FAHIM AHMED SIDDIQUI, J.----The appellant has filed a civil Suit before this Court bearing Suit No. 1983/1998 against the respondents, which was dism issed by the learned Single Judge through judgment dated 24-11-2017 and decree dated 27-01-2018. Through the instant appeal, the appellant has challenged the said judgment and decree by raising multifarious grounds.
2. The laconic history of the appellant's case was that he entered into an agreem ent with. Messrs Frontier Works Organisation (hereinafter referred to as TWO' and represented by respondents Nos. 1 and 2) for supplying certain construction machineries in respect of a construction project known as 'Ratoder o-Ghauspur Road Project'. The second project was allocated to FWO by National Highway Authority , Pakistan (hereinafter referred to as 'NHA' ).
The appellant provided the said machineries on an agreed monthly rent and allegedly FWO retained the said construction machineries and employed the same for the aforementioned project. It is alleged by the appellant that in respect of payment of rent, out of the total amount of Rs. 81,70,599/-, an amount of Rs. 41,53,529.79 was still due and as, alleged by the appellant the said amount was calculated by FWO but they never provided details of the same to the appellant.
3. The appellant (plaintif f) in his plaint before the trial Court described the particulars of his case and sought relief of the payment of amount still due i.e. Rs. 41,53,529.79. He also raised multifarious claims of millions of rupees in respect of damages, anticipatory and aspirant profits with interest. The answering respondents (defendants) in their Written Statement questioned the averments of the plaint and denied the entitleme nt of the appellant for any relief.
On the basis of the pleadings, the trial Court framed as many as seven issues and the parties led their evidence to discharge their respective onuses regarding those issues. After evaluating the evidence on the touchstone of issues, the learned Single Judge dismissed the Suit of the plaintif f through impugned judgment and decree.
4. We have heard the arguments advanced and consulted the relevant record in the light of valued submissions of the parties as well as the citations relied upon during the course of arguments.
5. Dr. Raana Khan, learned counsel for the appellant in her arguments has assailed the impugned judgment from different corners. She submits that the learned Single Judge in the impugned judgment wrongly concluded that the documents were not filed within seven days. According to her, the learned Single Judge could not consider that the time was already got extended by filing a CMA. She submits that the learned Single Judge also erred in holding that only seven documents were filed with the plaint. She further submits that the learned Single Judge also misled, while holding that no bill was presented from 1995 to 1998. She draws attention towards an application, filed by the appellant, in the Suit under Order XIII Rule 2 read with Sections 148 and 151 of the Code of Civil' Procedure, 1908 (hereinafter referred to as 'C.P.C.') being CMA No. 4923/2003 (page No. 607). She submits that the said application was allowed vide order dated 22-09-2003, which means that not only the delay was condoned but the production of additional documents also was allowed. She emphasizes that in these circumstan ces it could not be said that the documents were not filed within the time and that there were only seven documents filed with the plaint. According to her, the application for additional evidence was allowed, as such numerous documents were produced during evidence and the same should be considered by the learned Single Judge, while pronouncing the judgment. It is also the contention of the learned counsel for the appellant that on the vital points of appellant's evidence, no question was put during cross-examination, as such the same remained unchallenged and unrebutted, which amounts to acknowledge them as true, as per the provision of Articles 133 and 134 of the Qanoon-e-Shahadat.
She submits that as against the huge amount of Rs.41,53,529.79, the respondents offered an amount of Rs.6,35,783.24, out of which some amount was paid, while the appellant did not receive the remaining amount, as the respondents were demanding a No Dues Certificate, which he could not be given without satisfying his claim. In the end, she seeks a verdict in favour of the appellant by allowing the appeal. In support of her contentions, she relied upon the cases reported as Chief Engineer , Irrigation Department N. W. F. P and 2 others v. Mazhar Hussain and 2 others (PLD 2004 Supreme Court 682), Faisal Afzal Sheikh v. Additional District Judge, Lahore (PLD 2004 Lahore 668), Javed Khan v. Ghulam Yasin (2004 CLC 1271 ), and Sakhi Zaman v. Mst.
Shazia and 3 others (PLD 2004 Peshawar 104).
6. Mr. Barkat Ali Metlo, learned counsel for respondents Nos. 1 and 2 opens his arguments by supporting the impugned judgment. He submits that there is no misreading and non-reading Of the available evidence in the judgment pronounced by the learned Single Judge. He submits that the appellan t has never placed his claim in writing regarding the amount claimed by him in the prayer clause of the plaint. He points out that none of the referred letters or legal notice indicated the amount of Rs.41,53,529.79 and the said amount abruptly appeared in the plaint filed by the appellant. He submits that the plants and machineries, provid ed by the appellant, were faulty and their operators were not trained, as such after a few days of hiring the same, the said plants and machineries were returned and the amount for the said period was calculated with the assistance of the appellant and some amount was paid, while the appellant himself had not come forward to receive the remaining amount. He submits that the appellant has already taken Rs.3,00,000/-, out of Rs.6,35,783.24 and the respondents were ready to give the remaining amount to the appellant. He submits that the appellant himself has admitted Rs.6,35,783.24 in his legal notice and because of such admission, the appellant has no case in his favour . According to him, the appellant had to file-documents within seven days after framing of issues in which he remained failed, as such only those documents, which were mentioned and annexed with the plaint, could only be considered as admissible. He submits that the referred CMA was filed for condonation of delay and not for the production of additional evidence, as the said application did not fulfill the requirements under Order XIII, Rule 2 of C.P.C. After referring to some portions of the judgment, he contends that the learned Single Judge has rightly observed that from 1995 to 1998, no written claim regarding the amount has been made by the appellant. He submits that even the amount of Rs.6,35,783.24 was not justifiable and the same was at a higher side but as per the terms and conditions of the agreement, the matter was referred to the Commander 492 Engineering Group, being the final authority . He submits that Commander .492 Engineering Group has given an opportunity of audience to the appellant and he took a sympathetic view about him and approved an amount of Rs.6,35,783.24 in respect of the machineries provided by him, which were already found faulty .
7. Mr. Khilji Bilal, learned Assistant Attorney General, after adopting the arguments of learned counsel for the respondents Nos. 1 & 2, prefers some additional submissions. According to him, it is evident from the very contents of CMA No. 4923/2003 (page No. 607) that the said application was filed for condo nation of delay . He submits that although the heading of the application indicated that the same was filed under Order XIII, Rule 2 read with Sections 151 and 152, C.P.C. but the same was not drafted as an application for permission to produce additional evidence. He points out that the learned Single Judge has only condoned delay for filing of documents within the stipulated period but no additional evidence was said to be allowed. According to him, the appellant's case could only rest upon those documents, which were annexed with the plaint and the rest of the documents should be ignored being inadmissible.
8. In rebuttal, Dr. Rana Khan, learned counsel for the appellant contends that the relevant documents were produced after getting permission from the Court and the learned Single Judge has relied upon some of those documents, hence they could not be ignored in totality: According to her, the majority of those_ documents were not considered by the learned Single Judge, which is contrary to the set principle s of jurisprudence. She submits that some of those documents were also filed by the respondents in their Counter Affidavit, which again amounts to ratification of those documents by the respondents; as such they should be given due and proper weight. She further submits that the learned Single Judge also made h wrong assumption by holding that no claim was made by the appellant from 1995 to 1998. In this respect, she relied upon the legal notices served upon the respondents on behalf of the appellant especially legal notice dated 16-05-1998 and after going through its different paragraphs, she submits that all those correspondences have been described within the said legal notice, which fortifies the claim of the appellant. She further submits that the appellant has tried to get the details of the actual working hours of those machineries provided by the appellant, so that he may calculate the actual bill or outstanding amount but the respondent did not cooperate in this respect. She submits that it was not the responsibility of the appellant to make a record of the actual quantum of time for utilization of machineries but such record ought to be maintained by the respondents and to provide the same to the appellant for preparation of bills in which they remained failed.
She further submits that the respondents have levelled false allegation that the plants and machineries were faulty and the operators/drivers were inexperienced. In this respect, she contends that the respondents have never intimated the appellant with such compla int; as such the same could not be relied upon. She submits that the witness of the respondent remained failed to rebut the case of the appellant in his deposition, while non-confronting of the important documentary evidence produced by the appellant in cross-exami nation; therefore, it can be said that the appellant succeeded in establishing his case. According to her, the appellant has hired the plants and machineries from their owners and provid ed for the project, who has to spend the amount mentioned in the plaint for payment of rentals for those plants and machineries.
9. When the entire facts of the case are perceived in the light of valued submissions, several aspects of the case require deliberation. It has been forcefully argued on behalf of by respondents that the documents produced by the appellant during the trial could not be relied upon as the same were alien to the list of the documents annexed with the plaint. So far as the admissibility of those documents is concerned, it is an admitted position that at the time of production of those documents no objection was raised by the respondents, and this fact was also observed by the learned Single Judge in the impugned judgment. Conversely , the opinion of the learned counsel for the appellant is that the said documents were produced during the trial with the leave of the Court, as an application filed by the appellant (plaintif f) filed under Order XIII, Rule 2 of C.P.C. (C.M.A. No. 4923/2003) was allowed. She also fortifies her arguments by submitting that in the impugned judgment, the learned Single Judge has mentioned some of those documents, which are neither anne xed with the plaint nor mentioned in the list of seven documents filed with the plaint. We have gone through the referred application (C.M.A. No. 4923/2003), which was craftily drafted, wherein prayer of condonation of delay was mingled with the request of production of some documents without mentioning or annexing their list and reason for the non-production of each of those documents. At the time of passing the order on the said application, the learned Single Judge only condoned the delay . Nevertheless, a plethora of documents were produced by the appellant (plaintif f) during the trial but no objection was raised by the learned counsel for the respondents. Now the respondents are objecting to the admissibility of those documents. It is pertinent to point out here that the admissibility of documents in evidence may be classified in two categories; (i) an objection regarding the permissibility of the production of the document on the basis that the same is patently inadmissible due to certain reasons and (ii) the objection does not dispute the admissibility on the ground of its existence but the same is in respect of the mode of its production or proof allegin g through the said document is irregular or insuf ficient due to some deficiency within the document. In the first category , merely because a document has been marked as 'an exhibit', without disputing it at the time of produ ction, an objection regarding its admissibility is not excluded and the same is available even at the appellate stage. Conversely , the situation for the second category is different, and entertaining any objection in this category of documents at the appellate stage cannot be entertained and the same will be against the rule of fair play as well as the jurisprudence of evidence. If the objection regarding the admissibility of such documents was placed at the appropriate point 'of, time, the opposing party may have an opportunity to cure such inadmissibility or may be able to reason out about the deficiency pointed out in the objection. In the present case, it was not the case that those documents were patently inadmissible but the objection was that they were alien to the list annexed with the plaint. This objection was required to be raised at the time of examination or cross-examination or even before the learned Single Judge, since under Order XIII, Rule 3 of C.P.C., the trial Court has the power to reject the irrelevant or inadmissible documents at any stage of the Suit. In the instant case, since the said course was not adopted, while the learned Single Judge has also avoided entering into such discussion at the time of pronouncement of judgment; therefore, being curative inadmissibility of those documents, which were not mentioned in the list annexed with the plaint, such objection cannot be entertained at this stage.
10. We have examined the plethora of documents filed by the appellant, which were produced and exhibited during evidence but no convincing material could be traced out from those documents. It was the case of the appellant that he suffered a loss of Rs.41,53,529/- but unfortunately none of those documents disclosed the said figure. It is astonishing that from the record it appears that the appellant himself was unaware, which machinery was provided by him or retained by the respondent and for how much time, as he was writing letters to seek such details from the respondents. Even if the machineries were hired by the appellant from any third party , he must be aware of their period of retention of machineries by the respondents and resultantly he would be able to calculate the amount of bill claimed by him. It is also revealed from the record that neither any proper claim was preferred by the appellant nor any bill was submitted by him and he was seeking aimlessly such details from the respondent, which otherwise should be available with him. We have minutely examined every letter written by the appellant to the respondents and the legal notices issued on his behalf but none of them indicated the amount of claim of the appellant regarding the plants and machineries provided by him to the respondents It is worth noting that the respondents' assertion is that the plants machineries were faulty , as such the same were returned after a few days as mentioned in the letter dated 23-09-1995, which was produced by the defendant during examination (X-23). It has also come on the record through the letter of respondent No.1 dated 13-02-1995 and produced by the plaintif f in his deposition (Exhibit 29), that the contract of the plaintif f was terminated and he was directed to approach the respondents for necessary formalities. It is worth noting that the appellant himself has admitted the returning of the equipment permanently in his legal notice dated 16-05-1998. The learned counsel for the appellant has repeatedly relied upon the legal notice served upon the respondents on behalf of the appellant and produced during his evidence (Exhibit 90), but the same is also silent about the magical figure of Rs.41,53,529.79, which has abruptly come into light through the plaint filed by the appellant (plaintif f). It appears that the appellant has never preferred any claim regarding the aforementioned amount and also it is not clarified that how the said amount was calculated; therefore, it can safely be held that the appellant had miserably failed to establish the aforementioned amount as due in respect of the contract for the supply of plants and machineries to the respondents.
11. In the light of the above discussion, we have no hesitation to declare that the appellant could not discharge his onus in the Suit proceeded before the learned Single Judge, as such the impugned judgment and decree do not suffer any infirmity , illegality or irregularity . Likewise, we could not find any misreading or non-reading of the available evidence in the impugned judgment, hence the instant appeal is declared as non-meritorious and the same is dismissed with no order as to cost.