' SYED ZAHID HUSSAIN, J.---This. Is Regular First Appeal against judgment and decree dated 10-4- 2003 whereby the suit filed by the respondent was decreed to the extent of Rs,31,69,311. During the pendency of this appeal, an application under Order XLI, Rule 27 of Code of Civil Procedure, 1908 for production of additional evidence has been filed which is being contested by the respondent/plaintiff by filing reply. We have, thus, heard the appeal as also the said application.
2. The case of the respondent/plaintiff before the trial Court was that he had been awarded work for "Correcting River approach to Trimmu Barrage /Head Spur at RD. 5500-RMB-Jhang". The contract value as per the respondent/plaintiff was Rs,3,05,00,000. The respondent claims to have completed the work and payments against running bills used to be made. Against one of the bills, payment for Rs,29,58,461 was sanctioned but for the reasons pleaded by the respondent, the then Executive Officer addressed letter to the District Accounts Officer; Jhang for cancellation of the cheque which accordingly was cancelled by the said office on 26-12-1995. The respondent/plaintiff then brought the suit. In view of the pleadings of the parties, the learned trial Court framed the following issues on 28-4-1998:--- ISSUES:
(1) Whether the plaintiff is , entitled to get decree as prayed for? OPP
(2) Whether order of defendant No,4, dated 21-12-1995 and 26-12-1995 regarding the cancellation of cheque dated 11-12-1995 is illegal, mala fide without authority, without notice, against facts and ineffective upon he rights of the plaintiff and liable to be set aside? OPP
(3) Whether the proceedings of defendants Nos.5 and 6 regarding the cancellation of cheque are based on mala fide, without authority, illegal, against facts and ineffective upon the rights of the plaintiff and liable to be set aside? OPP
(4) Whether the plaintiff has no cause of action and locus standi to file this suit? OPD
(5) Relief."
4. It may be observed at the outset that from the proceedings recorded and the order sheet of the trial Court, it is manifestly evident, as to how casually and carelessly the defendants (now appellants) had conducted this case. The trial Judge has noted this aspect in detail in his judgment. At stages ex parte proceedings were taken and evidence was recorded, they had in this way been playing hide and seek with the Court. None even appeared as a witness to defend the suit. Mere filing of written statement would not have sufficed, as the averments made therein remained uncorroborated and no cogent evidence'was produced. [1] opposes the application for additional evidence and has endevoured to support the judgment and decree of the Trial Court.
5. Since the initial onus of proving vital issues Nos.2 and 3 was upon the respondent/plaintiff, he produced the evidence and also summoned official witnesses, Muhammad Sharif Khan, Chief Engineer Irrigation, Sargodha Divisions Sargodha was produced as P.W.l who was in the year. 1994- 95 Superintending Engineer, Haveli Canal Circle Multan. He deposed that the contract for correcting River approach to Trimmu Barrage-J was allotted to two contractors namely Painda Khan and Ejaz and Company. The cost of the work allotted to Painda Khan and Company according to him was Rs,3,65,38,737 (To be read as Rs,3,05,38,737). It was deposed by him that a cheque for sum of Rs,29,58,461 was drawn in favour of the respondent/plaintiff, which was later on withdrawn by the drawing officer XEN from the Treasury Office. According to him the dispute had been settled. Malik Muhammad Waris P.W.2, Divisional Accounts Officer, Irrigation Head Trimmu, Jhang had stated that the earth work contract had been awarded to the respondent/plaintiff for Rs,3,05,68,735 and that cheque for Rs,29,58,461 had been sanctioned which was cancelled later on.
Muhammad Aslam, Assistant Accountant Jhang appeared as P.W.3 who produced the record regarding cancellation of the said cheque. Lai Khan (plaintiff) appeared himself as P.W.4 and endeavored to support the case set up by him in the plaint. He admitted the receipt of Rs,9,82,435 pending the litigation under protest. On 17-9-2001, he closed his affirmative evidence. Though no witness was produced by the appellants/defendants yet the Court recorded the statement of Abdul Rasheed Alam, XEN as C.W.l who affirmed the payment of Rs, 9,82/35 pending the suit, which was received by the respondent/plaintiff under protest. In view of the evidence on the record the learned Trial Court has rightly placed reliance upon the testimony of Court witnesses in coming to the conclusion that contract value of the work was Rs,3,05,00,000 (round figure) and not Rs,2,73,00,000 as pleaded by the appellants. The said work has been found to have been completed by the respondents/ plaintiff. This aspect of matter has been dealt with by the Trial Court as follows:- "Defendant No, 3 has fully corroborated as P.W.l about the value of work at more than Rs,3,05,00,000 completed by the plaintiff. C.W.l Abdul Rasheed, Alam when appeared before the Court along with the record, he also supported the contention of the plaintiff on the basis of record available with the department. C.W.l deposed that including amount Of Rs, 9,82,437 received by the plaintiff in the month of December, 1997 total amount paid was worked out at Rs,2,74,00,388. The plaintiff himself also admits the receipt of said amount from the defendants. The defendants have not been able to produce the Measurement Book or original bills pertaining to the work completed by the plaintiff against his work order. The statement of C.W.l Mr. Abdul Rasheed Alam, was recorded after lapse of period of seven years from the institution of suit but still at present C.W.l deposed that Measurement Book was not available with the defendants.
' It was thus rightly concluded by the trial Court that Cheque for Rs,29,58,461 was cancelled without any lawful justification. It may, however, be observed that trial Court has found the respondent/plaintiff entitled to a decree for Rs,31,69,311 by taking into consideration the value of the work, payments made, and the balance payment. It is, however, not to be overlooked that the suit for declaration had been filed by the respondent/plaintiff essentially on the basis of illegal cancellation of Cheque for Rs,29,58,461 Paragraphs Nos.8, 9, 12 and 13 of the plaint clearly demonstrate this aspect. He cannot set up any plea beyond what is averred and made basis for cause of action. His claim should remain confirmed to the amount, of cheque, the cancellation of which has been found unjustified. He could not be granted relief over and above the same. It has also been admitted by Lai Khan P.W.4 (respondent/plaintiff ) and also stated by C.W.l that pending the suit a sum of Rs,9,82,435 was paid to the respondent/ plaintiff (though under protest). The said amount is liable to be deducted from the Cheque amount Of Rs,29,58,461. The balance thus would be Rs, 19,76,026.
5. Adverting to CM. No,l-C/2006, it may be observed that its object is to produce additional evidence. Not only that a belated attempt is sought to be made after 3 years of filing of the appeal, we may observe that production of additional evidence at appellate stage is not to be encouraged as a matter of routine. Sound basis for this purpose is to be made out. The conduct of the appellants throughout the trial of the suit before the trial Court clearly demonstrate their slackness.
They cannot be heard to complain that they had no adequate opportunity of defending the suit or producing the evidence. The provisions of Rule 27 of Order XLL of Code of Civil Procedure, 1908 have certain preconditions, which are lacking in this case. Be that, as it may, for our satisfaction we have perused the prime document which is sought to be pressed into service by the learned Assistant Advocate-General in support of his plea that the contract value was not the same as claimed by the respondent/plaintiff. It is a letter dated 2-12-1997 by the Provincial Coordinator/ Chief Engineer D.R.G. And Flood Protection Section Project I & P Department, Canal Bank Ferozepur, Addressed to the Chief Engineer, Multan Irrigation Zone, Multan accompanied by a document giving the description of the contract, the name of the contractor, contract amount and payments made. The perusal of the same indicates that the contract value was Rs,31.29 million. Even the said document does not support the plea of the learned Assistant Advocate-General rather it indeed corroborates the contract value as discussed above i.e, more than three crores of rupees. The application being bereft of merit * is dismissed accordingly.
' After considering the evidence on the record and having reached the conclusion recorded in paragraph No,5, we modify the decree to the extent that the respondent/plaintiff is entitled to the decree for Rs, 1976,026 (Rs, 29,58,461 - Rs,9,82,4435). The appeal is dismissed with this modification.
No order as to costs.