MUHAMMAD ALAM KHAN, J.-This revision petition is directed against the concurrent judgments and decrees dated 19-2-2004 and 15-1-2005 passed by the learned Senior Civil Judge D.I. Khan and learned Additional District Judge D.I. Khan respectively, vide which suit of the plaintiffs/respondents for the recovery of Rs, 1,20,940 was decreed against the defendants/petitioners.
2. Facts of the case giving rise to the filing of the instant civil revision petition are that die plaintiffs Humayun Taj, Ashfaque Taj, Ishtiaque Taj and their mother Safia Begum, legal heirs of Sheikh Taj Muhammad, had instituted suit in the Court of Senior Civil Judge D.I.Khan for the recovery of Rs, 1,20,940 for the work earned out as Topographic Survey of villages Potah, Kotka Habib and Naivellah D, I. Khan. According to the averments made in the plaint, Sheikh Taj Muhammad, this progenitor of the plaintiffs, had established a Company under the name of North Engineering Consultants which used to carry out topographic survey of the Public Health Engineering Department in the N.-W.F.P.
Under the oral orders of the XBN/SDO of the same department in D.I.Khair, the said Company in June 1998 carried out topographic survey for the villages Potah, Kotka Habib and Naivellah D. I.
Khan and submitted its drawing to the concerned authorities. The department prepared estimated cost, PC-I for Rs,29.614 million vide Annual Development Program No, 209/990079/ 1999-2000 and sub cost estimate was approved vide Secretary to Government of N.W.F.P Public Health Engineering Department No, OCT, P.H.E.D/1-33/99, dated 16-12-1998 which included the topographic survey in question amounting to Rs, 1,20,940. Sheikh Taj Muhammad, ancestor of the plaintiffs and Managing Director of North Engineering Consultants submitted claim of Rs, 1,20,940 for the topographic survey carried out of the aforesaid three villages to the petitioners/ defendants but could not succeed which compelled him to complain to the Military Monitoring Cell D.I. Khan where in reply petitioner defendant No, 5 admitted the claim of the Company. Due to the death of progenitor of the plaintiffs on June 15,2001 his legal heirs approached the defendants/petitioners Nos. 4 to 6 for payment of the work done but in vain and hence the suit.
3. The defendants hotly contested the suit by filing written statement which gave rise to the framing of eight issues including the relief. The learned trial Court after recording evidence pro and contra and hearing the parties thereon, decreed the suit in favour of the plaintiffs as prayed for in the plaint and the appeal filed there against by the defendants also met the same fate as mentioned above and hence, this revision petition.
4. I have heard learned Deputy Advocate-General on behalf of the petitioners and perused the written arguments submitted on behalf of respondents Nos. 1 to 4. Record of the case has also been thoroughly examined.
5. A preliminary objection was raised on behalf, of the respondents that the revision filed by the petitioners is time barred, as- the impugned judgment of Additional District Judge was announced on 13-1-2005 and the petitioners were obliged to file the revision petition within ninety days in view of the amended provisions of section 115, C.P.C. Which period expired on 13-4-2005 and the petition having been filed on 10-10-2005 was not within time.
6. The learned Deputy Advocate- General submitted that the time required for obtaining the certified copies if excluded under section 12(2) of the Limitation Act, then the revision petition is within time and in the alternative he insisted on arguing the case on merits and consequently he was heard on merits also.
7. The legal position involved is that initially there was no period of limitation for filing a revision petition which was subsequently added through an amendment in section 115 C.P.C. And the limitation was fixed as ninety days. It is now a settled principle of law that the provisions of section 12(2) of the Limitation Act, with respect to the exclusion of time is not applicable to the revision petitions as held in the cases reported as Taj Muhammad and others v. Pirzada Khalid Mansoor and others (2007 CLC 213 Peshawar) Government of Balochistan through Secretary Revenue, Board of Revenue Balochistan, Quetta and Settlement Office Kalat v. Abdul Rashid Langove 2007 SCMR 510, Government of N.-W.F.P and others v. Ahmad Shah and others 2007 YLR 1781 Peshawar, and Abdul. Waheed Khan v. Mst Ruqia and others PLD 2006 Pesh.
156. Thus, the revision petition is hopelessly time barred, but as the Deputy Advocate-General has insisted in disposal of the revision petition on merits, hence the following are the findings on merits.
8. Mr. Ishtiaq Taj, son of Sheikh Taj Muhammad himself and as attorney on behalf of the remaining legal representatives of his deceased father had appeared in the witness box and affirmed the averments made in the plaint. The plea of the plaintiffs is that in June 1998, the Executive Engineer, Public Health Engineering Department D.I. Khan had orally requested them to carry out the topographic survey for the villages Pota, Kotka Habib and Naiwela subject to payment of requisite charges which was completed and the defendants agreed to pay the requisite charges on availability of funds. The Department had prepared its PC-I with estimated cost and the sub cost estimate was approved by the Secretary to Government of N.-W.F.P Public Health Engineering Department letter No, PHED/ 1-33/99 dated 16-12-1998 which also included the claim of the plaintiffs for the work of topographic survey of the aforesaid villages conducted by their Company.
Muhammad Salim, S.D.O Public Health Engineering Department D.I.Khan was examined as P.W.l who brought on record letters Nos. 47-48 dated 20-1-2008 as Exh. P.W.1/1 letter No, 329/31, dated 18-1- 2001 as B Exh.P.W.1/2, legal notice issued by the progenitor of the plaintiffs to the defendants/petitioners as Exh.P.W.1/3, letter No, 343/49 dated 19-1-2001 as Exh.P.W.1/4 and letter No, 1668-69 dated 13- 3-2001 as Exh.P.W.1/5. He had also produced the topographic survey of the aforesaid three villages as Exh.P.W.1/6 to Ex.P.W.1/8 respectively. The oral offer and acceptance of contract between the parties had admittedly taken place in the year 1998 and in consequence thereof, the plaintiffs had completed the topographic survey of the three villages mentioned above which was accepted and their claim for the same was duly admitted by the defendants/petitioners. On receipt of the topographic survey maps for the villages in question, the defendants have accepted the same and, therefore, the principle of estoppel is attracted in the case in hand, because neither the department nor any of its representatives could be allowed to deny and resist the claim of the plaintiffs in these circumstances. Since the mode of contract and the terms and conditions of the contract agreed be acted upon between the parties were oral, any legal right or liability dependent on the existence of fact asserted by any party shall be proved by that party. In the instant case, the burden of proof with regard to the rules, regulations terms and conditions of the oral contract lay on the shoulders of the defendants which they had miserably failed to discharge and rebut in the evidence.
9. The law is now established on the point that even if there is a contract in writing with the estimated cost and issuance of a Work Order to the Contractor but if during the execution of work he is orally directed to do additional work, he will be entitled to the compensation even if there is nothing in writing as held in Messrs Sagaria Brothers v. Messers Azim Markaz and 2 others (PLD 1994 Kar. 149) and Federation of Pakistan (Pakistan Railways) through the General Manager Railways Headquarters Officer Lahore v. Javaid Nasim, Sole Proprietor, Messrs Javaid Nasim & Company (PLD 1994 Lah. 303).
10. Consequently, the impugned judgments and decrees of the learned two Courts below are based on correct appreciation of evidence brought on record and I do not find any substance in the revision petition in hand to interfere therewith. The same are, therefore, upheld and the revision petition is dismissed with no order as to costs.
11. However, as the plaintiffs/ respondents have been unnecessarily dragged into litigation and they are traversing the Court premises for sufficiently long time and in the meantime there was a severe devaluation in the currency, hence they are held entitled to simple interest at the rate of six per cent from the date of institution of the suit with effect from 8-1-2002 till the payment of decretal amount.