ABDUL LATIF KHAN, J.---The appellant has filed the instant regular first appeal against the judgment and decree dated 10-12-2004 passed by learned Senior Civil Judge/A' ala Illaqa, Dir Bala, whereby, suit filed by the appellant/plaintiff against the respondents/Department for recovery of Rs, 16,91,025.22 with interest etc. Has been dismissed.
2. Arguments heard and record perused.
3. A perusal of the record reveals that plaintiff/appellant filed a suit for recovery of Rs, 16,91,025.22 on account of work done by the contractor/plaintiff for construction of civil hospital, the contract of which was awarded by the respondents to the appellant. A dispute arose between the parties after the completion of work and as per Arbitration Clause, Superintendent Engineers of respondents/Department namely Muhammad Islam Khan and Salahud-Din Saleem were appointed as Arbitrators, who have considered the case and by dint of award dated 25-11-1993 accepted the claim of the plaintiff/appellant to the tune of Rs,16,91,025.22. The defendants/respondents after finalization of award by the Arbitrators refused to pay the amount. A written notice was also sent by the plaintiff. In written statement the defendants have admitted the award of contract and completion of work done by the contractor/appellant, however, strangely, in reply to Para No, 3, whereby award has been announced, it is find mentioned in the written statement that they are unaware of the award. Receipt of notice was accepted, however, the defendants have not denied right of the plaintiff for the recovery of said amount and to this extent the written statement was based on evasive denial, which amounts to an admission on their part.
The plaintiff has produced evidence in support of his claim. The relevant record was produced by the Record Keeper C&W Department/defendants. Plaintiff himself appeared as PW3 and reiterated the stance taken in the plaint. On the other hand, Bahadar Said, SDO/ Assistant Director has appeared as DW-1, who in examination-in-chief has never denied the work done by the plaintiff, however, deposed that as per his knowledge Arbitration award is not available on the record and the claim of the plaintiff was barred by time. In cross-examination he deposed that he was not present on the spot therefore, cannot say that who has constructed the hospital. He failed to produce the record of the contract or work done by the plaintiff. He showed his ignorance about construction work as well as payment made to the plaintiff. He deposed that he has taken over the charge a week back and not acquainted with the facts of the case. He stated that he is deposing in his own capacity in the Court and has not attorned by the Department to depose before the Court on behalf of the defendants/respondents. He admitted that the Arbitrators are working as Superintendent Engineers in the Department. Muhammad Farid, Record Keeper, Office of Deputy Director was examined as CW-1, who deposed that the record of the construction work of the hospital and work done by the plaintiff is not available in their office. Similarly, he showed his ignorance about arbitration award, however, he produced certain documents as EX-CW-1/1 to EX- CW-1/4, which are the correspondence regarding the arbitration award. The employee of the Department, who was produced as CW-1 has also showed his ignorance about award, however, the same was posted as EX-PW-3/1, wherein the Arbitrators have announced the award of disputed amount in favour of the plaintiff. Letter No, 1513/ 14-P dated 23-12-2000 on behalf of SDO, Sub-Division Dir addressed to the Executive Engineer, C&W Division, Dir Upper posed as EX-PW-3/3 reveals that the SDO asked for the arrangement of funds to clear the liability of plaintiff/contractor to the tune of Rs, 16,91,025.22 the same letter was posted as EX-CW-1/1. Similarly, EX-CW-1/4 a letter On behalf of SDO to the Executive Engineer dated 2-5-2001 shows that a request was made to approach the high-ups of Health Department for arrangement of funds to avoid any complication, regarding payment of amount to the contractor. The learned trial Court has not decided the "Us" pending before it with conscious and application of independent mind and that is why it is deficient of reasons. The trial Court has not uttered a single word about the award of contract and work done by the plaintiff. Defendants/respondents have never denied that the construction work of hospital was entrusted to the plaintiff and it was completed by him. The perusal of written statement reveals that they have not made denial of the work done by the plaintiff. Similarly, they have not denied the outstanding amount of Rs, 16,91,025.22. The moot question in the case is as to why record of the case was not available. PW-1, PW-2 &, CW-1 were unable to produce the record and it does not stand to reason that how record of construction work is missing from the office of Assistant Director or Deputy Director of the respondents/ Department. Their conduct shows that they were not willing to pay the amount without any justification. Astonishingly, representative of the Department/ respondents deposed that there is no record of the contract and payment made to the plaintiff and outstanding amount, if any, against the Department on behalf of the plaintiff.
They have however produced some correspondence regarding arbitration award, which is available on file. Certain documents are also produced, which shows that the concerned officer has written letter to their high-ups for arrangement of amount to be paid to the plaintiff. So, the pleadings of the defendants as well as statement of sole witness, DW-1, who has showed his ignorance about each and every thing, as he was not conversant with facts of the case, because he was transferred a week ago and was unaware about real dispute between the parties. He did not reply to any question put to him in cross-examination, rather showed his ignorance in this regard, which shows that the defendants has nothing to say in their defence about the claim made by the plaintiff. The plaintiff has been non-suited on the ground that award was not available, however, the plaintiff after obtaining permission from the Court for secondary evidence produced photocopy of the award, which was exhibited as EX-PW-3/1, which reveals that Superintenddent Engineers of the respondent/ Department after deep probe into the matter have announced the award in favour of the plaintiff, whereby he was declared entitled to get the outstanding amount. The Department/respondents have not seriously disputed the award or the claim of the plaintiff outstanding against them. The plaintiff alleged that he used to claim amount and a notice to this effect was also sent to the Department, which is placed on file as EX-PW-3/2 and has been admitted in the written statement by the defendants, which shows that the plaintiff kept asking for the payment of amount, but the respondents/Department was lethargic in payment of the outstanding amount to the plaintiff and, as such, the findings arrived at by the Trial Court that the case is barred by time is misconceived. As the letter on behalf of SDO to the XEN, wherein for arrangement of funds was asked to be made to the plaintiff shows that the plaintiff kept on requesting for payment and the limitation has to be reckoned from the request of the plaintiff and correspondence repeatedly made and not from the date of award as observed by the Trial Court and all these correspondence and asking for the arrangement of the funds amounts to acknowledgment within the meaning of Section 19 of the Limitation Act, give rise to the fresh starting point to the plaintiff and, as such, the claim of the plaintiff could not be refused on the ground of limitation and in order to do substantial justice, the plaintiff has to be awarded the amount regarding the work done by the plaintiff in respect of construction of the hospital, which has never been denied by the defendants/respondents. It was informed that the plaintiff has filed another suit, Which has since been adjourned sine die due to the instant appeal; however, after disposal of the present appeal, the case of the plaintiff being not maintainable shall stand dispose of having been brought on the same 'cause of action, which is not maintainable under the law.
For the aforementioned reasons, I allow this appeal, set aside the impugned judgment and grant a decree in favour of the plaintiff against the defendants to the tune of Rs, 16,91,025.22 along with interest/profit at the prevailing market, which is to be recovered from delinquent officers, who are responsible for the unnecessary delay in payment of the outstanding amount to the plaintiff Disposed of accordingly.