' SYED ZAHID HUSSAIN, J.-A suit for recovery of Rs. 15,15,843 was instituted by the respondent/plaintiff which was contested by the appellant by filing written statement. The pleadings of the C parties gave rise to such issues, as were framed by the learned trial Court whereafter the evidence ldd by the parties was recorded and the suit was decreed by the learned trial Court on 14-4-2003 to the extent of Rs.9,77,963. Appeal filed thereagainst by the appellant was dismissed by the first Appellate Court on 29-1. 1-2004. This is second appeal in this context.
2. The learned counsel, have been heard and record perused.
3. The grievance of the appellant is that Muhammad Younus Butt, who appeared as D.W. 1, in the suit had acted in collusion with the plaintiff/respondent and the judgment and decree was result of fraud and misrepresentation. It is contended by the learned counsel that the said witness posed himself as Assistant Divisional; Engineer (Building) LTR North Lahore, which in fact was an incorrect designation given by him. It is further contended that no contract/work order had been issued to the respondent therefore, there could not be any question of payment or non-payment to him. It is further contended that though an application was made before the first Appellate Court for permission to produce additional evidence yet the said application was dismissed through the impugned judgment which according to him should have been decided separately.
4. Though the Courts below have recorded concurrent findings against the appellant yet the same have been examined on the touchstone of the pleadings and the evidence on the record. The case setup in the plaint by the respondent/plaintiff particularly in paragraph Nos.2, 3 and 4 was:- "2. That the Plaintiff Firm was awarded the works in the years 1994-95; 1995-96 and 1996-97 by the Divisional Engineer, P-1, PTCL Development Customer Service Center, Lahore as per details given below :~
(i) Annual Repair and maintenance work of Telecom, Building Baghbanpura (interior) through work order dated 29-7-1994.
(ii) Provision of dispensary (stock Medicine, room counter in PTC Dispensary P&T Colony, Multan Road, Lahore through work order dated 16-6-1997.
(iii) Provision/repair of road cuts of BLT in different blocks of P&T Colony, Multan Road, through work order dated 20-6-1996.
(iv) Provision/repair of PTC damaged Road c.Uts in G and H Blocks in P&T Colony, Multan Road, Lahore dated 20-6-1996.
(v) Provision/repair of damaged roads cuts in Asphalt in F Block at P&T Colony, Multan Road, Lahore through work order dated 20-6-1996.
(vi) Repair of road cuts in asphalt at E Block, P&T Colony, Multan Road, Lahore through work order dated 20-6-1996.
(vii) Repair of road cuts in asphalt iii D Block at P&T Colony, Multan Road, Lahore through work order dated 22-6-1997.
3. That the works as per detail given above were completed to the entire satisfaction of the Engineer in Charge which fact was introduced in the bills duly verified but it was unfortunate on the part of the defendant hot to liquidate the liability despite the fact that the defendant vide letter No.AGM(F) LTR(N)/E-1/ Misc./ bldg./2000/ 177, dated 21-10-1999 addressed to the Deputy Chief Engineer, Maintenance, Islamabad confirmed the liability of Rs.9,77,963 and demanded funds to liquidate the liability . And till to date no efforts have been made in this aspect, resultantly the plaintiff served a legal notice dated 18-1-2000, followed by reminder for the release of his legitimate dues but of no avail, hence this suit.
4. That the plaintiff Firm is due an amount of Rs.9,77,963 which is admitted liability as confirmed by the defendant and due since June, 1997 as such the same is claimed through this suit along with compensation at the rate of 20% per annum with effect from June, 1997 till the filing of the suit and calculated for Rs.5,37,880, hence the suit amount comes to Rs. 15,15,843 which needs to be allowed/released while passing the decree in favour of the plaintiff against the defendant".
' Such a claim was controverted through the written statement and following .Issues were framed:- - ' ISSUES:
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit is barred by limitation? OPD.
(3) Whether the suit is bad for nonjoinder and mis-joinder of necessary parties ? OPD.
(4) Whether the plaintiff has no cause 'of action and locus standi to file this suit? OPD.
(5) Whether the plaintiff has completed the work as per terms and conditions of the contract and the amount of Rs.9,77,963 was outstanding against the defendant? OPP. -
(6) If the above issue is proved in affirmative, then whether the plaintiff is entitled to recover Rs.5,37,880 as compensation at the rate of 20% per annum and in this way he is entitled to recover total amount Rs. 15,15,883 as prayed for in the plaint? OPP.
(7) Relief.
Mian Ilam Din respondent/plaintiff appeared as P.W.l, and supported his claim as set out in the plaint. Though he was cross-examined yet his testimony remained consistent. From the appellant/defendant's side Muhammad Younus Butt appeared as D.W.l, who gave his designation as Assistant Divisional Engineer (Building) LTR, PTCL, Lahore. In his cross- examination he admitted the issuance of documents Exh.P.2 to Exh.P.7. Exh.P.l, was a notice issued by the respondent/plaintiff for the payment of his outstanding dues and it is dated 18-1-2000 whereas reply to the same was given by the General Manager Lahore Telecom: Region (North) Lahore on 6-3-2000 (Exh.P.7) which reads as follows:- "The payment of M/s. Mian Ilam Din and Sons amounting to Rs.977,963 is pending for want of additional funds and due to some Administrative and Technical reasons viz. (Observing of formalities and physical verification etc.) under repair and maintenance of buildings. The case ' for allotment of funds to clear the pending liabilities of the said Firm has already been taken up with the. Headquarter PTCL Islamabad vide No. AGM(F)/ LTR(N)/ Bt./Misc. Bldg/2000/177 and No.DE(B)/BB- 20/1999-2000, dated 21-10-1999 and 29-2-2000 respectively. The payment of the said firm will be cleared as and when the funds are received from the PTCL Headquarter Islamabad.
' GENERAL MANAGER' LAHORE TELECOM: REGION(NORTH) LAHORE."
' It was admission and acknowledgement of the outstanding liability. - That is why D.W.l could not firmly refute the claim of the respondent/plaintiff and had to admit in cross-examination that-for the payment of the suit amount the funds were being awaited. Since the liability had been established and could not be denied in presence of such oral and documentary evidence, the Courts below have rightly returned findings in favour of the respondent/plaintiff and granted decree to the extent of Rs. 977,963. The vital issue i.e. Issue No.5 was thus decided in favour of respondent/plaintiff.
' So far as the contention that Muhammad Younus Butt had given his wrong designation before the Court and made misstatement is concerned, it may be observed that when asked as to what action was taken departmentally against him the learned counsel has candidly stated that no departmental action was taken against him. It proves the hollowness of the plea now being raised as to his alleged misstatement.
The contention that the first Appellate Court should have separately decided the application for production of additional evidence is also without any substance, inasmuch there is no hard and fast rule that such application should be decided separately and not with the decision of the main appeal. Similarly no cogent evidence was produced by the appellant in support of Issues Nos. 1 to 4 and thus failed to earn favourable findings. The judgments rendered by the Courts below being consistent with the evidence on record no justification has been made out to interfere with the same.
' In view of the above, the appeal is without merit which is .Dismissed accordingly with costs.