HAIDER ALL KHAN, J.---This regular first appeal is directed against the judgment and decree dated 19.10.2013 of learned Civil Judge/Illaqa Qazi, Alpuri, District Shangla, whereby suit of the respondent has been decreed.
2. Brief facts of the case are that respondent sued the appellants for recovery of Rs:1,94,50,308/- for the work done vide agreement deed dated 17.5.2005 pertaining to High Head Hydro Power Projects WAPDA Besham, detail fully mentioned in the heading of plaint. The appellants on appearance before the trial Court, submitted their written statement. The pleadings of the parties were reduced into issues. Evidence of the respondent-plaintiff was recorded. During course of appellants/ defendants' evidence, it was on 05.4.2012 that the respondent- plaintiff submitted an application for withdrawal of the suit and his statement was recorded overleaf of the said application, so his suit was dismissed as withdrawn. On 08.12.2012, application under section 12(2), C.P.C. Was submitted by the respondent for setting aside order dated 05.4.2012 with regard to withdrawal of suit and for restoration of suit proceeding. The application was contested by the appellants and the learned trial Court vide order dated 13.9.2013, accepted the application under section 12(2), C.P.C. And restored proceedings in the suit, which has been challenged by the appellants in separate appeal bearing R.F.A. No.85-M of 2013; the said appeal has been dismissed today vide my separate judgment. After restoration of the suit proceedings, the remaining evidence was recorded by the trial Court and vide judgment dated 19.10.2013, suit of the respondent was decreed. Hence, the instant appeal.
3. Learned counsel for the appellants contended that the impugned judgment and decree is against law, facts and the material available on the record; that the impugned findings are the result of misreading and non-reading of evidence; that the trial Court has not considered the documentary evidence in its true perspective and thereby has failed to apply its judicial mind while recording the impugned findings. He also contended that legally there was no occasion for the trial Court to have accepted the application under section 12(2), C.P.C. Because the suit was withdrawn by the respondent-plaintiff himself and no fraud or misrepresentation was committed on Court. He prayed for setting aside the impugned judgment and decree.
4. Conversely, learned counsel for the respondent supported the impugned judgment and submitted that the same is based on sound reasons and has been passed in accordance with law.
He also argued that the respondent-plaintiff has proved his case through cogent and inspiring documentary as well as oral evidence, therefore, the learned trial Court has rightly passed the impugned decree.
' Arguments heard and record perused.
6. Perusal of the case record would reveal that on 17.5.2005, an agreement for construction of Non- Residential Buildings at High Head Hydro Power Projects WAPDA-Besham for which total estimated cost was fixed at Rs:3,22,45,410/-. According to said agreement, the articles mentioned in BOQ were to be provided by the respondent after having been stood successful bidder, but the map provided by the appellants on 08.6.2005, certain items were changed by them and respondent was directed to use those items according to the aforesaid maps for which no rates were agreed upon by the respondent at the time of execution of aforesaid agreement. The respondent time and again entered into correspondence with quarters concerned with regard to difference in rates of certain items and apprised them that it was not possible for him to purchase and use items as per demand of the appellants.
7. In support of his claim, the respondent-plaintiff deposed as PW-1 before the Court, but nothing beneficial to the appellants could be extracted from him despite lengthy cross-examination. On the other hand, Arshad Ali Project Director deposed as DW-1 and admitted during his statement that Non-BOQ items are not the part of agreement dated 17.5.2005. He also admitted that rates of Non-BOQ items are to be fixed with consultation of the contractor. He also admitted that the contractor-respondent had fixed the steel frames which were not included in the aforesaid agreement, therefore, he was entitled for payment of the same. It is worth mentioning that since the said witness was not produced before the Court for further cross-examination, therefore, his evidence was closed under Order XVII, Rule 3, C.P.C. The appellants have admitted in their evidence that since the respondent has not submitted bill, therefore, payment could not be made to him.
8. So, in view of above-stated scenario of the case and the evidence produced by the parties, it is crystal clear that the appellants are/were bound to make payment of non BOQ items used by the respondent in the A project as is evident and admitted by the appellant-defendants in the negotiation report dated 11.01.2012, which was forwarded to General Manager (NA) Projects, GBHP, Colony WAPDA, Hattian by Project Director AKP-WAPDA, Besham vide his letter dated 12.01.2012. For ready reference, the relevant portions are reproduced herein below:- "7. View point of negotiating Committee ' The negotiating committee was of the view that the contractor's plea as to shortage of labour, materials and consequence inflation of market rates are logical. For reaching an amicable solution, the rates of market/WCSR-2005 rates, with various options were examined. The financial implication of Contractor's demand of rates based on WCSR-2005 with 50% premium comes out to be about Rs.
1.6 million. The committee was of the view that to reach an amicable settlement and to avoid the lengthy hassle/huge expenses of court case and appeals a premium of ()40% would be reasonable as the already approved rates of the VOs ranges between 30 to 45%.
8. Negotiations/conclusion ' After protracted discussion, both parties agreed to a modus operandi as under: ' The Contractor will withdraw the case from the court and will give a legal undertaking in the court that he will not further take up any issue arising out of this contract in any legal/contractual forum.
Ii) The Contractor's claims will be settled as shown in the following table.
9. Recommendations i) The project authorities may work out the Rate Analysis for the 3 VOs as agreed and presented in table at para-8 above and evaluate the work done accordingly.
"The contractor shall submit an undertaking for withdrawal of case from the court and to restrain from instituting any further claim on any forum regarding this contract- settlement".
' The above-quoted portion of report clearly reveals that the appellants had agreed to clear bills of the respondent pertaining to non BOQ items, but after withdrawal of the suit by the respondent- plaintiff they did not act upon the negotiation report and refused to honour their commitment and make payment according to their admitted position, which compelled the respondent to submit application under section 12(2), C.P.C. The record also shows that the learned trial Court also passed the decree and partially allowed the claim of the respondent-plaintiff in accordance with the terms of the aforementioned negotiation- settlement between the parties. The learned trial Court rightly passed the impugned order, which is based on sound footings and needs no interference.
9. In view of what has been discussed above, this appeal fails which is dismissed as such.