' ABDUS SATTAR ASGHAR, J.---This Regular Second Appeal under section 100 of Code of Civil Procedure, 1908 is directed against the Judgment and Decree dated 10-10-2005 passed by learned Additional District Judge Lahore.
2. Succinctly the facts leading to this appeal are that appellant filed a suit for recovery of Rs,643156 against the respondents for the balance payment of work done by the appellant pertaining to the work order/ contract Nos.811 and 812 for the construction in the area of Union Council Doolu Khurd and Youhanabad. The respondents while contesting the suit through written statement contended that appellant did not complete the construction work within stipulated period as per their satisfaction and that on checking the work done was found incomplete and unsatisfactory, however they admitted return of the securities to the appellant. Respondents also contended that appellant's earlier Writ Petition No,1060 of 1995 has been dismissed by this Court vide order dated 29-9-1996. Parties led their pro and contra evidence in support of their respective pleas. The learned trial Court after concluding the trial decreed the appellant's suit vide Judgment and Decree dated 28-5-2004. Respondents being dissatisfied preferred an appeal which was accepted by the learned Additional District Judge Lahore vide impugned Judgment and Decree dated 10-10- 2005 while reversing the findings of learned trial Court on issue No,2 and dismissed the appellant's suit while observing that it was barred by limitation as envisaged under Article 56 of the Limitation Act 1908.
3. It is argued by learned counsel for the appellant that learned first Appellate Court fell in grave error while reversing the Judgment and Decree passed by learned trial Court and dismissing the appellant's suit as barred by limitation; that appellant's securities pertaining to the contract were returned by the respondents on 13-2-1994 and 1-3-1994 respectively; that respondents in their report (Exh.P1) prepared for submitting the comments before this Court in his earlier Writ Petition No,1060 of 1995 admitted that final payment of a sum of Rs,643156 according to the bill, submitted by the contractor/appellant was due and that the contractor has been asked to associate the concerned Sub. Engineer for inspection of the work done so that balance payment be made and that on submission of the report of the work done by the contractor to the office, payment of the work done will be made to the contractor. He added that return of the securities manifest that work done by the appellant was satisfactory and report (Exh.P1) constitutes a clear 'promise' to make the payment of the balance amount rendering the appellant's case within ambit of section 25(3) of the Contract Act, 1872 therefore limitation in this case shall commence from the date of breach of promise and not from the date of work done in terms of Article 56 of the Limitation Act, 1908; that the suit lodged by the appellant on 27-1-1997 was within the period of limitation of three years in terms of Article 115 of the Limitation Act 1908; that the learned Appellate Court was in legal error while accepting the respondents appeal and dismissing the appellant's suit through impugned Judgment and Decree dated 10-10-2005.
4. It is resisted by respondents with the arguments that Article 56 of the Limitation Act prescribes three years limitation for the price of work done by the appellant for the respondents to be commenced from the date when the work was done; that in this case the work was done on 3-7- 1990 therefore suit lodged by the appellant on 27-1-1997 was barred by limitation; that the learned Appellate Court appreciating the relevant provisions of law and facts rightly accepted their appeal; that there is no jurisdictional error, factual or legal infirmity or perversity in the impugned Judgment and Decree passed by learned Appellate Court; that appellant has no case to seek interference in the lawful findings of the learned Appellate Court. Takes reliance upon Central Government through Secretary Ministry of Defence, Government. Of Pakistan, Islamabad and 3 others v. Messrs S.K. Company, Mianwali City through partner and another 2002 YLR 3712.
5. Arguments heard. Record perused.
6. At the outset it may be expedient to reproduce the provisions of Articles 56 and 115 of the Limitation Act, 1908 which read below:- 1 2 3
56. For the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for paymentThree yearsWhen the work is done.
115. For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for.Three yearsWhen the contract is broken, or (where there are successive breaches) when the breach in respect of which the suit is instituted occurs, or where the breach is continuing when it ceases.
7. It may be relevant for ready reference to reproduce the provisions of Section 25 of the Contract Act 1872 as under:-- "25 . Agreement without consideration void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.---An agreement made without consideration is void, unless:--
(1) It is expressed, in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless;
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do, or unless;
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these case, such an agreement is a contract."
8. In this case it is evident on the record that appellant concluded allocated work on 3-7-1990 and submitted final bill for payment of balance amount of Rs,643156. Shaukat Ali Sub-Engineer (P.W.1) in his statement stated that in the year 1990 he was appointed as Sub-Engineer District Council Lahore; that work allocated to the appellant had to be concluded on 30-6-1990 which was completed within the stipulated period and as per his record the completion of work was reported to him on 3-7-1990. He also admitted that he along with other officers had twice checked the project. Lateef Akhtar Sub-Engineer (P.W.2) stated that in the year 1990 he was posted in the District Council Lahore; that work allocated to the appellant was checked by him at the spot and found satisfactory. During cross-examination he stated that the appellant has completed the Work on 3- 7-1990. Muhammad Jalil Akhtar (P.W.3) deposed that he remained posted as District Engineer District Council Lahore w,e,f, 18-8-1992 to 16-2-1994; that appellant's payment of the work done was stuck up; that in the year 1993 he inspected the work done by the appellant and found it satisfactory; that three years had lapsed since completion of the work but there was no complaint in this regard on the record therefore pending bill of the appellant was forwarded by him to the Accounts Branch of the District Council Lahore and that security vouchers amounting Rs,43446 and Rs,35407 were also signed by him.
9. Bare appraisal of the above testimonies of the P.Ws. Makes it crystal clear that said officials of the respondents have completely corroborated the appellant's version. Despite lengthy searching cross-examination respondents could not shatter their testimonies therefore respondents plea that appellant had not completed the work within stipulated period and that the work done was not satisfactory is totally devoid of any force. Respondents' own witness Muhammad Zafar Iqbal (DW-1). Did not utter even a single word in this regard. Respondents' other witness namely Abdul Ghaffar S.D.O. District Council Lahore (DW-2) admitted that he was not appointed in the District Council Lahore in the year 1990 rather at that time he was serving in Highway Department. In view of the above respondents contention fails to get any corroboration from the witnesses produced before the Court.
10. Report dated 6-2-1996 (Exh.P1) prepared by Executive Engineer District Council Lahore for perusal of the Administrator for onward transmission to this Court in connection with Writ Petition No,1060 of 1995 reveals respondents' admission that final payment of Rs,643156 according to the bill deposited by the contractor/appellant was due and that the contractor was asked to associate the concerned Sub-Engineer for inspection of the work done so that balance payment be made and that on receipt of report of the work done by the contractor in the office payment of the work done will be made to the contractor. There is nothing on the record from the respondents side to rebut its report (Exh.P1). It will be expedient to reproduce the order of this Court dated 29-9-1996 whereby Writ Petition No,1060 of 1995 was disposed of by this Court as under:-- "According to the claim of the petitioner in this constitutional petition, the petitioner under a contract with respondents had performed his part of the promise and a sum of Rs,6,43,156 fell due to the petitioner in 1990. This petition was filed on 24-1-1995 for a writ of mandamus directing respondent No,1 to verify the bills of the petitioner and to make payment of the sum of Rs .6,43, 156.
(2) Learned counsel was asked to show as to how a money decree can be passed in exercise of the constitutional jurisdictional jurisdiction and as to why the petitioner should not file a civil suit for recovery of the amount allegedly due to him. Learned counsel has answered that the amount is admitted and further that the petitioner is too poor to pay for the court fee etc. Even if the amount is admitted but respondents are failing to pay it, the remedy would still be to recover it by filing a civil suit. While one can sympathize the resource less ness of the petitioner, learned counsel has not been able to show as to how on this ground the law stands modified. On his own showing the claim seems to have become barred by time. In these circumstances, there is no option but to dismiss this petition as not maintainable, leaving the petitioner to avail of the remedy of civil suit, if so advised. It is clarified that nothing stated in this order shall prejudice the determination of issues arising in the suit."
11. Consequent upon the disposal of the above referred writ petition appellant filed a civil suit for recovery on 27-1-1997 which was decreed in his favour vide Judgment and Decree dated 28-5- 2004 passed by learned Civil Judge Lahore and reversed by the learned Additional District Judge Lahore vide impugned Judge and Decree dated 10-10-2005.
12. Learned counsel for the appellant has argued that his case falls within the ambit of section 25(3) of the Contract Act, 1872 read with Article 115 of the Limitation Act 1908. In order to invoke section 25(3) of the Contract Act, 1872 ordinarily following three ingredients are required to be established:--
(a) There must be a promise;
(b) signed by a person to be charged therewith or by an agent generally or specially authorized in that behalf; and
(c) there is a debt which is barred by time.
' In this case report (Exh.P1) duly signed by Executive Engineer and Administrator of District Council Lahore clearly constitutes a 'promise' in terms of section 25(3) of the Contract Act, 1872 to pay appellant's outstanding amount. It is evident on the record that P.W.1 to P.W.3 concerned Sub- Engineers and District Engineers are employees of the respondents. The said P. Ws. In their testimonies have categorically stated that they had checked and found the work done by the appellant as satisfactory and completed within stipulated period of time. In the attending circumstances respondents refusal to make the payment amounts to breach of promise/contract.
The appellant's case therefore falls within the ambit of Article 115 of the Limitation Act, 1908. Reliance is made upon Behlol v. Quetta Municipal Corporation and another 1-)97 SCMR 536) (Supreme Court of Pakistan).
13. 1 lave carefully gone through the facts of the case of Central Government through Secretary Ministry of Defence, Government of Pakistan, Islamabad and 3 others (supra) cited by learned counsel for the respondents which are altogether distinct and distinguishable from the facts of this case. There is no cavil to the proposition that Article 56 of the Limitation Act, 1908 regulates period of limitation for the work done however in this case appellant's claim is governed under section 25(3) of the Contract Act, 1872 extending the benefit of residuary Article 115 of the Limitation Act, 1908 in favour of the appellant. Therefore the dictum laid down in the cited case is of no avail to the respondents.
14. For what has been said above it is obvious that the learned Appellate Court was in legal error while accepting the respondents appeal through the impugned Judgment dated 10-10-2005. The findings of the learned Appellate Court on the point of limitation are based on wrong premises of law and facts. The learned Appellate Court was highly misconceived on important points of law while rendering the impugned findings which are untenable and call for interference by this Court in terms of section 100 of Code of Civil Procedure, 1908. Impugned Judgment and Decree dated 10- 10-2005 passed by learned First Appellate Court being untenable is liable to set aside.
15. For the above reasons, the appeal is accepted, impugned Judgment and Decree dated 10-10- 2005 passed by learned Additional District Judge, Lahore is set aside and the Judgment and Decree dated 28-5-2004 passed by learned Civil Judge Lahore is upheld.
16. Respondent to bear the cost throughout.