' ANWAR ZAHEER JAMALI, J.---This High Court Appeal is directed against the judgment dated 13-2- 2002 and decree dated 28-2-2002 passed by the learned single Judge of this court in Suit No,352 of 1994, whereby suit for recovery of Rs,40,10,729 instituted by the respondent Firm was decreed to the extent of Rs,1,118,785 with mark-up at the rate of 12% per annum w.e.f. The date of filing of the suit till realization of the decrial amount and costs of the suit.
2. In nutshell, the relevant facts of the case are that the respondent, a Partnership Firm, under two work orders obtained by them under open tender invited by the appellants, had undertaken the construction work of first and second floors of the new annexy building of Sindh High Court. As per case of the respondent, during the process of such task, additional work were also got done from them with certain changes in quality, material and nature of work, but at the time of finalization of bills, as detailed in the plaint, their payment was withheld to the extent of Rs,29,16,026. The matter was vigorously pursued by the respondent before various departments of appellants but all in vain.
Thereafter as a first step, the respondent had brought their grievance before the Provincial Ombudsman for redress, who had initiated enquiry in the matter but due to failure of the appellants and the Enquiry Committee in submission of their report, such attempts also failed, which left the respondent with no other option but to file the instant suit for recovery of Rs,40,24,115.88 along with interest with consequential reliefs of attachment and sealing of premises of appellant No, 2 and also attachment of their salaries. In order to substantiate their claim, plaint in the suit was accompanied with relevant documents marked as Annexures "A" to "N" to the plaint.
3. The defendants in their written statement filed in court on 19th October, 1994 raised certain legal pleas as to the maintainability of the suit instituted by the respondent and also challenged factual, assertions of the respondent, forming basis of its claim subject-matter of the suit. The written statement filed by the appellants was also accompanied with documents. Marked Annexures D/1 to D/14, as referred and discussed in the written statement.
4. On the pleadings of the parties, following consent issues were framed in the suit on 16-6-1996:--- "(1) Whether the suit is barred by law and not maintainable?
(2) Whether the plaintiff submitted his running bills from time to time and received the payments thereof?
(3) Whether the plaintiff did the job in accordance with the contract executed by the plaintiff?
(4) Whether defendant No,2 delayed the furnishing of structural and architectural drawing and whether such delay caused the loss to the plaintiff in the sum of Rs,296,000 as stated in paras 7, 8, 9 and 20?
(5) Whether defendant No,2 illegally deducted Rs,56,751 as per bill submitted by the plaintiff as, mentioned in para. 12 of the plaintiff?
(6) Whether the plaintiff was asked to provide machine made block masonary instead of hand made blocks as originally provided in the work order and as such whether plaintiff was entitled to receive a sum of Rs,1,12,414?
(7) Whether defendant No,2 deducted illegally a sum of Rs,2,19,979 in respect of 11th running bill towards the work done for laying white marble flooring as stated in para. 14 of the plaint?
(8) Whether defendant No,2 paid illegally Rs, 1,89,161 in M/s . Ehtasham & Co. In respect of work already completed in para. 18 of the plaint?
(9) Whether defendant No,2 ordered alteration in structural designs after approval as a result of which caused loss to the plaintiff in the sum of Rs, 3,40,000 as stated in para 16 of the plaint?
(10) Whether defendant No,2 withheld the payment of Rs, 8,05,519 in respect of work completed on first and second floor of the building in dispute and as per final bill submitted to the defendant as per para. 18 of the plaint?
(11) Whether defendant No,2 ordered the plaintiff to demolish the work carried out on IInd floor of the building and instead Construct from court rooms on the said floor and whether plaintiff was paid for such demolition and of the previous work before demolition?
(12) Whether defendant No,2 withheld the payment of Rs,2,50,848 towards the work done in respect of teak wood doors, windows and mosaic tiles?
(13) Whether plaintiff is entitled to receive and recover from the defendants a sum of Rs,40,10,724 towards the completion of the alleged building in dispute?
(14) Whether the findings of the enquiry report given by Mr. Syed Basheer Ahmad Shah, Superintending Engineer, Provincial Buildings Circle, Police and Health Works, Karachi, appointed by consent of the parties, in compliance to the order dated 23-9-1993, of the Provincial Ombudsman, Sindh, is binding on the parties?
(15) Whether defendants complied with the decision of Provincial Mohtasib dated 23-9-1993 and what is its legal effect?
(16) What should be the decree?"
5. For the purpose of recording of evidence in the suit, with the consent of parties' counsel, vide order dated 25-6-1996, Mr. Zia Ahmed Qureshi, Advocate was appointed as Commissioner for this purpose. Before the Commissioner from the side of respondent Akbar Ali Baloch filed his affidavit in evidence accompanied with the bunch of documents relied upon by him on behalf of respondent Firm to establish their claim against the appellants. These documents were exhibited and marked as Annexures P/1 to P/55 and contained copies of work orders; paid and unpaid bills and other correspondences between the parties as well as some record relating to the earlier proceedings before the Provincial Ombudsman.
6. In rebuttal, on behalf of appellants they examined Akbar Ali Arain, Assistant Engineer, who also produced certain documents along with his affidavit in evidence marked as Ex.D/1 to Ex.D/11. These witnesses were subjected to detailed cross-examination before the Commissioner by the respective counsel for opposite parties, whereafter the Commissioner's report was submitted before the court on 12-8-1997 and it was brought on record on 6-10-1997.
7. Learned Single Judge seized of the case, heard arguments of the parties' counsel, also perused synopsis of written arguments submitted before the recorded his issue-wise findings in favour of respondents, as detailed in the impugned judgment.
8. The present appeal was instituted by the appellants on 22-3-2002 and since then several orders have been passed from time to time to expedite its disposal. On 17-1-2006 we had partly heard the arguments of learned counsel for respondent and had adjourned the case to 19-1-2006 with direction to the office to issue intimation notice of such date to the learned counsel for appellants.
As no body was present on behalf of appellants before the court on 19-1-2006, notice was repeated to the appellants for 24-1-2006, which also returned unserved. As last recourse on 24-1-2006 notice of this appeal was ordered to be issued to the appellants directly for 26-1-2006 on which date Mr. Ahmed Pirzada, Additional A.G. Sindh, placed his appearance on their behalf and requested for time. Ultimately arguments of the learned counsel have been concluded on 1-2-2006 which have been advanced in addition to the written synopsis of arguments already submitted on behalf of appellants and submitted on behalf of respondent on such date. It will be worthwhile to mention here that the respondent being fully satisfied (sic) any cross appeal or cross-objection as provided under Order XLI, Rule 22, C.P.C.
9. We have carefully considered the arguments advanced before us by the learned counsel, also gone through the written notes of arguments submitted by them and the whole material available before us.
10. The relevant facts that under two work order No,608 for Rs,67,12,447 dated 6-3-1989 and Work order No,55 for Rs,14,30,812 dated 7-8-1990 respondent Firm had undertaken construction work of the first and second floors of High Court Annexe Building are not denied, so also the terms and conditions mutually agreed between the parties for undertaking such work.. Other relevant facts as regards submission of running bills from time to time by the respondent for payment, produced as Exh.P/40 to P/43 and P/47 and their payments, have also been denied by the appellants. The main grievance of the respondent highlighted in the suit, seems to be emanating from the bill dated 10- 11-1991 (Exh.P/27), whereby they had claimed final payment of Rs,2,61,034.63 in respect of work order No,55 and the .Other bill dated 21-11-1991 in the sum of Rs,8,47,914 as final bill of work order No,608.
11. The point for determination before us in the present appeal is that whether the findings of the learned single Judge recorded in the impugned judgment, both on legal and factual aspects of the case, are based on proper appreciation of evidence adduced by the parties and the law, or not.
Learned counsel for appellants in his arguments has made sweeping remarks that the impugned judgment is result of mis-reading and non-reading of evidence and further many important aspects of the-case have remained unattended by the learned single Judge but he could not pinpoint any such deficiency in the impugned judgment. On the contrary, we have noticed that the learned single Judge has taken pains to examine each and every relevant aspect of the case carefully and made proper assessm ent of decretal sum in para. 29 of the judgment. No mistake or unreasonableness in awarding of such claim could be shown by the appellants. Learned counsel for appellants has also not been able to convince us on any legal plea, which could justify dismissal of suit or refusal of the claim of respondents, allowed through impugned judgment.
12. Mr. S. M. A. Mehmood Advocate for respondent in his arguments has taken us to the whole evidence adduced on behalf of parties and also bulky record of the suit file to show overwhelming documentary evidence brought on record by the respondent to justify his claim allowed by impugned judgment and decree. In order to enable us to adjudicate the justification or otherwise of passing of impugned decree in favour of respondent, we have carefully gone through the findings of the learned single Judge on each issue and have come to the conclusion that though reasons assigned are concise but the same are fully supported from the bulky record of the case in the form of oral and documentary evidence and unexceptionable.
13. For the foregoing reasons, we are inclined to hold that this appeal is devoid of merits.
Accordingly, same is dismissed with costs.