Nazeer Ahmed Langove, J.--Instant appeal is directed against the judgment/decree dated 19'
March, 2012 passed by learned Civil Judge-IL Quetta whereby the suit filed by the appellants was dismissed.
2. Brief facts of the case are that the Government of Balochistan advertised the tender in daily newspapers in respect of construction of 10 km road from Sharug to Murdar via Gumbati. The Plaintiff/Appellant No, 1 also participated in the process and succeeded to obtain the contract.
After observing .Codal formalities he along with the Plaintiff No 2 started construction of road with mutual consent as co-sharers. It was further stated that due to worst law and order situation in the area, insurgents fired rockets and missiles on the labours and machinery of the plaintiffs/appellants and caused them heavy loss besides kidnapping workers which finally resulted in stoppage of the work. It was further stated that the Government of Balochistan had assured the Plaintiff/Appellant No, 1 that in case of any loss former will be responsible to pay the damages, as such the plaintiffs/appellants approached the Defendant/Respondent No, 3 for redressel of their grievances by submitting various applications but in vain, hence the instant suit with the prayer as under: i. A decree may kindly be passed in favour of plaintiffs for Rs. 95000001- (9.5 Million Rupees) for machinery which was crashed by the militants by firing rockets. ii. A decree may kindly be passed in favour of plaintiffs for Rs. 3000000/- (3 Million Rupees) which was paid by plaintiffs to the abductors who had abducted/kidnapped the workers of plaintiffs and plaintiffs had paid above ransom for the release of above workers to the insurgents. iii. A decree may kindly be passed in favour of plaintiffs for Rs. 1600000/- (1.6 Million Rupees) whereas three tractors of plaintiffs had been demolished in the attack delinquents. iv. That the interest (a) 30% mark up on original amount of 14.1 Million may also be passed in favour of plaintiffs and against the defendants. v. Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded in favour of plaintiffs and against the defendants.
3. After service of notices, the defendants/respondents filed their written statements wherein they raised certain legal objections in respect of maintainability of the suit and contested the same on merits as well.
4. After framing issues and exhausting their respective sides by the parties, the learned trial. Court after hearing them through counsel and evaluating evidence did not agree with the claim of the plaintiffs/appellants, as such dismissed the suit filed by the plaintiffs, hence instant appeal.
5. The appellants submitted that the judgment/decree impugned passed by the learned trial Court is contrary to the law, facts and principles of natural justice because the appellants have established their claim at the strength of oral and documentary evidence but the trial Court without application of judicial mind dismissed the suit. They added that in their written statements despite admission of appellants' claim by the defendants the trial Court dismissed the suit in clear violation of Order XII Rule 6, CPC. The learned trial Court erred in law by holding that the plaintiffs/ appellants were unable to prove their case against the defendants/ respondents. They maintained that the judgment/decree impugned is the result of misreading and non-reading of evidence, particularly when the evidence furnished by the defendants/respondents was in conflict with their written statement but this important aspect of the case was also not attended to by the learned trial Court. They criticized the judgment by submitting that while discussing issues the learned trial Court travelled beyond the proceedings which definitely was unwarranted under the law on the basis whereof the judgment/decree impugned are liable to be set aside and suit filed by the plaintiffs/appellants deserves to be decreed as prayed for.
6. It may riot be irrelevant to mention here that the instant appeal is pending before this. Court for the last more than five years be without any progress mainly on the part of the appellants who apparently are adopting delaying tactics to further linger on the matter on one pretext or the other.
Above all neither the appellants themselves nor their counsel is appearing before the Court for last one year without any justifiable excuse/reason, therefore, in such circumstances we have left with no other option except to decide the matter on merits after hearing the learned Additional AG present in the Court.
The learned Additional AG strenuously opposed the appeal by submitting that the judgment/decree impugned passed by the learned trial Court is based on correct appreciation of evidence. No illegality, irregularity, misreading, non-reading of evidence, omission or inherent defect could be pointed out in the judgment impugned warranting interference by this Court. He opposed the contention raised by the appellants by submitting that very suit filed by the plaintiffs/ appellants and the claim contained therein was not maintainable, because the same is based on clear violation of terms and conditions agreed upon between the parties (duly accepted by the appellants/plaintiffs) prior to awarding contract. He added that suit filed by the plaintiffs being frivolous and scandalous in nature should have been dismissed with heavy costs. He requested for dismissal of suit.
7. We have carefully perused memo. of appeal as well as the record and considered the arguments advanced by the learned AAG. The record indicates that the plaintiffs/appellants after observing procedural formalities succeeded to get the contract in respect of construction of Road from Sharug' to Gambati section' measuring total 10 km, however, the task could not be accomplished, as per contention of the plaintiffs/appellants due to worst law and order situation in the area owing to which even they suffered a lot in terms of money; mental torture and physical violence at the hands of militants. Be that as it may, in our considered view it doesn't mean to depart from the terms and conditions of the contract agreed upon between the parties. Law and order situation, if any, could have been handled with the help of local Administration but the appellants at their own instead of resorting to legal course chose an easy and shortcut way to sue the respondents with another unjustified demand that in lieu thereof they may be accommodated by awarding another contract in the adjacent peaceful area. Such a demand itself was not only beyond the scope of contract awarded to the appellants but outside of the premises of law.
8. Adverting to the merits of the case it is manifest from the record that the plaintiffs/appellants failed to establish their claim through reliable and confidence inspiring evidence either oral or documentary. PW .1 and PW .2 who alleged that the appellants were assured that they and their labor will be provided support but both the witnesses failed to specify the names of those officers who had given assurance and that the giver of assurance had what authority and that whether the appellants were assured that the support will be in the shape of money, which too in millions. Had there any such assurance why the same was not incorporated (in writing) in black and white.
Similarly in their testimony the witnesses produced by the plaintiffs failed to name the persons who allegedly were abducted by the culprits with demand of ransom amount or that regarding the abduction whether the appellants lodged any FIR or otherwise. So much so the appellants failed to produce the persons who were allegedly abducted, before the Court for recording their statements confirming that they were abducted and eventually released after payment of ransom. All the above lacunas leads us to irresistible and definite conclusion that the plaintiffs/appellants did not approach the Court with clean hands and have suppressed material facts in respect of award of actual contract to the Appellant/Plaintiff No, 1, what happened when the Defendant/Respondents No, 2 appeared before the Court and submitted his written statement he raised objection that the very suit filed by the plaintiff is not maintainable because he is not the actual person entrusted the task/contract, on which he filed amended suit by impleading Abdul Rahim/Appellant No, 1 as real contract or meaning thereby that neither the plaintiffs approached the Court with clean hands nor brought any document/agreement for shifting the contract or part thereof to the appellant No, 1 and most importantly under what authority?.
9. Admittedly the plaintiffs/ appellants were legally bound to prove their claim through reliable, unimpeachable and tangible oral and documentary evidence but they miserably failed to do so as such are not entitled for the relief claimed for. Perusal of the record shows, quite clearly and unmistakably that the judgment/decree impugned passed by the learned trial Court is based on proper appreciation of evidence. Even on reappraisal of evidence we could not form a contrary view to that of the trial Court, hence is not open to any exception.
In view aforementioned facts and circumstances of the case appeal filed by the appellants is hereby dismissed with no order as to costs. Decree sheet be drawn.