' MAULVI ANWARUL HAQ, J.---On 29-6-1994 the respondent filed a suit for recovery of Rs,4,29,044.53 against the respondent. According to the plaint the respondent was awarded contract for the construction of. Basic Health Unit in Chak No,39 South District Sargodha. The work order was issued and he commenced executing the said contract. Running bills were paid to him. However, ninth bill in the sum of Rs,1,11,751.53 was not paid. According to the plaint the bills were not paid by the department on the ground that the funds are not available. He accordingly prayed for a decree in the suit amount as worked out in- para. 7 of the plaint. On 22-2-1995 an application was filed by the appellant under section 34 of the Arbitration Act, 1940. The application was dismissed on 17-4- 1995. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit in the sum of Rs,1,11,751.53 and also awarded Rs,1,00,000 by way of damages. First appeal filed by the appellant was dismissed by ADJ Sargodha on 17-1-2005.
2. The learned A.A.-G. Contends that the impugned judgments and decrees are without jurisdiction inasmuch as the learned trial Court could not have proceeded with the suit in the presence of the Arbitration Clause. Then argues that the amounts of the bills decreed are result of misreading of the evidence. Finally vehemently argues that there is no basis available on record for awarding damages and that there is certainly no evidence in support thereto.
3. Learned counsel for the respondent supports the impugned judgments and decrees.
4. The certified copies of the entire record have been appended with this RSA and both the learned counsel made their submissions with reference thereto.
5. I have examined the same with their assistance. So far as the first contention of the is concerned, I find that the appellants put in appearance on 15-9-1994 and sought adjournment for filing written statement, which was granted. A Later, they were proceeded against ex parte which proceedings were set aside and again adjournment was sought for filing written statement on two occasions. It was ultimately on 22-9-1995 that the said application was filed. To my mind, the learned trial Court very correctly dismissed the said application on the ground that the appellants had taken steps in proceedings within the meaning of said section 34 ibid before filing the application. Apart from this an order passed under section 34 of the Arbitration Act, 1940 is appealable under section 39 of the Arbitration Act, 1940. Learned A.A.-G. Admits that no appeal was filed against the said order. This being so, no ground stands made out for interference with the said order passed by the learned trial Court on 17-4-1995 dismissing the said application. So far as the decree for the amount of ninth running bill is concerned, learned A.A.-G. Has been unable to point out any misreading and non-reading of the evidence by the learned trial Court while recording the said findings.
6. However; the said last contention of the A.A.-G. Does carry force. There is no evidence on record to support the award of damages by the learned trial Court. Learned counsel for the respondent has tried to argue that the due payments were wrongly withheld and damages have been correctly awarded. I find that the matter has been sufficiently explained in the course of evidence of the respondent as to how the necessity arose to withhold the said payment as the amount liable to be withheld under the terms of contract by way of security had in fact been released to the respondent before the completion of the work.
7. I, therefore, do find that the damages could not have been lawfully awarded to the respondent.
8. At this stage the learned counsel for the respondent informs that when these appeals were initially filed in this Court a direction had been issued for investment of the decretal amount in some profit bearing scheme and this was done. He prays that the amount presently decreed be paid along with profits accrued on the said deposits. Learned A.A.-G. Is not aware as the appeals in fact were made over to the learned District Judge upon enhancement of the pecuniary jurisdiction and were decided accordingly. Be that as it may, if the amount had been so invested, the decretal amount as upheld in this judgment shall be paid to the respondent/plaintiff with the proportionate profits accruing on the same while balance amount shall be paid to the appellant Government with the proportionate profits accruing on the same.
9. The. R.S.A. Is accordingly partly allowed and the impugned judgment and decree are modified.
The suit of respondent/plaintiff is decreed only to the extent of Rs,1,11,751.53. No order as to costs in this RSA.