' CH. MUHAMMAD MASOOD JAHANGIR.-- These appeals have its genesis in a suit for recovery filed by Raja Muhammad Zaman Khan, respondent (hereunder will be referred as employee) against Federation of Pakistan, appellant, (hereunder will be referred as employer) before the learned trial Court, Rawalpindi, and the brief facts germane for the disposal of appeals are that the employer invited tenders for construction of a multi storey building and ancillary structure etc, including water supply, sewerage and internal electrification complete in all respect. The employee along with the others submitted tenders for the said work and ultimately after completion of all the formalities, the tenders submitted by the employee were accepted by the employer on 20-3-1980.
The value of the work was fixed Rs,1,54,19,328/14 and completion period was agreed to be 24 months from the date of commencement of the work. The contractual terms and conditions were agreed by the parties to be governed as mentioned in the document PAFW-2249. The employer issued work order dated 6-4-1980 fixing the commencement date as 10-4-1980 and Completion date 9-7-1982. The site of the project was handed over to the employee on 10-4-1980.
' The aforesaid said facts are admitted between the parties according to their pleadings.
2. The dispute between the parties, in brief, which has been gathered from the pleadings, is that during the progress of work, certain hurdles, difficulties, complications, obstructions, impediment were caused and according to the version of the employee, the work could not be completed within the specified time and employee incurred expenses on the supervisory establishment, travelling expenses, damage to the plant and injury to labour etc. Thus the employee through his suit claimed compensation of the over head charges to the tune of Rs,1,73,40,105/76 from the employer.
' However, the employer controverted and refuted the said allegations of the employee on the assertion that delay in completion of the project occurred due to the fault of the employee and no hindrance and complication were created by the employer in the completion of the project.
3. The learned trial court framed the following issues due to the divergent pleadings of the parties: --
(1) Whether the plaintiff has no cause of action? OPD
(2) Whether the plaintiff is stopped by his words and conduct to bring this suit? OPD
(3) Whether the defendant is entitled to special costs under section 35-A of C.P.C.? OPD
(4) Whether the plaintiff is entitled to recovers Rs,1,73,40,105.76 from the defendant? OPP
(5) Relief."
4. That before the learned trial court, employee himself appeared as P.W.1 to collaborate his stance as taken by him the plaint and no other witness was produced by the employee. However, quantitative documents were also produced by the employee in his documentary evidence. In rebuttal Mr. Salah--ud-Din Ahmad, Works Manager, was produced and D.W.1 and volumeness documentary evidence was also tendered before the learned trial court by the employer.
5. That the learned trial court after appreciating the evidence available on record decided Issues Nos.1 to 3 against the employer and partially decided issue No,4 in favour of the employee. The learned trial court pirtially decreed the suit filed by the employee to the extent of Rs,88,70,145/33 in favour of the employee. The operative part of the judgment is reproduced hereunder:--- "Considering the whole facts, default and fault of both the parties, I, am of the view that the plaintiff is entitled to 15% over heading expenses on the final work amounting to Rs,1,98,38,604/63 for the period of 310 weeks since 9-10-1982 to 25-3-1988. He has failed to produce any cogent and confidence inspiring evidence just to claim compensation of Rs,1,73,40,105/76 @ Rs,25 % over head expenses as claimed in para 69 under the Hudson's Formula. So far the question of interest is concerned, I, do not feel justify to grant to the plaintiff. Hence this issues is accepted to the extent of 15% compensation under the Hudson's Formula i.e, Rs,88,70,145/33 (rupees eighty eight lacs seventy thousand one hundred forty five and paisa thirty three).
6. That both the parties being dissatisfied with the impugned judgment and decree dated 27-7- 1998 filed the instant appeals (R.F.A. No,94 of 1998 and R.F.A. No,67 of 1999) before this Court. As both the appeals arise from the same judgment and decree, we propose to dispose them of by this single judgment.
7. The learned counsel for the employer has argued that on the basis of solitary statement of the employee, the learned trial court erred to decree the suit. He further argued that very weak evidence was led by employee to support his version and that either in the plaint or in the evidence of the employee, the detail of over head charges was not mentioned and that learned trial court inspite of observing in the impugned judgment that the employee failed to produce any cogent and confident evidence, has decreed the suit in his favour. He further argued that impugned judgment and decree is not free from taint of misreading and non-reading of evidence. The learned counsel for the employer has also drawn our attention to the Clause 12(7) of the Mutual Contract i.e, Exh.D93 and asserted that under the said clause of the agreement, the employee was stopped to claim any compensation from the employer. In the fag end of his extensive arguments, Mr. Saeed Akhtar, Advocate, learned counsel for the employer submitted that Hudson's Formula has not been recognized by the Hon'ble Supreme Court of Pakistan and in this regard, he placed his reliance on "Karachi Transport v. Karachi Tameerat Ltd." (PLD 1992 Supreme Court 479).
8. Then on his turn, Mr. Muhammad Shoaib Abbasi, Advocate, learned counsel for the employee at the very outset has stated that he also relies on the same judgment which has been referred to by the learned counsel for the employer and his client feels satisfied if the claim of the employee for over head charges is restricted to 5 % of the value of the contract for the actual period as observed by the Hon'ble Supreme Court in the cited judgment.
9. We have heard the learned counsel for the parties and perused the record.
10. Both the learned counsel for the parties have relied upon "Karachi Transport's case (supra) in which the issue involved herein between the parties has been authoritatively discussed. The operative portion of the said judgment is reproduced as follows:-- "Flat rate of 10 % which according to learned counsel for the appellant is supported by the Hudson's Formula, cannot be applied for the reasons that as stated earlier, it does not exclude the profit which cannot be made a basis for calculating the over head expenses on percentage basis. There is no other evidence on the basis of which it can be estimated that the actual loss suffered by the appellant would have been the amount claimed by the appellant @ 10 % of the value of the contract. In the absence of arty such evidence, it would be safe to restrict for over head's claim to 5 % of the total value of the contract for the period of two months.
11. The facts and the circumstances of this case are almost the same which are discussed and decided in the case mentioned (supra). We are in agreement with the observations of the learned trial court that there is no evidence on the basis of which it can be estimated that how much actual loss had been suffered by the employee. So in the light of esteemed judgment, supra, which has been relied upon by both the parties, we are left with no other option except to partially allow R.F.A. No,94 of 1998 filed by the employer and the impugned judgment and decree is modified to the effect that the employee/plaintiff will be entitled to the extent of 5 % instead of 15% of the total value of the contract for the period spreading over 9-10-1982 to 25-3-1988 amounting to Rs,29,56,715/11. Consequently, R.F.A. No,67 of 1999 filed by the employee is dismissed having become infructuous as the employee has not pressed for enhancement of overhead claims. The parties shall bear their own costs. Decree sheets be drawn accordingly.