HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against judgment dated 3- 8-2006 in civil revision No,56 of 2003 passed by learned Single Judge of the High Court of Sindh Bench at Sukkur whereby the said revision was dismissed maintaining the judgment and decree of the First Appellate Court.
2. Brief facts of the case are that the petitioner filed suit for recovery of damages amounting to Rs,98,70,367 together with markup and cost before the learned Senior Civil Judge, Sukkur which suit was decreed in the sum of Rs,67,77,317 vide judgment and decree dated 30-8-1997. The respondent filed Appeal No,29 of 1997 (new No,52 of 2002) which appeal was allowed vide judgment and decree dated 15-9-2003 thereby judgment and decree dated 30-8-1997 passed by Senior Civil Judge were set aside and suit of the petitioner was dismissed. Petitioner preferred Civil Revision No,56 of 2003 before the High Court of Sindh Bench at Sukkur which was heard by learned Single Judge of the High Court and dismissed vide impugned judgment, hence this petition for leave to appeal.
3. We have heard learned counsel for the petitioner who submitted that the Senior Civil Judge had correctly appreciated the evidence on record and had construed the law on damages properly in accordance with law, which did not warrant interference by learned Additional District Judge and by the learned Single Judge of the High Court and that the First Appellate Court and the revisional Court have committed serious error of law by setting aside well-reasoned judgment of the Senior Civil Judge.
4. I do not find substance and merit in the contentions of learned counsel for the petitioner.
5. The petitioners/plaintiffs, a private limited company, were assigned the construction work of quarters for Group-VII at Panoakil Cantt. And such contract was given to them as per written agreement mentioning terms and conditions in respect of the period during which the contract was to be completed and amount of contract to be paid to the petitioners/plaintiffs. Petitioners were paid running bills from time to time in view of the work done by the petitioners. Ultimately final bill for the work done was submitted which was paid by the respondents to the petitioners and such "No further Demand Certificate" was also given by the petitioners before the final payment was made by them. However, after the receipt of final payment on their "No further Demand Certificate" to the respondents, the petitioners/plaintiffs filed the civil suit in the Court of law. The petitioners/company claimed following loss as per his statement mentioned in the petition in para.8 as under:--
(a) Cost incurred in undertaking survey of the new location of the proposed quarters which was not included in the original scope of worksRupees 42,600
(b) Extra cost incurred on account of change of location of the proposed quarters7,74,279
(c) Markup of denied payments: In the various running bills 73,202 Payments denied on account of no-payment dues due to delay in the approval of Deviation Orders Nos.6 to 11.7,38,039
(iii) Denial of Rs,2,019,826 from running bills Nos.13 to 18 897,409
(iv) Loss incurred on account of arbitrary reduction of rates and quantities in Deviation Orders Nos.4, 7, to 11.
(a) Amount denied 7,50,533
(b) Markup on (a) 3,05,576
(v) Amounts denied to the petitioner company through non-issuance of Deviation Orders Nos.12, 13, and 14.
(i) Amount involved 496,009
(ii) Markup on (i) be 173,445
(vi) Amounts denied on account of untenable/arbitrary recoveries from the final bill.
(i) Amount involved 75,000
(ii) Markup on (i) be 13,500 (vii)Loss incurred on account of idling of labour due to non-payment of the running bill in January, 1983 at the notified rate of Rs,1,00,000 per day11,00,000 (viii)Loss suffered on account of extended overheads/ supervisory costs/preliminaries for the period of delay of 18 months.4,430,775 Total 98,70,367
6. I have gone through the judgments of the Appellate Court and of the learned Single Judge of the High Court minutely and carefully. I find that each item of claim of petitioners has been considered and appreciated in view of oral and documentary evidence on record which findings were of factual controversy between the parties. The findings of the trial Court have been reversed by the First Appellate Court which findings of fact have been affirmed by the learned Single Judge of the High Court in accordance with law who found no misreading and non-reading of evidence. The petitioners have failed to prove the claims in respect of damages as no evidence as required by law could be brought by them on record. The learned Single Judge at page 14 of the impugned judgment has observed:-- "No suggestion was put to the respondentswitness that any of the items of work of DOs Nos.4, 7 to 11 were reduced or the rates of any of the items of work of these DOs were reduced.
Respondentswitness has categorically stated that the 11 DOs have been paid accordingly which means that they have been paid according to their text and tenure coupled with the measurement obtained from the measurement book. By this evidence, the respondents have discharged their burden and it was upon the applicant to have confronted the respondent witness to the item of its claim for the take of admission or produced some independent corroborative evidence to establish its claim which is not done. I may also note that the applicant has itself produced respondents letter dated 19-1-1991 D-114 in which applicant's claim on these DOs is denied. There is also no suggestion to the respondent witness that the two items of work referred to in the respondent's letter dated 19-1-1991 D-114 were not decided. The overall conclusion of the above discussion is that the applicant has not been able to prove from evidence its claim on account of reduction of rates and quantities in DOs Nos.4, 7 to 11."
At page 18 of the judgment it is observed:-- "P.W.1 in his evidence has stated that applicant has done additional work on verbal order but has produced not a single letter of confirmation. P.W.3 in his evidence has stated that applicant was issued 15 DOs out of which 11 were paid. He has not produced the remaining 3 DOs which are said to have been issued and not paid. The admitted fact is that the respondents have issued 11 DOs which have been paid while the 3 DOs Nos.12, 13 and 14 were prepared by the applicant itself while the contracted work was completed and final bill paid except DO No,12 which was submitted near about the time of payment of final bill. In the face of condition of contract as quoted above which being not complied, to me, there was no justification of allowing applicant's claim for DOs Nos.12, 13 and 14.
The third item of claim allowed by the trial Court is in respect of loss incurred on account of idling of labour due to nonpayment of running bill in January, 1988... Applicant witnesses in their oral evidence have said nothing specifically with regard to this claim. P.W.1 in his evidence has stated that:- "Due to delay in payment of final bill we paid the salary etc. To the staff." .... The applicant in its evidence has not disputed the explanation of delay in making of payment of running bills given by the respondents in their written statement. .... Apart from this all the 18 running bills produced in file No,B Exhibit 19 have been paid to the applicant. The above chart demonstrates the time which was taken by the respondents for making the payment of the running bills to the applicant and in the case of running bill for February, 1988, 25 days were taken yet no grievance is made by the applicant to the time taken in making of this payment. The inference that can be drawn is that the time which has been taken by the respondent in making payment of the running bills to the applicant as noted in the above charge was a reasonable time under the General Condition of the contract and there has been no amount of excessive and unconscionable delay.
Yet the grievance on account of this claim raised by the applicant is of only eleven days and in view of the above chart, in my respectful view, such a claim could hardly be justified."
At page 27 of the impugned judgment:- "Be that as it may there is no material evidence on the record to show that any delay was caused in completion of the contract which can be justifiably attributed to the respondents or that there is any independent evidence to show that the applicant has incurred any loss or damage on account of delay in the completion of work. The record shows that the delay in completion of work has mostly been for the reason as stated in the applicant's own letter for which the respondents cannot be held responsible. Merely granting of extension and by non-imposition of penalty will not in itself lead to an inference that delay was on account of the respondents and that it is liable to compensate the applicant."
It may also be pointed out that the petitioners gave Certificate of No Demand to the respondents in respect of final payment made to them stating therein that they have no further claim under the contract beyond the net amount of the said final bill. The said statement of No Demand towards no further claim by the petitioners will operate as estoppels against them. Reference may be made to Sualeh Sons (Pvt.) Ltd. v. Karachi Development Authority 1997 CLC 893, wherein learned Single Judge of Sindh High Court as he then was (Rana Bhagwandas, J.) observed:-- "Defendant sanctioned payment of Rs,5 lac on account of escalation in prices in full and final satisfaction of claims made by plaintiff; Having accepted this payment without any protest plaintiff is legally estopped from questioning same after a lapse of nearly three years by stating that acknowledgment was executed by him under duress."
In the instant case the petitioners have not led any evidence in respect of coercion or undue influence within the meaning of sections 15 and 16 of the Contract Act to prove that the said certificate of No Demand was given by them under coercion and under undue influence having been exercised by the respondents. It may also be observed that no plea with regard to coercion or undue influence appeared to have been taken in the plaint (the plaint is not filed with the paper book). Reference may also be made to decision of this Court in Muhammad Hussain v. Sheikh Muhammad Tufail and others 1981 SCM R 877 wherein this Court held that when petitioner is found to have been blowing hot and cold in same breath and making different contradictory positions as and when it so suited him the said conduct of the petitioner would not entitle him to any relief in the constitutional jurisdiction of the High Court and therefore, not entitled to grant of leave to appeal before this Court. In the instant case entire record would show that the case of the petitioners is based on factual controversy between the parties in respect of claim of damages on which concurrent findings have been arrived at by the First Appellate Court and affirmed by the High Court. The said concurrent finding of fact arrived at when there being no misreading or non- reading of evidence is pointed out, the same as held by this Court time and again cannot be interfered with in the constitutional jurisdiction by this Court. Reference may be made to Asmatullah Khan and others v. Jhangi Khan and others 1995 SCM R 207, Waris Khan and 2 others v.
Mst. Zainab Nisa and others 1997 SCM R 526, Karachi Tannery (Pvt.) Ltd. v. Muhammad Yousaf through Legal Heirs2002 SCM R 680, Sardar Muhammad and another v. Akram and others 2002 SCM R. 807, Messrs Huffaz Seamless Pipes Industries Ltd. v. Messrs Security Leasing Corporation Ltd.
2002 SCM R 1419 and Yaqub Masih Jacob v. Mrs. Louisa De Souza 1992 SCM R 1799.
7. In view of fact that there are concurrent findings of fact of the Appellate Court and affirmed by the High Court and no misreading and non-reading in the evidence has been pointed out and further no substantial question of law being involved in this petition within the meaning of Article 185(3) of the Constitution of Islamic Republic of Pakistan, therefore, no interference is called for in the constitutional jurisdiction of this Court, consequently leave to appeal is declined and the petition is dismissed.
(Sd.) Hamid Ali Mirza, J I concur but have added my separate note.
(Sd.) Rana Bhagwandas, J
8. RANA BHAGWANDAS, J.--- At the hearing of this petition at Karachi Registry of this Court, it was vehemently contended by Mr. Bilal A. Khawaja, learned Advocate Supreme Court for the petitioner- Company that the petitioner was constrained to sign various documents, including "no demand certificate" and the final bill in respect of the contract executed by him under coercion and undue influence. Precisely quoting the learned counsel, it may be observed that he had used the maxim "economic coercion" on the part of the employer, who had allegedly withheld the payment of various running bills and by delaying such payments made the Directors of the Company to starve.
Since the entire pleadings of the parties and the evidence were not available before the Court, truly speaking, I had formed a tentative opinion to grant leave to examine the aforesaid question of law.
Nevertheless, my learned brother Hamid Ali Mirza, J was inclined to dismiss the petition, therefore, the announcement of judgment was reserved.
9. Now since entire record is made available by the High Court on my requisition, I have verified from the contents of the memo. Of plaint as well as evidence adduced at the trial of the suit, which clearly contradicts the submission made before the Court. In the first instance, the plaintiff/petitioner had not raised the issue of undue influence and economic coercion played by Garrison Engineer, Pano Akil Cantonment or Chief Engineer Army, Rawalpindi and secondly in the evidence it was all along conceded that all payments on account of running bills for execution of the contract and work were received without any protest or demur. In view of candid admission by the Directors of the plaintiff-Company that they had submitted various running bills, which were passed after certain deductions and the payment was received without any protest and reservation, it does not lie in the mouth of the plaintiff to agitate, for the first time, at this stage that they kept silent on account of undue influence of the respondents within the meaning of the expression as employed in section 16 of the Contract Act, 1872. No doubt in the facts and circumstances of the suit, respondents were in a dominating position to dictate their terms and influence the plaintiff to accept the payments, whatsoever, released, there is hardly any pleading, much less any evidence, on the issue supporting the view of the learned counsel. I have, therefore, changed my tentative opinion of rendering a split judgment and would agree with the conclusion arrived at.
10. It is well-settled proposition of law that in the event of a conflict between the judgments of trial Court and the First Appellate Court, preference should be given to the views of the Appellate Court, who had the opportunity of examining and analysing the evidence of the parties. The rule is, however, neither absolute nor inflexible. In case the judgment of the Appellate Court is not well- founded and the reasons assigned for taking a different view from that of the trial Court appear to be not warranted by record, it cannot be preferred. In the present case, oral as well as documentary evidence has been analyzed carefully, correctly and consciously by the Appellate Court, which has been rightly affirmed and not interfered with by the High Court, therefore, the judgments of both the above forums are not open to any exception.
11. Needless to reiterate, in view of concurrent findings of fact by two Courts below, including the High Court, no ground is made out for interference by this Court in the exercise of extraordinary constitutional jurisdiction. Furthermore, no question of law of public importance is spelt out, therefore, the petition must fail and is hereby dismissed with no orders as to costs.