' ATHAR MINALLAH, J.--- Through this consolidated order, the instant Regular Second Appeal along with R.S.As. Nos.8/2008 and 9/2008 shall be decided, as they involve common questions and the contracts are similar.
2. The facts, in brief, are that the appellant invited tenders, and the respondent accordingly responded by submitting its tender on 18-6-1983 for 12 class "E" type quarters at Air Complex, Islamabad. The tender was accepted on 27-6-1983. The terms and conditions of the tender were provided in an agreement, and the same could not be unilaterally altered. The appellant suspended the work on 23-8-2013, on the ground that the site and design were to be changed. The work was allowed to be resumed on 20-6-1984 i.e, after ten months from the date of suspension.
The appellant again suspended the work on 17-7-1984. The appellant stopped and, thereafter, resumed the work on several occasions between 6-8-1983 to 2-4-1985. The appellant made several changes in the original work for which the tender had been invited, virtually changing the nature of the work, period, site, specification and design etc. Claims were submitted by the respondent, but the same were not processed. A statement of claims was submitted by the respondent. The payment made by the appellant to the respondent was not in accordance with the claims for the work carried out by the latter. The respondent instituted three suits for the recovery of the claims/money arising from three contracts in the Civil Court at Islamabad on 5-3- 1989, 7-3-1989 and 15-3-1989 respectively. The suits were decreed by the learned Civil Judge, Islamabad on 9-6-1996, 9-6-1996 and 20-12-1995 respectively. The appellant preferred Regular First Appeal No,34/1997, which was decided and decreed on 30-6-2007, by upholding the judgment and decree of the learned Trial Court, with some modifications, particularly setting-aside the findings to the extent of claim No,6, regarding loss of profit. The instant appeals assail the impugned orders passed by the learned Appellate Court.
3. The learned Deputy Attorney-General, in support of the appeals, has contended that; the learned lower Courts have passed the impugned orders based on misreading and non-reading of material evidence/ documents, taking us through the impugned orders, the learned Deputy Attorney- General has attempted to show that the learned Appellate Court had failed to take into consideration relevant and material facts; in Para-4 of the impugned judgment, reference was made to the last 7 lines of the judgment. In Para-5, the last six lines were referred to, while in Para-6, stress was placed on the last ten lines. Likewise, he referred to the last three lines in Para-8 and ninth line from the bottom in Para-9. Paragraphs 10, 11 were also read out in an attempt to show that the impugned orders were a result of misreading and non-reading of material evidence.
4. On the other hand, the learned counsels for the respondent have contend that; there is no misreading or non-reading of the material evidence/documents; the Regular Second Appeal filed by the appellant fails to point out any legal infirmity, so as to warrant interference by this Court, or upset the concurrent findings of the Courts below; cross objections have been filed by the respondent to resist the second appeal, and for the grant of loss of profit by way of claiming interest; the learned Appellate Court, while modifying the judgment and decree, misinterpreted the law by setting-aside the award of 15% per annum as interest for the delayed payment; the learned trial Court has erred in excluding from consideration section 34 of the Civil Procedure Code, 1908; it is well-settled law that the scope of the second appeal under section 100 of the C.P.C. Read with section 101, has a limited scope, and the appellant has failed to disclose or demonstrate that the second appeal is competent; the cross objections have been filed to assail the findings of the first Appellate Court to the extent of denial of profits; the concurrent findings of fact cannot be disturbed in the second appeal., and reliance has been placed on "Muhammad Shoaib Alam and others v. Muhammad Iqbal", 2000 SCM R 903, "Haji Abdullah and 10 others v. Yahya Bakhtiar", PLD 2001 SC 158, "Mst. Hamida Begum v. Mst. Murad Begum and others" PLD 1975 SC 624, "Ch. Muhammad Shall v. Shamim Khanum", 2007 SCM R 838, "Muhammad Amir through L.Rs, v.
Muhammad Sher and others", 2006 SCM R 185, and "Haji Sultan Ahmad through Legal Heirs v.
Naeem Raza and 6 others" 1996 SCM R 1729.
5. The learned counsel have been heard and the record perused with their able, assistance.
6. The concurrent findings of the two lower Courts on the questions of fact have not been found to suffer from any legal infirmity. The learned Deputy Attorney-General was at pains to demonstrate that the impugned judgment and decree was passed as a result of misreading or non-reading of evidence. The judgments of both the Courts below are well reasoned and have correctly appreciated the evidence. The learned Deputy Attorney General strenuously referred to portions of the judgment so as to show that the learned courts have misread evidence, but despite his able assistance could not persuade this Court in this regard. The learned Deputy Attorney General, also raised arguments relating to documents which were not exhibited by the appellant during the trial, nor were made part of the record, and therefore, the same could obviously not be considered at this stage. 1f the documents were relevant, then it was the obligation of the appellant to have brought them on record at the stage of the trial, by exhibiting the same in accordance with law.
The Federation cannot be extended any preferential treatment, as it stands on the same footing as any other litigant: This Court is not persuaded that the appeals have any merit within the parameters provided under section 100, read with section 101 of the C.P.C., so as to require interference with the concurrent findings of the learned lower Courts. It is settled law that concurrent findings, however erroneous those findings may be, will not be interfered with under section 100 of the C.P.C., unless the lower courts have misread the evidence on record, or may have ignored a material, piece of evidence on record through perverse appreciation of evidence.
Reliance is placed on "Amjad Sharif Qazi and others v. Salimullah Faridi", PLD 2006 SC 777. It is also settled. Law that reappraisal of evidence on record by the second appellate court is not permissible under section 100 of the C.P.C., as held by the august Supreme Court in "Haji Sultan Ahmad through Legal Heirs v. Naeem Raza and 6 others", 1996 SCM R 1729.
7. Next, the reasons stated in Para-13 of the impugned judgment, relating to the interest awarded in favour of the respondent/plaintiff, do not appear to be tenable in law. The learned first Appellate Court has assumed that since the interest is not provided in the contract, therefore, the same could not be allowed. The learned Appellate Court excluded from consideration the provisions of section 34 of the C.P.C., which caters to such a situation. The respondent/plaintiff, having established the case in its favour by obtaining the respective judgment and decree, has unambiguously made itself entitled to the determined claims to be paid along with interest. Moreover, the delay in payment of the determined claims obviously attracts the provisions of section 34 of the C.P.C. The argument of the learned counsel for the respondent regarding the entitlement of the latter to payment of the decreed claims with interest is not without force. The respondent is therefore, entitled to interest for the period of delay in payment of the claims, and as such the observations made, and the conclusions drawn by the learned first Appellate Court in Para-13 of the impugned judgment are hereby set aside. The appellant shall, therefore, be liable to pay the decreed claims with interest from the date of institution of the suit to the date of satisfaction of the decree. The interest shall be calculated and paid according to the notified bank rate at the relevant time.
8. For the reasons stated above, the cross-objections to the extent of the award of interest for the period of delay is accepted, while the appeals filed by the Federation fail and are hereby dismissed.