ZAFFAR HUSSAIN MIRZA, J.-These five letters patent appeals arise out of the judgment dated 21-5- 1964 by the learned Single Judge on the Original side of the Karachi Bench of the erstwhile High Court of West Pakistan whereby the suits filed by present appellants were dismissed. Since the learned Single Judge disposed of all the suits by a common judgment for the reason that the same arose out of common facts, we also propose to dispose of these appeals by the present judgment.
2. Briefly the facts leading to the present appeals are that the appellants filed separate suits for recovery of money allegedly due to them on account of the work done by them in pursuance of contracts for building quarters, houses and other buildings for the Pir Illahi Bakhsh Cooperative Housing Society at Karachi except in L. P. A. No. 83/68 in which the claim also pertains to a house built by the appellant therein for respondent Pir Illahi Bakhsh (since deceased and represented by his L. Rs.) in his individual capacity. Pir Illahi Bakhsh Co-operative Housing Society (hereinafter referred to as the Society) came into being somewhere in the end of 1947 or the 'beginning of 1948 for the purpose of building and providing residential accommodation for the displaced persons who had migrated to Pakistan in the wake of the Partition The case of the appellants is that the Society invited tenders from contractor for the enormous work involved in the scheme and in response thereto tenders were submitted by the appellants which were acce2ted in pursuance of Resolution of the Society dated 3-2-1948 on the rates mentioned in- the tender documents. The appellants were then given work orders for different portions of the area on which the buildings were to be constructed. The work started almost immediately and each of the appellant admits having received periodical payments from time to time from the Society which was in the meantime duly registered under the Bombay Co-operative Societies Act, 1948 on 30-3-1948. The appellants claim to have executed considerable portion of the work awarded to them but while the remaining work was in progress the Managing Committee of the Society was served with a show-- -cause notice for supersession and replacement by a nominated body on the allegation that the affairs of the Society had been grossly mismanaged. As a result of these proceedings by order dated 24-1-1951 the Registrar of Co-operative Societies, Karachi, in exercise of his powers under rule 48(1) of the Bombay Co-operative Societies Rules ordered the supersession of the Managing Committee for one year and by a further order dated 2-3-1951 nominated a Managing Committee of his own choice comprising of seven members including the Chairman. It is the case of, the appellants that not--withstanding the aforesaid change of Management they carried on their work, but on 10-4-1951 the newly constituted Managing Committee of the Society forcibly dispossessed them from the site of work with the result that the building materials collected by them for the purposes of the works were also left behind and misappropriated by the Society. The appellants then demanded the payment of their dues from the Society and also served notice under section 80 of the C. P. C. On the Government of Pakistan as well as a notice under section 70 of the Bombay Co-operative Societies Act upon the Registrar. On getting no satisfactory response to their claims, they filed separate suits impleading the Government of Pakistan, the Society, Pir Illahi Bakhsh and one Major Mahmoodul Hasan as defendants.
3. Each appellant claimed decree for a sum certain as balance of payment due on account of work done and materials taken over by the respondents, jointly against the respondents. The defence of Government of Pakistan, who filed a separate written statement, was that it is not concerned with the transaction in suit although the Registrar of Co-operative Societies, Karachi had admittedly taken action by supersession of the Managing Committee and appointment of a new Committee in its place. Thus the Government denied the claim of the appellants and also its liability.
Respondent No. 2, the Society and Pir Illahi Bakhsh, however, filed a joint written statement, also denying their liability. They also denied that any contract was entered into between them and the appellants. They averred that the alleged contract or its copy has never been produced before- any Officer of the Society and also repudiated the allegation that the Managing Committee of the Society ever authorised the execution of any such contract or ratified the same. As to the claim set up by the appellants, it was stated that there was nothing on the records of the Society to support the same and as such it was repelled. Respondent No. 4 Major Mahmoodul Hassan filed a separate written statement admitting most of the allegations made by the appellants. He attributed male fides against the Registrar, Co-operative Societies in taking action against the Society and dispossessing it of its property. His plea was that respondents Nos. 1 to 3 were liable to settle the final bills of the appellants and make payment of the dues as all the documents were in their possession. A number of issue of law and fact were framed by the Court on the pleadings of the parties in each suit, but as the matter was argued before us, it seems to us, the final out--come of these appeals mainly turns on the decision of some common points. It is mentioned in the judgment of the learned Single Judge that the parties had examined evidence in one suit only and agreed that the evidence recorded therein shall be treated as evidence in all the suits.
4. In the impugned judgment the learned Single Judge has taken the view that the suit against Government of Pakistan was not maintainable as the notice under section 80, C. P. C. Was not, served on the Chief Commissioner of Karachi, who was the Provincial Government for purposes of the then Federal Capital Area of Karachi. Ha further held that there was no privity of contract between the Government of Pakistan and the appellants and, therefore, it was not liable to be sued.
As to the validity of the alleged contract and its binding force on the society, the learned Judge found that there was nothing in the evidence to indicate that the contracts with the appellants were confirmed in writing by the Society after it was registered Body. As to the liability of respondent Pir Illahi Bakhsh, the learned Judge found that he was in no way responsible for giving the contracts to the appellants as alleged. The learned Single Judge rejected the evidence of respondent Major Hassan to the effect that the tenders submitted by the appellants were approved by the Managing Committee of the Society in the first instance and by the General Body of the society finally on 3-2-1949. In this view of the matter the learned Judge gave a finding that there was no valid contract between the appellants and the society; and that respondent Major Hassan alone is responsible under the contract for the loss sustained by the appellants in his individual capacity. As to the question whether the appellants had established the quantum of work done by them, the learned Judge came to the finding that there was no evidence on record to establish that the contractors had done any extra work beyond the work specified in the contracts.
He was, however, of the opinion that some work was done by the appellant under the contracts, but the extent thereof and its value had not been proved by any evidence produced by the appellants. Accepting the evidence of the defence witness Jamaluddin overseer of the society who was deputed to physically check the work claimed to have been done by the appellant in each suit, the learned Judge held that on the assessment made by this witness of value of work alleged to have been done by the appellants and taking into consideration the admitted payments received by each, it was clear that the appellants were made over payment far in excess of the dues claimed by them. The learned Judge also found against the appellants on the question whether the appellants were stopped from executing the contract work by the newly constituted Managing Committee. He was, however, of the opinion that there was some evidence to the effect that the plaintiffs had left some building materials on the site after they had stopped working, but there was nothing to prove the value of the material so left behind. As to the allegation that there was collusion between the appellants and Major Hassan, the ex-Secretary of the Society the learned Judge reached the conclusion that there was no evidence to estab--lish the allegation. In the view of the learned Judge Major Hassan withheld the relevant books of account and other receipt pertaining to the contracts out of his own personal motive to avoid liability arising out of the contracts entered into by him with the appellants on behalf of the society in" excess of his authority. As to Suit No. 368 of 1954 (L. P. A. No. 83 f 1968) the learned Judge held- that the appellant partnership firm in this- case was different from the one who was awarded the contract and, therefore, had no locus stand! to file the suit. Finally the learned Judge also reached a finding that in Suit No. 368/1954 (L. P. A. No. 83/1968) there is no evidence that the house allegedly built by the appellant in that case personally for respondent Pir Illahi Bakhsh belonged to him. On these aforesaid findings the learned Judge dismissed all the suits filed by the appellants.
5. These appeals were heard together and the leading argument was addressed on behalf of the appellants by Mr. Ibadat Yar Khan, learned counsel appearing for the appellant in L. P. A. No. 164/1964. Messrs Habibur Rehman, S. M. Saeed and Munawwar Abbas appearing on behalf of the rest of the appellants supplemented the arguments of Mr. Khan and dealt separately with peculiar features of their respective cases. On behalf of Government of Pakistan, Mr. S. Hamid Hussain replied to the arguments addressed for the appellants and Mr. Ilyas Ahmed generally replied to the arguments on behalf of the Society.
6. It will be convenient first to take up the question whether the Government of Pakistan is liable to be sued in these cases. It was urged on behalf of the appellants that since the Registrar of Co- operative Societies, Karachi was acting under the administrative control of the Government of Pakistan under the provisions of Pakistan Establishment of Federal Capital Order, 1948 (G. G.-O. No. 15), it was vicariously liable for the acts of the Registrar. Since the main claim of the appellants arises out of the alleged contracts between them and the Society, it was conceded that the claim against the Government was based on tort. The allegation relevant in this connection is that the newly appointed Managing Committee illegally dispossessed the appellants from the site of the work and took over the materials belonging to them lying on the site. It was further urged that the learned Single Judge erred in holding that notice under section 80 was invalid as it ought to have been served on the Provincial Govern--ment. We are unable to agree with the learned Judge that the notice of suit should have been served on the Provincial Government or the Chief Commissioner of Karachi. Section 80, C. P. C. On its plain reading provides that in case of a suit instituted against the Central Government notice has to be served on it through its Secretary. Since the Government f Pakistan was impleaded as a party, it would appear that notice was Tightly served on the said Government. However, we agree with the learned Single Judge that so far as the claim relating to the contracts is concerned, the Government of Pakistan is not liable for want of privity. There is no evidence on the record to indicate that the Government was in any way responsible for the alleged action of forcibly dispossessing the appellants. The supersession of the Committee was ordered by the Registrar in exercise of his powers under rule 48 of the Rules framed under the Bombay Co-operative Societies Act and 'by virtue of clause (3) of rule 48 all the powers and duties of the Committee, during the period of supersession, are exerciseable by the newly appointed Committee. Thus it is clear that under the law any action taken by the Committee appointed by the Registrar would be deemed to be the action of the Managing Committee of the Society for which the Society alone can be held responsible. In any case the supersession of the Committee is not in question in these cases and action taken in pursuance of statutory powers by the statutory functionaries cannot be deemed to be the responsibility of the Government of Pakistan under whose administrative control through the Chief Commis--sioner, Karachi the Registrar may be working. It was urged by Mr. Hamid Hussain that there is nothing in the evidence to support the allegation that the building materials were appropriated by the Government or any of its Officers. We agree with this submission and hold that Government of Pakistan is not liable for anything done by the Committee newly appointed by the Registrar. Additionally it was argued by the learned counsel for the Government that the suit was barred by limitation. Reference was made to Article 2 of the 1st Schedule to the Limitation Act which prescribes a period of 93 days for bringing a suit for compensation for doing or for omitting to do an act alleged to be in pursuance of any enactment and the period of limitation commences from the time when the act or omission takes place. The other possible Article attracted in the case is Article 36 dealing with a suit for compensation for any malfeasance, misfeasance or non-feasance independent of contract which provides a period of two years. The cause of action for the suit as pleaded in the plaint arose against the Government of Pakistan on 2-1-1-1951 and continued until 10-4-1951. But all the suits were filed in the year 1954 and were, therefore, clearly barred by limitation. In Province of East Bengal v. S. M. Faruque PLD 1959 Dacca 268the Dacca High Court held that a suit for damages for eviction from requisi--tioned premises on orders of Requisition Officer passed under colour of legal duty was governed by Article 2 of the Limitation Act. No argument was submitted in reply to these submissions. The suit against the Government, therefore, appears to be barred by limitation and was, therefore, rightly dismissed.
7. It will be convenient next to take up the liability of respondent Pir Illahi Bakhsh. In the plaints filed by the appellants their case is that at different times the aforesaid respondent called the respective appellant through respondent Major Hassan who was the Organizer of P. I. B. Co- operative Housing Society and offered him the building contract in ques--tion; and in consequence of this offer each of the appellants entered into a contract with the Society. In L. P. A.
No. 164/64 the time given is "about the middle of 1949", in L. P. A. No. 82/68 it is "towards the middle of 1 948", in L. P. A. No. 83,/68, 84/68 and L. P. A. No. 85/68, it is "towards the end of 1947". It may be recalled that the Society was registered on 30-3-1948, before which it was an unregistered Society.
Respondent Pir Illahi Bakhsh in his written statement has denied this allegation and in his evidence has explained the circumstances in and the extent to which he was associated with the Society. He has stated that on establish--ment of Pakistan he was a Minister in the Sind Cabinet incharge of the portfolio of Education and Local-Self Government. He was apprised of the miserable condition in which the refugees including respondent Major Hassan were living in camps. At the request of the aforesaid refugees they were shifted to the land where the P. I. B. Colony is now located. At this stage Major Hassan suggested the idea of establishing a colony for the refugees for which a Co- operative Housing Society could be formed and which was in fact formed in March 1948, with Major Hassan as its Organizer. He was then offered the Presidentship of the Society and was elected as such. He then became Chief Minister of Sind in May, 1948. According to him the entire work was being done by Major Hassan and had nothing to do with the work of the Society. He categorically denied having called the appellants and entrusted them with any work. After the supersession of the Managing Committee he was nominated by the Government as its Chairman. As regards the alleged house constructed for him by the appellant in L. P. A. 83/68 he stated that two plots of land were allotted to his minor nephew and he constructed a house thereon with the help of a mistri. He paid for all the materials and the cost of the construction and has denied that Taj Construction Company had built this house. As already mentioned the learned Single Judge found the said respondent not to be responsible for the contracts in any way. In this behalf he has referred to the admitted position that the Society had passed a Resolution dated 30-1-1948 authorising him to invite tenders and accept one or two of them. He has also referred to Resolution No. 7 (Exh. A/51) dated 3-2-1948 which clearly indicated that the acceptance of the tenders, even if this was a genuine document, was not done by the said respondent as it bears the signature of Major Hassan alone. Before us the claim against the said respondent was not pressed seriously and in any case we find no evidence on the record nor was any referred to in support of the allegation that the said respondent was in any way person--ally liable. The case of the appellants seems to be that the contract was given on behalf of and under the authority of the Society. The said respondent cannot, therefore, be held liable in his individual capacity. As to the claim regarding the house, reference was made to the evidence of Muhammad Khan in L. P. A. No. 83/68. He has not stated in his evidence that respondent Pir Illahi Bakhsh entrusted the work of construction of his house to him. The only thing he stated was that his firm had built 450 quarters and a first class bungalow which is in the possession of the said respondent. Admittedly the work of the house was outside the tender work and finds no mention in the contract. This witness further made categorical admission that it was Major Hassan, who had asked him to build the house and promised that the Society will pay for the work after recovering the same from Pir Illahi Bakhsh. From these admissions it is clear that there was no privity of contract between the appellants and the said respondent. Learned counsel for the appellants in this case conceded that there is no evidence as to the quantity or value of the work allegedly done on the house. The claim regarding the houses as against Pir Illahi Bakhsh has also not been proved. In this view of the matter we hold that the suit was rightly dismissed against him also.
8. I propose now to take up the claim of each appellant separately.
L. P. A. No. 164/64 The claim of the appellant in this case is for Rs. 52,585 for the work done and the material left at site, the particulars of which have been given in Annexures 'A' to 'A/1'. The contract in this case is alleged to have been entered into 28-2-1949 vide letter of acceptance of tender (Exh. B-3) which reads as follows;-- "Your tender dated 13-2-1949 is hereby sanctioned as per General Meeting Resolution No. 7 dated 3-2-1948. You are hereby directed to commence the work forthwith. A copy of the schedule of rates is attached herewith.
(Sd.) (S. M. Hassan) Organizer"
Schedule 'B' attached to this letter (Exh. B-4) describes the quantities of work with corresponding rates for building one barrack consisting of six quarters. This document is endorsed with the following words: "Approved in the General Meeting on 2-2-1948 with the condition of the supply building material on Government rates.
(Sd.) (S. M. Hassan) 3-2-1948"
It has to be borne in mind that the Society was registered on 30-3-1948. As pointed out by the learned Single Judge, Resolution No. 7 dated 3-2-1948 referred to the tenders of three appellants in other appeals. He reached the finding that with regard to the acceptance of the tenders of other appellants there is nothing on the record except the acceptance letter from Major Hassan. It has also been pointed out earlier that the learned Single Judge reached the, finding that there was no valid contract between the appellants and the Society. It was, therefore, urged in this appeal by Mr. Ibadat Yar Khan that Major Hassan had authority to enter into contract with the appellant which was binding on the Society. In this behalf the submission was that the learned Single Judge ignored other relevant resolutions of the Society on record. In this behalf reference was first made to the Minutes of the General Meeting of the Society held on 5.4-1948 (Exh. 13-B). These Minutes contained the following three resolutions :
(1) Resolution No. 3.--11 members of the working Committee shall remain as usual and all t he powers vested in the Society have been conferred upon all those members and it was approved that the society be made a limited concern subject to the deposit of at least Rs. 2,0(10 by each of these members within 3 months and Rs. 4,000 within 6 months.
(ii) Resolution No. 4.-The Committee unanimously appointed Honourable Pir Illahi Bakhsh, Mahmoodul Hassan and Moulana Abdul Hamid Sahib Qadri as Directors and full powers were given to them.
(iii) Resolution No. 5. The Organizer has been given full powers to make payments with the consultations of Honourable Pir Illabi Bakhsh and Abdul Hamid Qadri and it was approved.
It was submitted that reading Resolutions Nos. 4 and 5 above together it is clear that the Society authorised the three gentlemen mentioned therein as Directors to exercise all powers of the Society. The next resolution referred to was passed in the Meeting held on 16-7-1948 which approved the "formation of one Managing Board for the Society who on their own responsibility should delegate all their powers regarding constructions, expenditure, receipts and payments etc. To the Organizer and they themselves shall, from. Time to time, check the accounts and supervise the work". The names of seven persons were mentioned as having been elected as members of the Managing Board including the above-mentioned three gentlemen. Finally we were referred to the Minutes of the General Meeting held on 16-9-1948 in which Resolution No. 4 reads as under;-- "All the members of the Committee and other members unanimously approved to give powers to the Organizer to carry on all the constructions as he likes as the society has full confidence in him.
The proposal to authorise the Organizer to spend the amount upto completion was approved and it was approved to complete the mosque and school etc. After taking the price of shops, etc."
On the strength of the aforesaid Resolutions on record it was urged that the Organizer (meaning thereby Major Hassan) had delegated authority to bind the Society in regard to contracts for construction of buildings. Additionally it was pointed out that the three Directors mentioned in Resolution No. 4 dated 9-4-1948 referred to above, had impliedly consented to the contract as cheques of running payment were signed by them and Major Hassan. Finally it was pointed out that in the General Rules and Directions for guidance of the contractors issued . By the Society (Exh.
42), Major Hassan was authorised to open tenders and reject anyone of them and, therefore, under the doctrine of In-door Management the Society was bound by his acts.
9. As against the above it was argued by Mr. Ilyas Ahmad, learned counsel appearing for the Society that fraud was committed by the Organizer of the Society against the Society as is reflected in the Report of the Deputy Director (Co-operation and Development), Government of Pakistan to the Registrar of Co-operative Societies, Karachi in an enquiry into the affairs of the Society dated 5-7-1950 (Exh. 23) which led to the order dated 5-7-1950 issuing show-cause notice to the Society and finally to the order of superses--sion. Counsel further submitted that there was no General Body which consisted only of six members and the appellants were all involved with Major Hassan in the commission of the fraud, with the result that the Managing Committee was in total usurpation of authority. It was, therefore, urged that the parties were in pari delicto and consequently the doctrine of in-door Management was not attracted:
10. It is also doubt true that the learned Single Judge disposed of the question relating to the binding effect of the contract only with reference to Resolution No. 7 dated 3-2-1948 and ignored the effect of other Resolutions referred to by the learned counsel for the appellant. The other Resolution do seem to authorise Major Hassan with the authority to carry on the work of construction which would include the giving of contracts. 1t is riot denied that payments were made towards the work done under the contract under the authority of the Society. We do not see, therefore, how the Society can now disown the contracts. In Pakistan Employees' Co-operative Housing Society Ltd. v. Anwar Sultana PLD 1969 Kar. 474, the facts were some--what similar in so far as the Secretary of the Society bad no power under the bye-laws to enter into contracts, but was authorised by a Resolution of the Managing Committee to supervise the development works and tire manage--ment of the affairs of the Society under the general control and guidance of the Managing Committee. The Secretary had entered into a contract on behalf of the Society which was challenged as in excess of authority and not binding on the Society. Anwarul Haq, J. (as he then was) repelling the contention made by the following observations;-- "Assuming, however, that either there was no delegation of the necessary powers in favour of Mr. Imam, or that the allegation was not valid on account of its inconsistency with any rule or bye-law of the Society, `then the transaction appears to be saved by what is known as the doctrine of `In- door Management'. Broadly and briefly stated, this doctrine is to the effect that persons contracting with a company and dealing in good faith may assume that the acts within its constitution and powers have been properly and duly performed and are not bound to enquire whether the acts of internal Management have been regularly done. We have already held that it was within the competence of the Society to grant the lease in question for an amenity plot."
Further his Lordship referred to an observation on page 430 of Halsbury's Laws of England (3rd Edition) as follows :- "A company which has appointed a Manager of its business is bound by contracts made by him in the usual course of business, although sufficient powers have not in fact been delegated to him."
In the light of the aforesaid, I have examined the Bye-Laws of the Societyand it appears to me that the objects of the Society were "to carry on the trade of building, and of buying, selling, hiring, letting - and developing land in accordance with co-operative principles etc. "Bye---Law 53 provides that the Management of the business of the Society shall be vested in the Committee which may exercise all powers and do all such acts and things as may be exercised or done by the Society. Under Bye-Law 34 clause (h) the Committee had the power to enter into all contracts for the Society and settle the terms thereof. Under. Bye-Law 58 the Committee was further authorised to delegate any of the powers given to it to a sub-committee of its own members and Bye-Law 59 provides that all acts done, inter alia, by the sub-committee shall be valid notwithstanding that it may afterwards be discovered that there was any defect in the appointment of any committeeman or committeemen or that anyone or more of them were disqualified. In the circumstances of this case it has, therefore, been sufficiently established either that Major Hassan was authorised to enter into the contract or in any case the contract is binding on the Society under the doctrine of In-door Management. Above all the fact _'D remains that the work done by the appellant was executed on, the land of the Society and the Society has owned it as its property. . It cannot, therefore, now be permitted to ,raise the pleas that the contra4t for,, the said work is not binding, on it.
11. The contention that fraud. ..Was committed by the appellants along with Major Hassan, has no force as no such case was pleaded in the written statement and no particulars of the alleged fraud were disclosed therein. I have, therefore, reached the conclusion that the contract is binding on the Society.
12. That next question to consider is whether the appellant is entitled to the amount claimed. The claim of the appellant in this appeal, is divided under two heads; (i) work of building quarters; and
(ii) other damage and loss. Under the first head the appellant claims to have done original building work on the construction of quarters described otherwise including the work done on bungalows at special rates. Another category of work alleged to have been done under this head consists of the reconstruction of the damaged quarters. Under the second head the claim of the appellant relates to damage and loss allegedly borne by him due to sudden estoppage of work by the new Managing Committee which includes certain payments made to the petty contractors, building material left ; or : destroyed at site. The appellant has also admitted certain receipts either `in cash or in the shape of material supplied by the Society the final position of the claim of the appellant is as under Rs;
(i) Construction of quarter1,02,983.00
(ii) Repair work done .51,482.00
(iii) Claim for losses and, other charges17,880.00
(iv) Cement & Iron left at site ''21 150.00 1,93,495,.00 On the receipt side the following amounts have been shown: Rs.
(i) Cash61,600.00 (ii') Cost of cement34,250.00
(iii) Cost of iron13,200.00
(iv) Cost of wood28,650.00
(v) Cost of material received through Taj Construction Company 3,230.00 1,40,930.00 Final balance claimed :52,565.00 The learned Single Judge has taken the view that the appellant had not discharged the burden to prove as to how much work was done by him and as to the value of that work, although it was conceded before him on behalf of the respondents that some work was done by the appellants. It was further observed in the judgment that the appellants, have not substantiated their claim by any measurement book required to be maintained under the terms of the contract or with any duplicate record of the bills submitted by the appellants to the Society from time to time or with books of account maintained by them. It will be pertinent to refer at this stage that after the Managing Committee was superseded efforts were made to secure the books of account and other relevant papers. Notices were given to Major Hassan to produce the relevant record and the Registrar of Co-operative Societies had even get the house of Major Hassan searched for this purpose, but no record relevant to these cases were secured.
13. On behalf of the appellant reliance was, however, placed on the evidence of Major Hassan and appellant Muhammad Ahmad and it was contended that the appellant has established his claim by substantial evidence. Major Hassan in his consolidated statement relating to all suits has stated in regard to the present appellant's case only that he got the measurement of the work done by appellant Muhammad Ahmad, but he has given no details of the work done by .Him. His evidence does not, therefore, advance the case of the appellant. The appellant in his deposition has stated as under;-- "On the basis of this contract I built 45 new quarters in Blocks Nos. 19, 20, 21 and 22 of the P. I. B.
Colony. Besides I did work for the completion of incomplete quarters in Blocks Nos. 13 to 16 .. . . . I had prepared an account of the work done by me for the Society, at the time when the work was completed and some time, when it was about completion. Some of it was after the work had come to an end. This I have produced with the plaint. I used to measure the work. And prepare the accounts. These measurements were on the basis of measurement books maintained by the Society. These measure--ments in the books of the Society were entered by the Overseer of the Society who used to do the measurement. The statements A to A/7 (which were annexed to the plaint) which I have prepared are correct and in accordance with the measurement books of the Society.
To Court.-I did not maintain any record of the work done because this was the responsibility of the Society . . . . . Work on 45 quarters in Blocks Nos. 20, 21, 22, was done by me from very beginning. At the time when my work was stopped certain things had remained to be done in certain quarters. I can give details of all such incomplete constructions. Then I had done repairs in respect of quarters in Blocks Nos. 13 to 16. I can give details of that also."
In his cross-examination the appellant admitted that he had maintained accounts of his expenditure incurred on the work, but has not produced the same. He also admitted that there was no separate written agreement regarding the repair work done by him. According to him he was only. Orally allotted a certain area by Major Hassan and he built quarters in this area according to the standard design. He admitted that there was no certificate about the number of quarters constructed by him or about the repairs to the incomplete quarters. The reason assigned by him is significant which is that the question of certificate did not arise as no quarter had been completed and no repair had been finished since the work was stopped before such completion. In the cross- examination he also admitted that he has given the various items in the annexure to the plaint regarding original work showing quantities of the work and their value, but these have not been copied from any books nor he had got the measurements from any record. These figures according to him were given from the work which stands on the site. Having regard to the evidence of the appellant as mentioned above it is difficult to hold that he has established his claim as to the quantity of work done by him. The figures mentioned in the statement of claim are admittedly based on his own statement of the completed work allegedly done by him on the site and not according to the measurements. Even as regards the preparation of these statements, the appellant has taken inconsistent stand as revealed by his admissions mentioned above. There is, therefore, no reliable evidence on which the claim of the appellant can be sustained so far as the building work on the quarters or repairs work on incomplete quarters is concerned. It will be seen that both types of work was admittedly left incomplete and yet the appellant claims payment for complete 45 quarters. As to the repair work there is nothing to support the quantity of work claimed to have been done. Learned counsel for the appellant did not rely upon the evidence of any other witness examined by the appellant.
14. On the other hand, the Society examined Jamaluddin, Overseer of the Society who was deputed by the Society after the filing of the suits to measure the work claimed to have been done by each contractor and evaluate the same according to the rates claimed by them. He prepared the estimated value of the work claimed to have been done by this appellant which is Exh. 51.
According to his estimate the total value of the work claimed and found to exist at the site was Rs.
72,368 whereas the appellant himself admits having received by way of running payments Rs.
1,40,938. It was on this basis that the learned Single Judge came to the conclusion that this appellant has received over-payment. As to the claim regarding the building materials allegedly taken over by the Society, there is also no evidence. It was admitted by the appellant in his statement that no inventory was prepared of the materials left at site and nothing has been shown that any record was prepared by the appellant himself in his accounts books regarding this material or at any rate, no such record or account has been produced. ,It was admitted by the appellant that after his work was stopped he did not write any letter to the Registrar earlier then his representation to the Chief Commissioner, Karachi on 30'-12-1952 although admittedly the work was stopped on 10-4-1951. In absence of any reliable evidence in support of this head of claim, it is not possible to allow the same on a mere oral assertion that same building materials were forcibly taken over.
15. Reference was then made to a statement made by Major Hassan in his examination in chief to Mr. Ahsanul Haq in suits filed by other appellants in which the witness referred to an account book entitled "Final Bills, relating to the construction work done by Abdullah, Contractor (Exh. A/45) which contains Bills sheets in the name of Contractor Abdullah and states item-wise the value of the material of Tai Construction Company (appellant in L. P. A. 83/68). Item No. 23 in this list refers to material left by Mahammad Ahmed valued at Rs. 6,150. Learned counsel submitted that this may be taken as the basis for allowing the claim of the present appellant in regard to materials. The reliance is obviously misplaced as it relates to the material of Taj Construction Company and on the contrary shows at Items Nos. 16 and 17 that the appellant in this case had left incomplete quarters. I am unable to understand how this evidence is helpful to the present appellant. Finally learned counsel referred to a similar Bill Book (Exh. A/44) which at page 20 refers to the work of incomplete quarters in the name of contractor Messrs Taj Construction Company and also mentions the name of Muhammad Ahmad. This document shows that the work of the value of Rs.
1,18,520 was done. Learned counsel for the appellant placed strong reliance on this document and submitted that this document proves the details of the work done. In my opinion, however, no reliance can be placed on this document. In the first place this document does not come from proper custody as it has b.-en produced by Major Hassan who had no right to retain this document after the supersession of the Committee. In the second place the document also contains erasures and was apparently prepared after the work was taken over by the newly constituted Committee as it expressly states "works stopped by the workers of the Government" and the document is signed on 25-4-1951. At any rate the document mentions in the column relating to amount of advance deducted from the bill of the 44 incomplete quarters by Muhammad Ahmad as Rs.
1,18,520, so that in the column relating to net amount payable, nothing is mentioned. No value can thus be attached to this document as well. The finding of the learned Single Judge, there--fore, seems to be unexceptionable that the appellant has failed to discharge the onus of proof to establish the quantity of work claimed to have been done by him.
16. It was then contended on behalf of the appellant that the burden of proof did not lie upon the appellant to prove the quantity of work done as the Society did not dispute the claim of the appellant specifically, but merely denied in the written statement on the plea that there was no record available with the Society to verify the claim of the appellant. It cannot be denied that after supersession the new administration was not aware of the facts relating to the affairs of the Society except with reference to the record available with it. There is nothing in the evidence to show that the record pertaining to the present contracts was handed over to the new Committee.
On the contrary Major Hassan has admitted that he was ordered to hand over the record, but he declined to do so and referred the matter to the Registrar with a request that the record may not be taken over till the final adjustment of the accounts, liabilities and assets was done: He has also admitted that a search warrant was issued through Police for securing the record after some of it was filed in connection with a suit challenging the supersession. He has also admitted that he did not handover the minute book to the Registrar or his nominee as he did not consider them fair. It is, therefore, clear that the Society was justified in saying that the record was not in their possession and, there--fore, their general denial of the claim preferred by the appellant cannot be construed as an implied admission under the rules of pleadings. In the circumstances mentioned, I also do not find force in the submission that in the absence of relevant books of account: there should be a presumption against the Society . .. ...
17. It was finally submitted do behalf of the appellant that the appellant's failure to produce evidence in -support of his claim cannot be at ground for dismissing the suit. Reliance was placed on Henry Stanley Ramsden v. S. M. Fazail Co. (PLD 1964 Kar 290) and Pak.
1. D. C. v: Aziz Qureshi (PLD 1965 Kar. 202). The first case relates to a suit for damages for breach of contract for sale of goods and has no bearing on thefarts of this case, besides it does not lay down any rule of law material in the present case. In the second case it was laid down that "if in a suit for damages the Court finds in favour of the plaintiff that there was a breach, then simply because the plaintiff had not given sufficient evidence to show certain details of damages it is not proper to grant only nominal damages." In my opinion, the rule laid down in the cited decision does not advance the case of the appellant as the cited case is distinguishable on, facts. In that case the plaintiff claimed damages for breach of agreement for distributorship of the goods manufactured by the defendants. The defendants denied their liability and pleaded that the plaintiff had failed to accept their offer to become their distributor and consequently there was no concluded contract between the parties.
The Court came to the conclusion that there was a concluded contract between the parties and that the defendants had committedbreach of contract. The plaintiff claimed damages for loss of profit and consequential damages. The contention on behalf of the defendants was that since the plaintiff bad failed to furnish evidence to show the details of damages, his suit merited dismissal or at the most he was entitled only to nominal damages. This contention was repelled by following the dictum laid down by the Privy Council in A. V Joseph v. R. Shew Bux (AIR 1981 PC 149to the effect already mentioned above. It was in this context that the following observation was made at page 219 of the report: "In these circumstances, when we are clear that the- `respondent, was entitled to something, but the evidence on both sides is unsatisfactory '--- - as to what was the amount which the respondent had lost in consequence of the revocation of the contract. We are left with no choice -- but to ascertain in the best manner we can what the damages were."
In the present -case, however, the facts are quite different. The appellant had done some work and received running payments. As already held by me there is no proof of the quantity of work done by him and, therefore, it . Is not possible, to give a finding that the society committed, breach of contract by not paying for the work done by the appellant. I also find that for the construction of complete quarters the appellant claims Hs. 1,02,985 and for the repair work allegedly done by him he claims Rs. 51,482. He admits having received a total sum of Rs. 1,40,930, therefore, the appellant's claim for construction of complete quarters is more than satisfied. As for repair work, admittedly there is no contract in writing and there is no proof what work was done under this category. If this item is excluded the payment received by the appellant would be roughly equal to his claim in suit.
There is, therefore, no substance in this appeal.
(ii) L. P. A. No. 82/1968
18. In this case Mr. Habibur Raman, learned counsel for the appellant adopted the arguments of Mr. Lbadat Yar Khan as to the authority of Major Hassan to enter into a binding contract with the appellant on behalf of the Society. I have already given reasons for holding that Major Hassan was authorised to enter into contracts on behalf of the Society. In this case the contract was awarded to the appellant on 26-2-1949 after the society was registered, on the same terms and conditions as in the previous case. The clam of the appellant in this case is for a lump sum amount of Rs.
1,01,327-4-0, but in the particulars given in the annexures to the plaint the claim is described as under :---- Rs.
(i) Construction work item-wise of 48 quarters 1,65,417-0-0
(ii) Amount due on account of excessive charges at higher rate towards cost of cement, iron and water charge3 35,740-0-0
(iii) Losses on account of misappropriation of building materials left at site . 5,700-0-0
(iv) Centring materials lost 12,10-0-0
(v) Partial work done on 16 qtrs 17,500-0-0
(vi) Digging for pipe line 13,60-0-0
(vii) Amount for miscellaneous work to complete the work left by contractor Muhammad Khan58,525-0-0 Grand total for work done3,48,892-0-0 Receipts
(i) Cost of cement60,00-0-0
(ii) Cost of wood--.35,00.0-0
(iii) Cost of iron15 00-0-0
(iv) Cash78,00-0-0 1,88,00-0-0 Balance claimed:1,61,892-0-0 In his deposition the appellant has stated that initially he was awarded the contract for building 20 quarters in partnership with one Muhammad Khan, out of which 96 quarters were completed and the work on the remaining 104 quarters remained incomplete, when he brakeup the partnership upon as understanding that he would be paid Rs. 58,00 at the time of final bill. It was after this that he claims to have been awarded further work of construction of 50 quarters, 2 bungalows and the digging work of a channel.
As to the quantity of work he has only stated in his deposition that the particulars given in the annexures were correct which were prepared on the basis of measurements taken by the Overseers. He admits that out of 50 quarters he had completed 36 and the remaining 14 has been left incomplete. As to the work on the bungalows he states that the same had reached the roof level when he was dispossessed. So far as his claim for Rs. 58,00, for the work allegedly done by him in partnership with Muhammad Khan, there is nothing in the evidence that the Society had promised to pay him this amount. In his own evidence he says that Muhammad Khan had agreed that the appellant would be entitled to this amount. He also admits that Muhammad Khan used to receive cheques directly in respect of the work done by them in partnership. The claim of the appellant as to this amount is, therefore, highly doubtful. As to the work subsequently awarded to him he admits that there was no tender in respect thereof. He also admits that he had maintained accounts through his Munshis which have not been produced in evidence. He further admits that he had received material worth Rs. 1,10,00 from the Society in addition to cash payment of Rs. 78,00.
Further it is admitted by him that before filing the suit he had claimed from the Society on the basis of a statement of Account (Exh. 15) only a sum of Rs. 1,31,545-8-0 and admitted receipt of an amount of Rs. 2,31,80 received by cheque from the Society in addition to the material provided. He also admits that he was not given a written order for digging of a channel nor any rate had been fixed for this work. Such type of evidence, in my opinion, hardly deserves any trust.
19. The evidence of appellant's witness Rashid Ahmad to which reference was made 'does not advance his case. He is admittedly an interested witness being the nephew of one Ahmed Shafi who had advanced loan to the appellant for investing in the contract. Additionally his evidence as to the quantity of work done is also contrary to the appellant's version. The app-.Pant claims to have in all done work on 250 quarters whereas this witness stated that he had worked on 150 quarters. His other witness Abdul Ghafoor who was working as Overseer in the employment of the Society at the relevant time has put the number of quarters on which work was done by the appellant at 48 and has admitted that this statement is not based on any record. No reliance was placed on the other witnesses produced by the appellant in his support.
20. On the other hand, the respondent-Society examined Jamaluddin who verified the claim of this appellant on the site in accordance with the statement of his claim annexed to the plaint and vide Exh. 22 evaluated the work claimed to have been done by him at Rs. 1,26,524. As already pointed out, the learned Single Judge accepted the evidence of this witness and held that the appellant in this appeal had received overpayment in view of his admission with regard to the payments received viz. Rs. 1,88,00. Learned counsel for the appellant in this appeal criticized the evidence of Jamaluddin and contended that it is not reliable as the measurements were taken by this witness in absence of the appellant after a long time. But this is no reason for rejecting his evidence. In the absence of the record for which the Society cannot be held responsible as already discussed, the only alternative for the society was to have physical check up of the work claimed to have been done by the appellants. The evidence of Jamaluddin was 'for the purposes of defence and Society was, therefore, not under any obligation to have the measurements taken in the presence of the appellant.
21. Finally on behalf of this appellant also reliance was placed on the Bill Book, which I have already held to be an unreliable document.
22. For the foregoing reason, I agree with the finding of the learned Single Judge that this appellant has also failed to establish his claim and, therefore, this appeal also merits dismissal.
(iii) L. P. A. No. 83 of 1968
23. This appeal arises out of suit filed by partnership firm known as Messrs Taj Construction Company. The total claim of this appellant was for Rs. 10,57,141 details of which have been given in annexures to the plaint. The learned Single Judge dismissed the suit of the appellant on two grounds. Firstly that the appellants have failed to establish their claim on evidence, and secondly that the present appellants have no locus standi to file the suit. Since I have come to the conclusion that the legal ground was rightly decided and was sufficient to dispose of the suit, it is not necessary to consider the merits of this case. The issue as framed by the Court was in the following terms. "the present firm of the plaintiffs locus standi to bring the suit and is the suit as framed maintainable?
The facts on record are as disclosed by the appellant's witness Muhammad Khan, who is one of the partners of the appellant firm that the firm of Taj Construction Company was first constituted on 10-12-1947 with three part--ners namely Syed Mazoomul Hassan, Syed Ghulam Ali and Syed Zabirul Hassan. This firm was registered on 8-1-1952 vide the Extract from the Register of firm (Exh. CW. 7).
The relevant particulars mentioned in this document are as under;- Date of Entry 6-1-1952 Principal place .7, Lalchand Hasumal Road, Parsi Colony, Karachi.
DurationPartnership at will In the column relating to partners and their addresses the names and addresses of the three partners as mentioned above have been given and it is stated that all joined on 10-12-1947. P. W.
Muhammad Khan then stated as follows;-- "On 5th of March, 1954 a firm . Was registered under the names of Taj Construction Company and it was in this firm that there were seven partners as mentioned by me. I am one of those seven partners. I see Exhs. C. W. 7 and C. W. 8 which are Extracts from the Register of Firms which give particulars of registration of the first firm and the second firm. I have filed the suit on behalf of new firm which was registered in 1954 . . . . . . It is correct that the partners of this firm were the relatives and friends of Major Hassan. The first firm was formed on 12-10-1947 and registered on 6-1-1952.
The second firm was formed on 10-2-1952 and registered on 5-3-1954."
The contract in this case was awarded on 2-3-1948 vide Exh.
15. The learned Single Judge upon the aforesaid admitted facts, therefore, held that there exist two separate and independent firms registered under the same name and style but under different registration numbers, It was admitted before the learned Single Judge on behalf of the appellant that the contract was taken on by the first firm as indeed appears from the evidence and, therefore, he has held that the second firm which had brought the suit had no locus standi to file the same.
24. It was contended by Mr. S. M. Saeed, learned counsel for the appellant in this appeal that the suit has been brought by the same firm which was given the contract by the Society as originally constituted, but later on four other persons were admitted as members to the existing firm on 10-2- 1952. Support was sought from the fact that the registration certificate of the second firm Exh. C. W.
8 mentions the names of the original three partners among the seven partners, shown in this certificate. It was, therefore, urged that the suit has been brought by the same partnership firm who had entered into the contract with the Society as reconstituted in 1952. Reliance was also placed on the preparation that the firm name under which the partnership carries on their business is merely the collective name of the individual partners constituting the same. I am, however, unable to accept this argument. In the first place no instrument or other documentary evidence has been produced to establish that the four new partners were introduced in the existing firm. Secondly the submission is contrary to the evidence on record. It will be seen that Chapter VII of the Partnership Act, 1932 provides for registration of firm and these provisions have been made in the interest of the trading public. Although it is true that the Act does not in so many words brake registra--tion of firms compulsory nor does it impose penalties such as are imposed under the English law; yet the effect of the rules relating to the consequences G of non-registration is such as will practically necessitate the registration of a firm at one time or other. The Act imposes certain disabilities on partners seeking to enforce certain claims in the civil Courts by section 69 _ which lays down that any firm which is not registered will be unable to enforce its claims against third parties in the civil Courts; and any partner who is not registered will be unable to enforce his claim against either third parties or against his fellow partners except to and for dissolution of the firm. Chapter VII contains elaborate provisions in its sections for registration of firms, recording of alterations of the firm name and pr4icipal place of business, opening and closing of branches and recording of changes in and dissolution of a firm. . Section 68 provides as under;-- "(1) Any statement, intimation or notice recorded or noted in the Register of firms shall, as against any person by whom or on whose behalf such statement, intimation or notice was signed, be conclusive proof of any fact therein stated.
(2) A certified copy of an entry relating to a firm in the Register of firms may be produced in proof of the fact of the registration of such firm, and of the contents of any statement, intimation of notice recorded or noted therein."
The plain reading of the above section clearly shows that the entries in the Register are conclusive evidence of the facts mentioned therein and in any case no evidence has been led to rebut the presumption thus arising. Now section 63 provided for giving of notice to the Registrar in case of change is the constitution of an existing firm on the register of firms. It, there--fore, follows that in case of any change in the constitution of the firm by introduction of new partners, the law does not contemplate a fresh registra--tion under section 58 of the said Act, but only a notice for recording the changes occurring in such existing firm. Besides- it is conceivable that the partners in one firm may constitute a separate and distinct partnership firm with other persons in which case such partnership would obviously be a separate partnership firm. In the present case the second partnership was registered under different numbers vide Exh. C. W. 6 which clearly mentions that all the seven partners joined the firm on 10-2-1952 and the principal place of the business shown is 8; Pir Illahi Bakhsh Colony No. 2, Marton Road, Karachi. Except for the fact that three of the partners' names and the firm name are common in the two certificates of registra--tion the rest of the entries are totally distinct. If all the partners of the new firm joined on 10-2-1.952, which fact has to be presumed to be correct, then clearly the second partnership was a distinct partnership firm. This is also consistent with the evidence of the P. W. Muhammad Khan as reproduced above. The finding arrived at by the learned Single Judge is, therefore, not liable to be upset. Additionally admittedly P. W. Muhammad Khan was not a partner of the firm at the time the contract was entered into between the parties which is also clear from the certificate of registra--tion (Exh. C. W.
7). Therefore, there was no privity of contract between him and the society. The present suit has been brought in the name of the partnership firm by the said Muhammad Khan as managing partners. He was, therefore, not a registered partner in the original firm in whose name the suit has been brought. Subsection (1) of section 69, Partnership .Act lays down a legal bar on such person to bring a suit whose name is now shown as partner in such registered firm. The present appellant had, therefore, clearly no locus standi to bring the suit. I have, therefore, come to the conclusion that the suit was not maintainable and has rightly been dismissed by the learned Single Judge.
(iv) L. P. A. No. 84/1968
25. Mr. Munawar Abbas, learned counsel appearing for the appellant in this appeal adopted the arguments of Mr. Ibadat Yar Khan as to the binding effect of the contract on the Society entered into by Major Hassan on its behalf which I have already considered and held in para. 10 that the contract is binding on the Society. It is, therefore, not necessary to consider, the additional submissions of Mr. Munawar Abbas on the same point on the basis of estoppel under section 115 of the Evidence Act and the liability of the Society on the basis of sections 182, 186 and 187 of the Contract Act dealing with the authority of an agent or the effect of sections 196 and 197 of the Contract Act on the plea of ratification. Therefore, the only question remaining to be considered is as to whether the appellant is entitled to the amount claimed by him. The claim of the appellant is for a sum of Rs. 7,44,512 which also consist of payment due on account of work done and the material taken over, particulars of which have been mentioned in Annexures `A' to `A/5'. According to the evidence of plaintiff Shaikh Taseer Ahmed he had constructed about 425 quarters out of which 30 or 40 quarters were incomplete. He also constructed a- Madressa as well as did the foundation work of three bungalows. He admits that the work done by him was periodically checked by the Over--seer of the Society and payments used to be made on the measurements.
However, he says that no final measurement of the work done by him was taken. In his cross- examination he admits that he maintained the register of labour employed by him as well as a stock register and he also maintained accounts or expense and payments made in connection with this work. He has, however, alleged that these accounts were kept in the storage places from where he was not able to remove them. Being pressed in the cross- examination he stated that he had written to the Registrar for the return of these papers, but admitted that he had no copy of the communication nor did he obtain any acknowledgment of the same. According to him such correspondence was carried on with the Society but copies of that correspondence were also not produced. The statements attached to the plaint regarding the quantity of work done by him.
According to the witness were prepared on the basis of the notice which he had but even these alleged notes were not produced. He has further stated that the Society had given him the building plans for the construction of the quarters but even these were not available and admittedly no written orders for the construction of the Madressa or the foundation work were given. The other witness examined on behalf of the appellant was Abdul Ghafoor who was employed as an Overseer with the Society from 1948 until the end of 1950. He has clearly admitted that he did not remember how many of the quarters were completed and how many remained incomplete. He was even unable to say approximately how much percentage of work was done by the appellant on the quarters. In his cross-examination the witness stated that Major Hassan used to prepare the bills of the work according to the measurements which were recorded by him on lose sheets of paper. But he had no idea whether these measurements were subsequently recorded by the Society in any book or register. This is all the evidence that has come from the side of the appellant.
On the very face of it this evidence is vague and un-specific and, therefore, cannot be made the basis for determin--ing the quantum of work done by the appellant. No authority can attach to the statements of claim annexed to the "plaint as these are not original documents and have accordingly no evidentiary value. I agree with the conclusion arrived at by the learned Single Judge that the appellant has failed to discharge the onus of proof regarding his claim by any reliable or sufficient evidence. The only other piece of evidence is the statement of Major Hassan to the effect that he had checked the work done by all the con--tractors including the present appellant and had prepared "a rough estimated bill" and entered the bill books after verifying the books. Exh. A-47 is the bill book relating to the alleged work done by the present appellant with regard to school and quarters. I have perused this document and on each paper I find a note in red ink: "This cancels all previous bills on previous rates under the final decision of the Society". These entries are on a printed Book with many erasures and with many columns left blank and without the signature of any officer of the Society including Major Hassan himself. There is no mention of the advances made by the appellant although there is a column to that effect. Apparently this document was subsequently prepared and cannot be held to be a book kept in regular course of business. The last two pages have been signed and dated 6-5-1951. Apparently, therefore, this document was prepared after the Managing Committee of the Society Was superseded and the works were taken over on 10-4-1951 (vide para. 10 of the plaint). No reliance can, therefore, be placed upon this document.
26. On the other hand, the Society produced Jamaluddin, who was deputed to verify the claim of the present appellant with reference to the work at site during the pendency of the suit. He found that the total work done by the appellant was of the value of Rs. 13,45,254 where as he has been paid an amount of Rs. 17.33,033. As already held by me in connection with other appeals I would hold that the details given by witness Jamaluddin must be relied upon. The learned counsel himself agreed that the quantum of work verified by Jamaluddin may be taken as correct as the quarters mentioned by him in the statements (Exhs. 17 to Exh. 17-D) and the work mentioned by him in Exh. 18 to Exh. 18-E has not been claimed by any other contractor. Therefore, the Society's own evidence proves the quantum of work done by the present appellant. He, however, pointed out errors in the calculation of the amounts in Exh.
17. It was further contended that Jamaluddin evaluated the work of school building at Rs. 40,000 although in their Resolution dated 13-2-1950 (Exh. 4-1/4) the Society had itself admitted that an amount of Rs. 80,000 was spent on the school building. It appears that there are mistakes in the calculations made by Jamaluddin in working out the valuation of the work found by him to be existing at the site. In view of this it will be necessary to properly calculate the amounts in order to determine the actual valuation of the quantum of work done by the present appellant according to the rates mentioned by witness Jamaluddin. For this purpose it will be necessary to appoint a Commissioner to examine and adjust the accounts prepared by witness Jamaluddin.
(v) L. P. A. No. 85 of 1968
27. The appellant in this case submitted Tender (Exh. A/5) which was accepted on 3-2-1948. The claim of this appellant is Rs. 7,40,159 on account of the work done and material left at the site, particulars of which have been mentioned in Annexures A to A/C of the plaint. The evidence in this case is more or less of the same nature as in other cases. I have already held that the contract is binding on the Society and the only ques--tion, therefore, to consider in this case is whether the appellant has established his claim as to the quantum of the work allegedly done by him and whether his materials were taken over by the Society. In his deposition the appellant has stated that he was awarded the work of building 400 quarters initially -but later on the number was increased to 450 quarters. He was also required to build a mosque. On his own admission the appellant stopped the work in 1949 as according to him water and materials which were undertaken to be supplied by the Society were not supplied. He alleged that rates were revised on 5-10-1950 and then he resumed the work. Out of the work allocated to him he constructed 400 quarters and 50 remained incomplete. He had, however, completed the mosque but only the plastering work had remained. According to him the construction of the mosque was given to him at the rate of Rs. 6 per square foot. He has, however, admitted that be was not given any writing with regard to the revision of rates. Mr. S. M. Saeed, learned counsel appearing for the appellant very fairly conceded that there is no specific evidence adduced by the appellant as to the revision of rates. He has further admitted that he had received a total payment of Rs. 18,87,857. In his cross- examination the appellant had admitted that he made the claim for the first time for work done and the price of materials in the year 1954 when he served a legal notice before filing the suit.
Further he has admitted that he was not given any work order of other written docu--ment about the number of quarters to be constructed and has, stated that he was orally asked to construct 200 quarters. He has even admitted that he never submitted any bill to the Society about his work.
He maintained no measurement of work done by him and claim that he measured the work for the first time before filing the suit. As regards the material he has admitted that no blue print of the mosque was given to him and even the estimate was given to him orally. No Schedule of rate was given to him in respect of the construction of the mosque nor was any measurement ever taken of the alleged work on the mosque. He also admitted that the claim for the mosque was made without reference to measurement. Finally the appellant admitted that he and Muhammad Ahmad another contractor are both claiming payment in respect of a few quarters. The next witness of the appellant is Abdul Ghafoor who has stated that the mosque and some quarters out of 450 were completed by the appellant and some left incomplete but he could not mention the details. He has stated that there were no measurement books. He do that the measurement books (Exhs. 17 and 18) were prepared during the course of the work. This is all the material evidence produced by appellant in support of his claim. The evidence is vague and furnish no basis for determining the quantum of work done by the appellant. As against this, as in other cases, the Society produced the evidence of Overseer Jamaluddin who was deputed to assess the work at site according to the particulars given by the appellant in his plaint. According to this witness the estimated cost of the total construction of the appellant come to Rs. 12,59,892, whereas he has admittedly received Rs.
16,27,657. He has also given the details of the incomplete work found at the site. There is no reason to disbelieve this witness. I, therefore, agree with the learned Single Judge that the appellant has failed to discharge the burden of proof regarding his claim. There is also no evidence that any materials charged in the account of the appellant were removed by the Society forcibly.
28. For the foregoing reasons. I find no merits in L. P. As. Nos. 164/64, 82/68, 83/68 and 85/68. All these appeals are, therefore, dismissed with costs. L. P. A. No. 84/68 is, however, allowed partly and the judgment of the learned Single Judge relating to Suit No. 403/54, as against the Society is set aside. A preliminary decree shall be passed in this suit against the Society for examination and adjustment of the account prepared by witness Jamaluddin regarding the work done by the plaintiff in this suit. The Official Assignee shall be appointed Commissioner who will take the quantum of work mentioned by witness Jamaluddin in Exhs. 17 to 17-D and Exhs. 18 to 18-G as correct and work out the details of the costs of construction according to the rates given in these Exhibits and Exhs. 15-A, 15-B, 16-A and 16-B. He will then deduct the admittedly received payments in order to determine whether any balance remains still outstanding. The Commissioner shall submit his report within three months and the parties shall be entitled to be heard according to the rules before the report is submitted. All the appeals are disposed of as above.
SAJJAD ALI SHAH.-I agree.