned Courts. Issue No.16 was not pressed, by the learned counsel for the plaintiff before the learned trial Court, hence no finding is required. Issues Nos.14 and 15 can be disposed of together conveniently. The respondents took the left over material into account. P.W.2. Is Chowkidar of the Firm. The list of articles taken into account was placed as Exh.P.6. D.W.2 and D.W.3 stated that the articles were given to the new contractor on cancellation of contract. The amount was adjusted and credit was given to the plaintiff. List of articles given by the plaintiff Exh.P.5 cannot be believed as the same was prepared in absence of the respondents.
6. Contract was rightly cancelled and penalty clause was invoked, as the plaintiff failed to complete the work even in the extended period of time. Extensions were granted to him. He failed to complete the work. Documentary evidence in the form of Exh.D.2, .Exh.P.14, Exh.P.18, Exh.P.20 and.
Exh.P.22 were considered and a finding was recorded against the plaintiff. The respondents were not left with any alternate except to invoke the penal clause and cancelled the contract of the plaintiff.
7. Regular second appeal was filed on 12-4-2004. Objection was raised that the judgment and decree of the learned trial Court has not been filed. The same was however, not attended to. By the appellant. Case came up for hearing in the Court on 6-5-2004. Record was requisitioned. It was fixed on 1-11-2004. An adjournment was sought by the learned counsel to examine the record. On 23-11-2004 pre-admission notice was issued to the respondent through learned Standing Counsel subject to competency of regular second appeal, in absence of judgment and decree. Case was adjourned to 14-12-2004 and to 19-1-2005. It was again adjourned to 15-2-2005 on the request of the learned counsel for the appellant. On this date, he again made request for adjournment and it was fixed for 17-2-2005. On 17-2-2005 Civil Miscellaneous No.120/C of 2005 was filed seeking dispensation of the copy of the judgment and decree of the learned trial Court. As mentioned above, the appellant did riot file copy of the judgment and decree of the learned trial Court in spite of objection raised by the office. The appellant instead of complying with the objection, and after a period of 10 months, moved this petition (C.M. No.120/C of 2005) for exemption. Law on the subject is settled. Regular second appeal in absence of copy of the judgment and decree of the learned trial Court is not maintainable in law. Reference can be had to Siraj Din and another v. Muhammad Ishaq 1981 CLC 1740; Kala v. Allah Dad PLD 1977 Lah. 376; Muhammad Hanif v. Faqir Muhammad PLD 1977 Lah. 1214 and Akbar Khan v. Muhammad Razzaq alias Abdul Razaq PLD 1979 SC 830, wherein it is held that an appeal in absence of impugned judgment and decree of the learned trial Court is not maintainable. Record of the learned trial Court is available' and non-filing of certified copy of the judgment and decree of the learned trial Court remained a mere technicality, but I am not inclined to dispense with the production of copy of the judgment and decree of the learned trial Court as the appellant was negligent, and did not advert to the objection raised on this count. I take above view for not allowing application for dispensation for the reason that the appellant has failed to prove its case on merit. Both the learned Courts below have rightly returned findings against the appellant. No question of law has arisen, therefore, this appeal is dismissed on the ground of non-filing of copy of the judgment and decree of the learned trial Court as well as on merits.