' KHALID MAHMOOD, J.--- Muhammad Nazir appellant has filed this regular first appeal against judgment and decree dated 26-7-2005, whereby learned Senior Civil Judge, Mansehra dismissed the suit of plaintiff filed for recovery of Rs,7,75,000/-.
2. Brief facts of the case are that appellant being a Government contractor had entered into a water rate contract with the defendants, which fetched in lieu of Rs,22,50,000/- and agreement between the parties was scribed on 26-7-1997. However, the defendants by dint of an unwarranted order dated 25-5-1998 cancelled the water rate contract and confiscated the earnest money of the plaintiff. Petitioner in his suit prayed for recovery of Rs,7,75.000/- besides recovery of Rs,39060/- for 49 untraced water connections, Rs,54900/- for local water sale as well as damages of Rs,9,50,000/- for mental/financial loss. Defendants appeared and contested the suit by filing written statement and learned trial Court after recording pro and contra evidence and hearing the parties dismissed the suit. Hence, this appeal.
3. Learned counsel for appellant contended that findings of learned trial Court on Issues Nos.1, 8, 9, 10 and 11 are against the evidence as well as the agreement on record. It was argued that respondents had not only created hurdles in the way of appellant in receiving the water rate but also burdened the appellant with the payment of heavy amounts on account of different pretexts of respondents. He also argued that in spite of several applications of petitioners no positive step was taken by the respondents.
4. On the other hand, learned counsel for the respondent refuted the contentions of appellant and supported the impugned judgment and decree.
5. Arguments heard and record perused.
6. Appellant being a successful bidder was granted the impugned contract and after admitting all the terms and conditions an agreement between the parties was executed on 26-7-1997. The contract was cancelled by respondent No,2 on 21-5-1998. The main grievances of the appellant were that:---
(i) 49 untraced water connections were not traced out by the respondent in spite of his repeated request;
(ii) Pension fund, coal fund and leave salary was illegally deducted;
(iii) Water was not regularly supplied;
(iv) Respondent had not taken forceful action regarding the recovery of water rate from defaulter, which cause great loss;
(v) Respondent had paid a sum of Rs,54,900/- to fire brigade on account of water supply;
(vi) Appellant also prayed for damages and during pendency of suit also raised the plea of recovery of Rs,402,536/- paid to Muhammad Younas employee of respondent No, 1 ' Learned lower Court has thrashed out the entire evidence. Appellant was non-suited on the grounds;--- Firstly, estoppel, as he remained mum regarding the recovery of 49 untraced water connections; ' Secondly, as water connections were not mentioned in the deed, hence, appellant/plaintiff declared not entitled for the recovery of disputed connections,.
' Thirdly, supply of water to fire brigade, mosque and general public through-water tankers was due to urgency.
Fourthly, Payment of Rs,4,02,536/- to Muhammad Younas without receipt is not appealable to prudent mind. Moreover, appellant has not filed any complaint or civil suit regarding the impugned payment.
' Fifthly, It was also held that appellant has amalgamated all claims in one suit, hence, very plaint was declared incompetent. Lastly appellant was directed to file a suit for rendition of account.
7. Issues Nos.1, 8, 9 and 10 are decided jointly by the trial Court. Issue No,8 relates to the hurdles created regarding the smooth and continuous supply of water. It is evident from the publications of different newspapers available on the case file clearly suggest that people were protesting regarding the irregular and insufficient supply. Moreover, respondent No,2 in his own letter dated 27-10-1997 Exh.P.W.1/4 has clearly admitted that water is not regularly supplied to the people. But the trial Court has not properly appreciated the grievances and stance of the appellant/plaintiff.
8. So far number of connections before publication of tender notice is concerned the trial court has wrongly held that as in the agreement number of connection is not mentioned, hence, appellant/plaintiff cannot claim untraced water connection. Learned trial Court has misinterpreted the evidence of plaintiff recorded in this respect. It is evident from the statement of Sajjad P.W.-6 that 47 connections were untraced. The recovery of those connections was Rs,1,37,897/-. In this regard letter is Exh.P.W.6/6. On the request of appellant 146 complaints were filed by the respondent against the recovery of amount of Rs,1,56,707/-. P.W.-4 also admitted that the total connections were 3431, out of which 3115 were domestics and 316 were commercial. In para. 11 of the agreement, it is clearly mentioned that details of consumer of water connections will be provided by the respondent. Respondents, as per their own version failed to trace out 43 connections. This fact has been admitted by their own witness P.W.-4. The recovery of said untraced connection is Rs,39,060/-. It is also proved vide document Exh.P.W.1/8 produced by the respondent that pension fund of Rs,25488/-, coal fund of Rs,11475/- and leave salary Rs,14160/- has also been deducted from the appellant. The said amount is calculated as Rs,51,113/-.
' As appellant entered into contract only regarding the recovery of water rate from the consumer to whom water connection was granted by the. Municipal Committee, therefore, appellant cannot ask or claim regarding the recovery of amount of water supplied to fire brigade, ' mosque or to general public through tankers on emergency basis. Hence, prayer of appellant regarding the compensation of water supplied to fire brigade, mosque and to public has rightly been rejected by the trial Court.
9. As it is admitted fact that due to reasons i,e, mechanical fault, load-shedding or inefficiency of Municipal Committee Staff water was not regularly supplied which is admitted by respondent No,2 in his own letter Exh.P.W.1/4. Moreover, the inefficiency of respondent to recover the outstanding amount through 146 complaints is also evident from the record produced before the trial Court.
Respondents have admitted through goshwara Exh.P.W.8/3 that out of total demand of Rs,2533039/- they have received Rs,2387118/- from the appellant. Hence, per Exh.P.W.8/3 appellant is liable to pay Rs,145921/- whereas notice for recovery .Exh.P.W.8/1 has been issued for recovery of Rs,135702/-. While in another. Notice Exh.P.W.2/D-1 recovery of Rs,1,35,000/- has been shown whereas vide letter dated 16-11-1998 appellant was held responsible for the recovery of Rs,91002/-.
The above mentioned glaring contradictions regarding the demand of outstanding amount clearly shows inefficiency, carelessness and mala fide conduct of the respondent. Hence, it can safely be held that respondent had caused hurdle regarding the regular, uninterrupted and smooth supply of water to consumer. It is also held that following amount has illegally and wrongly been deducted and appellant has not facilitated for the recovery of defaulters through complaints filed before the Magistrate;-- Pension Rs . 25488/- Coal Allowance Rs,11475/- Leave Salary Rs . 14160/- Not recovered through 146 complaints Rs,15670/- Amount of recovery of 43 connections Rs,39060/- Total Rs,1,05,843/-
10. Appellant has proved his case regarding the amount of Rs,1,05,843/-, which has wrongly been deducted or for which he was entitled if proper and efficient steps should have been taken by the respondents.
11. So far controversy regarding the recovery of Rs,4,02,536/:which was allegedly paid to Muhammad Younas regarding outstanding of contractual amount is concerned, it has created serious following questions:---
(i) The alleged amount was paid without obtaining the receipt from the concerned official;
(ii) Appellant has not claimed the said amount in his plaint;
(iii) No issue regarding he alleged amount was framed.
' Hence, no finding can be given regarding the said amount. However, appellant can file a separate suit for recovery of said amount, if so advised.
12. So far question of damages is concerned, the subject-matter is based on a contract. The contract contains specific terms and conditions. Though water supply was irregular in the meanwhile appellant has also not paid the instalments punctually and regularly, which conduct of appellant is evident from the notices issued by the 2012espondent for recovery of installments, hence, appellant is not entitled for damages.
13. Learned trial Court has not properly appreciated the record/evidence and conduct of the party.
The failure of respondent to trace out admitted 43 water connections and to recover the outstanding amount from 146 defaulters clearly suggests that appellant was not at fault, hence, respondents due to their own inefficiency and fault could not cancel the contract. Learned trial Court has ignored the important feature of the case that only one month and 6 days were left for the A completion of the contract and meagre amount was outstanding against the appellant, which would easily be adjusted against the security, if the outstanding amount was not paid, hence, cancellation of contract in the prevailing circumstances seems based on mala fide or due to some other grounds concealed by the respondent. The resolution passed by the Councilors of Municipal Committee also strengthened the plea of appellant. In this respect wisdom can be drawn from case of A.R. Khan v. P.N. Boga (PLD 1987 SC 107). Moreover, similar nature case of Municipal Committee, Mansehra and others v. Syed Makhan Shah (C.A.No,442 of 2002) decided by the apex Court also provides guideline for decision of the present case.
14. So far Issues Nos.4 and 6 are concerned, the same have been clearly decided in the aforementioned issues. The suit is proper and competent and appellant has proved his case.
15. In the wake of above reasons, the judgment and decree of the trial Court is set aside and decree of recovery of Rs,1,05,843/- and the forfeited security of Rs,4,50,000/- (Total Rs,5,55,843/-) with simple interest from the date of cancellation of contract i,e, 21-5-1998 till final payment is passed in favour of appellant against respondent with costs.