' SH. HAKIM ALI, J.---Province of Punjab and two others have assailed the validity of the judgment and decree, passed by learned Civil Judge 1st Class, Muzaffargarh in a Civil Suit No.392 of 2000, instituted on 6-10-1998 and decided on 16-1-2001, by which a decree for recovery of Rs.52,50,282 along with markup, according to the approved rate of National Bank of Pakistan from the date of completion of work till the payment of the amount, was passed against the appellant and in favour of Messrs Sajid Traders, respondent.
2. Facts as narrated and found from the record in brevity are that Sajid Hussain Shah, posing himself, the sole proprietor of Messrs Sajid Traders, filed a suit for recovery of Rs.52,50,282 with regard to the following works granted to him and completed by his own self in the year 1995-1996 and 1996-1997, as a Government approved Contractor of Canal Department. The details of the work as narrated in the plaint are reproduced as below:-- S. No.Detail of work Year of agreement 1 Protecting Rohari flood bank. 1996-97 2 Protecting left bank Muzaffargarh Canal. 1996-97 3 Improving left and right bank Muzaffargarh Canal. 1996-97 4 Bank improvement of Muzaffargarh Canal. 1996-97 5 Bank improvement of Muzaffargarh Canal. 1995-96 6 Brim cutting desilting andremoving of Jungle Bait Distri Butery Wala.1995-96 Date of completion of work.Cost of work (to be paid by defendants).
15-8-1996 Rs.92,594 8-8-1996 Rs.14,93,613 27-7-1996 Rs.12,45,501 14-7-1996 Rs.13,48,928 11-5-1996 Rs.5,44,971 27-4-1996 Rs.5,24,675 ' Giving details in the plaint, it was asserted by the plaintiff that the above mentioned works were to be executed at the site, so the tender rates were invited by Executive Engineer, Muzaffargarh Canal Division, defendant No.3 (present appellant No.3), and that the plaintiff had filed tenders for these works, which were approved, and agreements were executed and the work orders were issued to the plaintiff, and the plaintiff had completed these works within the prescribed period, which were found in accordance with the specification, prescribed by the concerned officers. All these works were duly entered in the measurement book. Bills were prepared at the instance of defendant No.3, XEN, but without any reason, amount was withheld and not paid. The plaintiff was entitled for the amount as well as the markup from the date of completion of the works till its payment. The above noted suit was resisted by filing of a written statement by the appellants/defendants. Besides the preliminary objections, in factual part of the written statement, up to the extent of Work No.1 (Protecting Rohari Flood Bank), all the other above noted works at Serial Nos.2 to 6, were denied to have been granted to the plaintiff or there were any agreement executed. It was stated that no agreement was available with the Department, in the Government record. It was replied clearly that the plaintiff had filed a false, baseless suit on the basis of fictitious prepared bills, and that he was not entitled to be granted decree as prayed for. In preliminary objections, it was also objected that plaintiff was bound to invoke Arbitration Clause No.65 of the agreement, so the suit was not maintainable; plaintiff had not approached the Court with clean hands; the Court had got no jurisdiction to entertain the suit and the proper court-fee was not affixed and paid in the suit. Upon these pleadings of the parties, following issues were framed:--
(i) Whether the plaintiff is entitled to recover disputed amount from the defendant as prayed for?
OPP
(ii) Whether the suit is not maintainable in view of preliminary objection No.1 of the written statement? OPD
(iii) Whether the plaintiff has come to the Court with unclean hands? OPD
(iv) Whether this Court lacks jurisdiction to try this suit? OPD
(v) Relief.
3. To prove his case, plaintiff has brought into his evidence P.W.1 Iftikhar Ahmed, P.W.2 Muhammad Khalid, P.W.3 Shafique Ahmed and plaintiff himself had appeared as P.W.4. In the documentary evidence, copy of measurement book, Exh.P-1 was brought on the record, while defendants/appellants produced Maqbool Ahmed Khan, XEN Canal, Muzaffargarh as D. W.1 and closed their evidence. After evaluating the evidence of the parties, the learned Civil Judge as noted above, passed the decree awarding the amount of Rs.52,50,282 with mark-up to the plaintiff/respondent against the defendants/appellants. Hence, this regular first appeal.
4. Mr. Azmat Ali Khanzada, Government pleader, appearing on behalf of appellants submits that the learned Court below has wrongly awarded decree to the plaintiff/respondent although plaintiff/ respondent was not granted any work except the Work No. 1 . He has also argued that plaintiff had failed to prove his case but the learned Court below had granted the decree on the basis of sole document, Exh.P-1 and upon the evidence of P.W.1. The evidence of the witnesses of the plaintiff was not correctly appreciated. He has referred to a few portions of the evidence also.
On the other hand, the learned counsel for the respondent, has supported the judgment and decree passed in favour of plaintiff/respondent.
5. We have given our anxious thought to the arguments of the learned counsel and have meticulously perused the record of the suit, with the assistance of the learned counsel for the parties. The conclusions drawn from the appraisal and scanning of the record by us is given as under:--
(i) The case of the plaintiff/respondent as averred in the plaint was that he was granted works at Serial Nos.2 to 6 (details noted above) by respondent No.3, which assertion has been categorically denied by the defendants/appellants. To prove Issue No.1 the burden of which was placed upon the shoulder of the plaintiff, it was incumbent upon the plaintiff, to bring on record the advertisement of inviting tenders, approval of tenders, execution of agreements and the work orders issued in his favour. We have noted that all the above mentioned documentary evidence has not been produced by the plaintiff, which was essential and material evidence to determine the fate of the entitlement of the plaintiff. On what date, month and year, these works tenders were invited, who had approved it, had issued the work orders, executed the agreements could be easily proved by the plaintiff by calling/ summoning the relevant record of the department, if the works were granted/allocated and completed by him on behalf and for the department. It is worth-mentioning that the plaintiff has failed to make even a simple attempt to summon for the production of these alleged documents. The learned counsel for the plaintiff/respondent upon our query has replied that the record was with the defendants, who had not produced it in the Court. If we accept this explanation to be true and correct, then where are those efforts by the plaintiff to bring those documents on the record. As we have not found any such attempt, so we cannot accept this reply submitted by the learned counsel. It is worth-mentioning that there are three documents, which in natural course of events are to be retained and should be possessed by the plaintiff. The executed original agreement or its second copy, the approval of and the work orders issued in favour of and to the plaintiff. We have not been able to find out from the record any reason, as to why these documents were not produced or brought on the record.
(ii) If the tenders were invited and work was granted, then there must have been record for it with the department. The failure of the plaintiff to file even an application to requisition that record speaks volume against the truthful version of the plaintiff's case. In fact, the petitioner was conscious of this fact that there was no such record, otherwise he would have strived for it. He must have filed such application if it was prepared or in existence. If the record was being withheld, by the department, the plaintiff/respondent could have moved for grant of permission to adduce secondary evidence. Why this procedure was not adopted. No reasons and explanation have been given.
(iii) The officials, who had invited the tenders, approved it, executed the agreements and had issued work orders were not summoned by the plaintiff into his evidence. The withholding of best evidence is another instance going against the plaintiff's case, raising adverse presumption against the veraciousness of his version, who in these circumstances has to be held to come with unclean hands into the Court. This proves that no works, as noted by plaintiff at Serial Nos.2 to 6 were ever assigned to him.
(iv) The case of the plaintiff is revolving solely and mainly on the measurement book prepared by P.W.1, Iftikhar Ahmed. After analyzing the statement of the plaintiff, we have found that Iftikhar Ahmed, P.W.1 is not a reliable witness because when he had appeared on 8-6-2000 in Court as witness for the plaintiff, he was in private service as stated by him. But to our astonishment, he was still holding the measurement book with him, although he had remained posted as Sub-Engineer three to four years back i.e., from January, 1996 to January, 1997 in that area. It is an interesting portion of the deposition of P.W.1 when we find him changing his stances from one to other, when he states that he had brought the measurement book from SDC in the Court, although he was not an employee of the Canal Department at that time, on 8-6-2000, and was in private service, at that stage, while appearing as witness in the Court. We have also, noted that in fact, this witness is the main supporter of plaintiff, who appears in league with the plaintiff, with whose collusion, the suit was brought in Court and the claim of a huge amount against the Province of Punjab was being made by the plaintiff. We have also noted with concern that the measurement book, which was admittedly prepared by this witness, P.W.1 Iftikhar Ahmed could not be brought into Court by him, if it was a Government record of the department. In the cross- examination, when such question was asked as to how this measurement book was brought by him, he had replied to it by stating that this record of measurement book was brought by him from the SDC, but on the same moment, realizing this mistake of bringing Government record with him, he turned turtle and twisted his statement by deposing that he had not handed over the charge up till that date, and that the measurement book was still lying in his charge. This reply has further aggravated the situation of the plaintiff's case from bad to worst, because how the record of 1996-1997, could remain with the witness in the year 2000, particularly, when he had left the Government service and as admitted by himself, was employed in a private service. This fact proves that the measurement book was not a Government record and had got no authenticity and it was that record which was prepared by the witness himself and was easily available with him. We cannot presume authenticity to such a record, which was never signed and verified by the competent authority i.e. The XEN. This version is again supported by minute perusal of the measurement book (Exh.P-1). We have noted that Exh.P-1 does not contain any signature of XEN although seal is affixed at some places. Therefore, this document has gained a value of unauthentic document, prepared by P.W.1 himself, to support the case of the plaintiff, which was never verified or authenticated by XEN, who was the competent authority to approve the noted entries therein of the measurement book, as admitted by P.W.1 himself in his deposition. In the last line of his examinationin-chief, he had admitted that the measurement book was not containing the signatures of XEN. He was not able to give the reason as to why the signatures of XEN were not affixed or obtained for those works noted therein.
(v) The learned counsel for the respondent has tried to prove the authenticity of this measurement book by stating that Shafique Ahmed, P.W.3 had brought the original measurement book, which was in his charge and that Exh.P-1 was the correct photocopy of that measurement book, but we have noted that Shafique Ahmed (P.W.3) had not verified this fact that the original measurement book was containing the signatures of XEN. So, it becomes clear that the competent authority, the XEN has never verified the alleged allocation of work or its completion by the plaintiff, by signing the measurement book. So, this measurement book, which has been prepared by P.W.1 and was easily accessible and the production of which was through a private witness like P.W.1, not a difficult task or job for anyone, was not an authentic document to be believed and acted upon. How the measurement book which was being retained with P.W.1 at the time of making statement in Court, come to the custody of P.W.3, therefore, creates an impression of its being false and fabricated document. We cannot accept the entries of such a document as containing a gospel truth so as to grant the plaintiff a decree of an amount of more than fifty two lacs. It appears that the measurement book, which was brought by P.W.1 in the Court, after the statement was recorded in Court, was delivered by him to P.W.3, to be kept in his record so as to bring it in Court when he was to appear as a witness for the plaintiff.
(vi) Question arises as to whether this measurement book (Exh.P-1) can be considered and acted upon as document of undoubted authenticity. We are not in agreement with the plaintiff's learned counsel's submission that this measurement book be considered as an authentic document. A document, which has not been brought on record through proper custody, at the time of recording of the statement of P.W.1, whose statement we have already noted as a statement of partisan character, who appears to be in league with plaintiff and interested to support the claim of the plaintiff, cannot be accepted as a true document of undoubted authenticity. This document, if it was a public document and part of Government record, it could not have been brought by P.W.1 in such a manner in Court. The production of that measurement book by P.W.1 and thereafter brought by P.W.3, gives a clear impression that this document was not an original document prepared at the relevant time but was a brain child effort of P.W.1.
(vii) There is no explanation as to why those persons who had allegedly verified were not summoned into evidence by the plaintiff. Syed Sajid Hussain Shah plaintiff, while appearing as P.W.4 had stated that the entries of measurement book were duly verified by Mehmood Akhtar, S.D.C.O., Ahmed Raza Shah, S.D.O. And Mian Abdul Ghani, XEN, who used to sign upon that measurement book (although we have not found any signatures of those persons upon the measurement book) yet if it was so, then those were most important witnesses to be summoned and produced into evidence. From the above noted discussion and appraisal of evidence, we are not satisfied that the plaintiff was ever granted the works at Serial Nos.2 to 6.
(viii) It is important to point out that works of Government cannot be considered to have been granted verbally. Upon mere oral assertion of the plaintiff or on the basis of measurement book prepared by P.W.1, which document Exh.P-1 is of not credible worth, we cannot approve the awarding of decree of such a huge amount to the plaintiff. Upon the sole statement of P.W.1 whose statement is not also entitled to any credence, we cannot grant a decree especially and particularly, when no work order was issued or approved in favour of the plaintiff."
6. So, the judgment and decree passed by the learned Court below to the extent of works at Serial Nos.2 to 6 cannot be up held, and the decree to this extent is set aside. As the appellants have admitted the grant of Work No.1 to the plaintiff and its completion, therefore, the decree granted by the learned Court below to that extent for the amount along with mark-up as held by the learned trial Court is maintained. The appeal is, therefore, partially accepted and the decree is modified inasmuch as the suit is decreed only in the sum of Rs.92,594 with mark-up as directed by learned trial Court, and is dismissed as to the remaining claim of respondent. No order as to costs.