' WAQAR AHMAD SETH, J.---The instant regular first appeal has been filed against the judgment and decree of learned Civil Judge-XII, Peshawar, dated 24.02.2011, vide which suit of the respondent/plaintiff was decreed as prayed for.
2. The succinct facts relevant for the disposal of this appeal are that, respondent/plaintiff had filed a suit for recovery of Rs.10,899,614/- as damages. It is averred in the plaint that in pursuance to notice for auction published in daily newspaper, respondent/plaintiff also appeared in the said proceedings for auction of Empty Gunny Bags and submitted call deposit in the sum of 12s.400,000/- in favour of appellants defendants for the category of class "B" (265769) and class "C"
(93405) respectively on 01.10.2003, which was being the highest bid was accordingly accepted.
That on 6.10.2003 appellants/defendants issued letter No. 6935/c/22 (auction) to the respondent/plaintiff to deposit 1/4 of the total amount in respect of category class "B" and "C" in the name of appellants/defendants through bank draft, which he did. That after completion of the requisite formalities, respondent/plaintiff went to Chitral for receiving the empty gunny bags, but the bags were neither in good condition nor complete, and the bags delivered were also in bad condition. It is further averred in the plaint that respondent/plaintiff time and again made his complaint to the concerned, but in-vain.
3. Appellants/defendants were put on notice, who appeared and contested the suit by filing their written statement, with certain objections. The learned trial court after framing of issues and recording of pro and contra evidence of the parties decreed the suit of plaintiff/ respondent as prayed for, vide judgment and decree dated 24.02.2011.
4. Feeling aggrieved from the aforesaid judgment and decree of the learned trial Court, appellants/defendants have filed the instant appeal.
5. Arguments heard and record perused with the valuable assistance of both the learned counsel for the parties.
6. Suit of the respondent/plaintiff for the recovery of damages is based on specific damages in the shape of expenditure of labourers and transport, call deposit and other amounts deposited in the Government Treasury for which issue No.3 has been framed, whereas, for second claim of general damages issue No.4 has been framed. Certain facts are admitted on record and that are; there is no contract in writing and a publication in the newspaper Ex.DW-1/12, dated 21.09.2003 was issued and respondent/plaintiff agreeing to the terms and conditions mentioned therein participated with his free consent and without any allegations/contentions of coercion, undue influence, fraud, or misrepresentation, in general or in particular and by whom.
7. In the plaint respondent/plaintiff has admitted that he participated in the auction proceedings in respect of Empty Gunny Bags, class "B" 265769 in number and class "C" 93405 in number by accepting the terms and conditions mentioned in the advertisement and after depositing the call deposit, he participated in the bidding and his bid was accepted and order to this effect was issued on 6.10.2003, with a clear direction to deposit bank draft of 1/4 of the total amount, which he did, but he was not handed over the requisite auctioned empty gunny bags and when he visited PR centers the same were having gunny bags but absolutely in deteriorated conditions. As against this appellants/ defendants had contended in their written statement that on 1st October 2003, auction notice was published in the newspaper and according to clause-3 the interested parties were directed to inspect the go downs, where the auction property was lying, before the date of auction, as the auction was based on the basis of "as and where" {{URDU TEXT}} It is alleged by the appellants/defendants that respondent/plaintiff participated in the bid process after examining the items and never objected at that time, nor requested for extension of time for inspection. It is also contended that according to the terms and conditions mentioned in Ex.DW-1/12, respondent/plaintiff was required to receive and pickup the auctioned material within fifteen days and in this respect respondent/plaintiff was directed time and again to collect and left the material, but he failed to do so, due to which they have suffered loss in the sense that the wheat grains were stored in private go downs, for which they have paid substantial amount. In this respect number of documents were exhibited and placed on record.
8. In order to decide the issue Nos.1, 2 and 6, evidence of the parties is to be scanned which reveals that vide Ex.PW-1/1, petitioner was informed that his highest bid has been accepted in respect of class "B" and "C" empty gunny bags lying in various PRs centers/sales points in District Chitral. This letter is dated 6.10.2003. No doubt respondent/plaintiff has deposited the requisite call deposit and after acceptance of his bid, deposited 1/4 of the total amount vide Ex.PW-1/3. Record is suggestive that respondent/plaintiff made the sorting/pick and choose on the spot during this time and has received 79800 class "B" bags and 21028 class "C" bags from different centers. This. Fact is admitted by all the PWs, produced by the respondent/plaintiff, and specially PW-7 who is the special attorney of the respondent/plaintiff which confirms the fact that respondent/plaintiff has done the pick and choose whereas, the auction was on the basis of "as and where"(URDU TEXT).
Respondent/plaintiff has not alleged any mala fide against the appellants/defendants nor has stated in his plaint or in his statement recorded on oath, that who had replaced the auctioned items and when. Respondent/plaintiff in order to prove that the delay was on the part of appellants/defendants had exhibited certain documents i.e. Ex. PW-1/7 to Ex. PW-1/12, issued by District Food Controller Chitral & Director Food N.-W.F.P., Peshawar, whereby In-charge Food grains supervisor District Chitral was directed to hand over the required empty gunny bags to the highest bidders. All these exhibits pertain to October and December 2004, whereas, the auction was conducted in October 2003, with fifteen days time to collect and pickup the said items. Nothing is on record to show nor is alleged by the witnesses that when they visited PRs centers, and no auctioned material was available, rather it is on record that items were available and respondent/plaintiff did the sorting by picking up the good one and leaving out the undesired one, for which he was not required, as the auction was made with his consent, as he had inspected/visited the spot/item.
9. It is admitted by PW-7 who is the special attorney of respondent/plaintiff in his cross examination that he was present along with respondent/plaintiff at the time of auction and has visited and inspected the items to be auctioned, along with respondent/ plaintiff. It is also admitted by the said witness that he visited the PRs centers three four days prior to the auction proceedings and saw/ inspected the gunny bags as the same Were lying over there and the same were never objected at the relevant time. In view of these admissions respondent/plaintiff cannot take advantage of Ex.
PW-1/8 which is dated 2.10.2004 i.e. More than one year after the auction proceedings and the presumption that the auctioned empty gunny bags may have lost the quality due to climatic changes, as the delay was on the part of respondent/plaintiff, because he was supposed to have collected the same within fifteen days. ExDW-1/9 consisting of 127 sheets shows that due to delay committed by respondent/plaintiff the appellants/defendants department has suffered by engaging private go downs for the purpose of storage of wheat grains. PW-7 specifically admitted that before entering into the bidding process, they had the knowledge of the terms and conditions mentioned in the publication and willingly they participated in the auction proceedings after inspecting the items, hence are left with no option to object on the quality and specification of the auctioned material. In exactly similar circumstances in the case of Rahim Bakhsh Piracha v.
Muhammad Ibrahim, reported in 1978 SCM R 220 (Supreme Court of Pakistan) it has been held:--
(a) ----Reasonable opportunity to examine or inspect goods---Does not mean unlimited period---In a contract of commercial nature, it would be sufficient compliance with S. 41 if "two days" time is given.
(c) ---Buyer requesting for opportunity to examine or inspect goods subject matter of contract of sale. Vendor giving him such opportunity and buyer not utilizing it Buyer even not asking for further time to inspect goods. Held. Blame for non-inspection of goods could not be laid on vendor-appellant. In view of above, the findings of trial court on issues Nos.2 and 6` are reversed.
10. As regarding issue No.3 which in-fact pertains to specific damages as respondent/plaintiff has alleged that for the transportation of the auctioned material he has spent/paid Rs.16,59,800/- to the labours as well and in this respect produced one Ajmal Khan, RW-6, who has stated that he is labour in-charge and used to provide labour and transport to the respondent/plaintiff and for transportation of said auctioned material he engaged 22 persons, four times. He has further stated that he has paid the said amount to the labourers as wages and expenses for food, boarding and transport. In his cross examination PW-6 has said that he used to engage labour and transport from Peshawar to Chitral and that's why the claim amount has been spent. It is astonishing that why respondent/plaintiff used to engage labourers and transport from Peshawar for the purpose of shifting auctioned items from Chitral to Peshawar as he himself belongs to Chitral, as permanent resident. Moreover, the said witness of respondent/plaintiff has not produced a single voucher in the shape of Adda challan, bills of food and boarding charges but just/mere oral statement and in this respect the law is settled one, wherein specific damages have been defined, are such as the law does infer from wrongful act, but those must, therefore, be specifically claimed in pleadings and prove through evidence thereof at the trial. The specific damages as claimed by the respondent/plaintiff are unnatural with no evidence on record to show that why the transport was hired from Peshawar to Chitral and not from Chitral. Admittedly, respondent/ plaintiff has picked up the auction material of his choice and may have shifted through PW-6. If at all there were substandard auction material in the PRs centers and the matter was disputed one, then without settling the issue respondent/plaintiff engaged the labour and transport four times and that too, from Peshawar to Chitral. The specific damages has to be proved by the claimant, each item wise of loss which refers to the evidence brought on record. Reliance in this respect is placed on 2013 CLD 733 Supreme Court and 2012 CLD 6 Supreme Court.
11. In the instant case, record is suggestive that due to non fulfillment of the act in time by the respondent/plaintiff, the Government has suffered a loss and there is an act of negligence on the part of respondent/plaintiff then the Government could not be penalized to pay damages for loss sustained by respondent/plaintiff for his own act of negligence. Hence, the issue as decided by the trial court is reversed.
12. Respondent/plaintiff has also claimed general damages for which issue No.4 was framed regarding sustaining physical and mental agony due to blockage of millions of rupees.
Respondent/plaintiff himself has not appeared in the witness box in support of his claim that how much physical and mental stress has been absorbed, rather PW-7 has made a general statement regarding the physical and mental stress of the contractor Syed Jaffar Shah, such damages were obviously general damages and the same was to be determined by following the "rule of thumb" and any accurate and definite answer to the question of quantum of damages was not possible but the learned trial court has granted decree of seven million without mentioning of particular reasons. For determining the general damages for mental torture, agony, deformation and financial loss were to be assessed following the "rule of thumb" and said exercised falls in the discretionary jurisdiction of the court, which has to decide in the facts and circumstances of each case. In the instant case the record is suggestive that respondent/plaintiff despite having the knowledge that he had to collect and pick the auction items within fifteen days failed to collect the same in-spite of the fact that he entered into the agreement after inspecting the material/items before the auction, therefore, he had the stoppal (sic) as well as negligence on his part and for which he under no circumstances could claim nor could be awarded seven million as damages, blind foldedly. The issueNo.4 is accordingly reversed while relying on the ratio decidendi given in 2013 SCM R 507.
13. Record is suggestive that these were not the only empty gunny bags put to auction at Chitral, rather Ex.PW-4/2 shows that on 17 other stations throughout the Province, the empty gunny bags were put to auction and none other than the respondent/plaintiff had objected to the same.
Ex.DW-1/1 is the notice dated 02.01.2007 which was issued to the respondent/plaintiff by one of the appellant/Director Food KPK, for forfeiting the security etc in case of failure to collect the auction material which was supposed to have been lifted within fifteen days as per condition six of the advertisement. The said legal notice was received by the respondent/plaintiff and thereafter he issued notice Ex. PW-7/2 which is dated 7.7.2007 by making the lame excuses. It is pertinent to mention here that the appellants/department issued number of notices on different occasions for lifting the auction material, but no reason whatsoever was given. These notices were dated 7.10.2003, 22.3.2004, 14.5.2004, 2.2.2005 & 4.2.2006, which are Ex.DW-1/2 to Ex.DW-1/3 etc. As regarding the evasive allegations of respondent/plaintiff that the auctioned empty bags were in deteriorative condition is not correct, nor the same is based on any material evidence because respondent/plaintiff checked the bags before auction and these bags were at about 90 different PRs centers. Respondent/plaintiff has not alleged particularly against any center that the requisite categories were removed by whom and when. The appellants department is the Government Department which cannot be left at the mercy of few employees, who while conducting the Government cases, show very casual and lethargic attitude. For granting such a huge damages amount against the Government department is not justified as the party claiming damages had firstly to plead and then to prove by sufficient, trustworthy, independent and cogent evidence that the concluded agreement existed between the parties, the other party committed breach of contract/ agreement, such breech entitled the first party to damages and the B foremost factor was quantum of damages. In the instant case respondent/plaintiff has failed to produce any evidence to show that in fact he suffered any loss due to breach of contract, the solitary statement and that too, of an attorney was not sufficient to decree the colossal suit amount as the respondent/plaintiff witnesses did not state anything about damages. In the case of Azizullah Sheikh v. Standard Chartered Bank Limited reported in 2009 SCM R 276 it has been held that the failure to produce evidence that due to breach of contract, they were in fact entitled to damages and to what extent, which were sine-qua-non for the grant of damages under section 73 Contract Act, 1872.
' In the case of Messrs Kamran Construction (Pvt.) v. Nazir Talib reported in 2010 SCM R 829, it has been held:- ----S. 73---Suit for recovery of damages caused by breach of contract---Proof---Party claiming damages must establish contract, breach thereof and extent of damages---Burden would lie on plaintiff, who without discharging same could not succeed---Principles.
Under section 73 of the Contract Act, 1872, the party claiming damages has to firstly plead and then prove by sufficient, trustworthy, independent and cogent evidence that the conclude agreement existed between the parties, the other party committed breach of contract, such breach entitled the first party to damages and the foremost factor is quantum of damages. A party claiming damages suffered due to breach of contract must establish the contract, the breach thereof and the extent of contract of damages. The onus is on the plaintiff and without discharging it, he cannot succeed. Section 73 of the Contract Act, prescribes the rule for assessing the damages suffered due to breach of contract.
14. Since, there is nothing on record to prove or to show that respondent/plaintiff was not provided with the auction gunny bags or he was restrained by someone, rather it was the respondent/plaintiff who made the pick and choose and refused to receive the remaining on the pretext of deteriorated condition. The learned trial court while deciding issues Nos.2 and 6 at page seven has given the presumptions that it was not humanely possible for the respondent/plaintiff to have checked all the empty gunny bags lying in more than 90 different PRs centers in just 09 days, but failed to realize that respondent/plaintiff never asked for extension of time and had admitted the inspection of these bags three/four days prior to the auction proceedings, therefore appellants/ defendants department was legally justified to forfeit the call deposit etc.
15. In view of the above, discussion all the issues decided by the trial court through the impugned judgment and decree are reversed. Judgment and decree dated 24.2.2011 is hereby set aside by accepting the appeal of the appellants/defendants and the suit of the respondent/plaintiff is dismissed with no order as to cost.