MIANGUL HASSAN AURANGZEB, J.----Through the instant regular first appeal, the appellants impugn the judgment and decree dated 02.02.2018 passed by the Court of the learned Civil Judge, Islamabad, whereby suit No.33/2016 for "declaration, permanent, mandatory / directory injunction and for recovery of Rs.90,76,850/- along with mark-up at the prevailing bank rate till realization of the amount" filed by the respondents against the appellants was decreed.
2. Along with the instant appeal, the appellants filed a number of documents (in support of their case) which had not been exhibited during the proceedings before the learned Civil Court. During the course of the arguments, learned counsel for the respondents also gave, across the rostrum, a number of documents which had not been exhibited in the proceedings before the learned. Civil Court. We intend to decide this appeal without taking into consideration any of the documents which had not been exhibited in the proceedings before the learned Civil Court and did not form part of the lawfully tendered evidence.
3. The facts, as discerned from the record of the learned Civil Court, are that vide letter dated 01.04.2010 (Exh.P/3 ), the C.D.A. informed the Joint Venture of M/s Rainbow (Pvt.) Limited and M/s ECCS Aqua Corporizena, Italy ("the J.V.") that its bid dated 19.07.2009 for the award of the contract for the operation and maintenance of 37 small water purification plants at Islamabad ("the Contract "), had been accepted. In the said letter , the contract price was stated to be Rs.8.300 Million. The Contract between the said parties was to be signed within a week of the issuance of the said letter . The said letter also shows that the contract period was one year. The date for the commencement of the Contract was agreed to be 01.04.2010 i.e. the date of the issuance of the said letter . The Contract did not form part of the record before the learned Civil Court since it was not tendered in evidence by any party .
4. Exh.P/2 is a copy of the note file maintained by the C.D.A. It was tendered in evidence by PW.2 (Asim Sohail), the Managing Director of respondent No.l. This document shows that respondent No.1 had not participated in the bidding process by itself but as a member of a joint venture with M/s ECCS, which was stated to be a group of three companies from Italy. No explanatio n was presented by the learned counsel for the respondents as to how a copy of this note file came into their possession.
5. As mentioned above, the duration of the contract was one year. Vide letter No.CDA/DWS(Prod.-II)- I(59)/201 1/857, dated 11.05.201 1 (Exh.P/4/1), the C.D.A. informed the J.V. that the Chairman, C.D.A. had approved the extension in the contract period for six months (i.e. from 01.04.201 1 to 30.09. 2011) on the same rates, terms and conditions of the existing Contract. Furthermore, the J.V. was requested to continue working in accordance with the terms of the existing Contract.
6. Vide letter No.CDA/DD(P-II)/(Acctts)/2009/261 1, dated 26.03.2012 (Exh.P/4/2), the C.D.A. informed the J.V. that it had been decided to extend the contrac t period by another twelve months i.e. from 01.10.201 1 to 30.09.2012, on the same terms and conditions.
7. Vide letter No.CDA/DD(P-II)/(Acctts)/2013/946, dated 26.03.2013 (Exh.P/4/3), the C.D.A. informed the J.V. that it had been decided to further extend the contract period by another six months i.e. from 01.10.2012 to 31.03.2013.
8. Vide letter No.CDA/DD(Prod.-II)-I(51)/2 013/172 dated 25.07.2013 (Exh.P/4/4 ), the C.D.A. requested the J.V. to immediately hand over all the 37 small public drinking water filtration plants. Vide letter No.CDA/DD(P- II)/(Acctts)/2013/495, dated 12.09.2013, the C.D.A. informed respondent No.1 that the Chairman, C.D.A., being the competent authority , had not approved a further extension in the duration of the Contract. Furthermore, respondent No.1 was informed that the balance payment will be made after the allocation of funds.
9. Respondent No.1 addressed four undated letters (Exh.P/5 to Exh.P/5/7 ) to the C.D.A. seeking the release of payments under the Contract since September 2012. These letters were sent to the C.D.A. in the second half of May 201.3. In the said letters, the position taken by respondent No.1 was that it was entitled to be paid at the rate of Rs.18,693/- per filtration plant per month. Having not received any response from the C.D.A., legal notice dated 16.05.2013 (Exh.P/6) was sent on respondent No.1's behalf to the C.D.A. wherein a claim of Rs.62,25,000/- as balance payment for nine months was made against the C.D.A.
10. Since the said payment was not released by C.D.A., respondent No.1 filed writ petition No.2543/2013 before this Court praying for the release of payment for services rendered for C.D.A. Vide judgment dated 18.06.2013, the said petition was dismissed primarily on the ground that respondent No.1 had agitated a dispute relating to contractual obligations which could not be resolved in exercise of jurisdiction under Article 199 of the Constitution.
Against the said judgment, respondent No.1 preferred an intra Court appeal which was disposed of by the Division Bench of this Court vide order dated 19.01.2017 with the direction to the C.D.A. to afford an opportunity of hearing to respondent No.1 and thereafter pass a speaking order .
11. After the disposal of the said intra Court appeal, respondent No.1, vide letter (Exh.P/9), sent in February 2017 requested C.D.A. to release its payments which were payable for the period between 01.10.2012 and 25.07.2013.
Since the C.D.A. did not release the amount claimed by respondent No.1, the latter , on 12.04.2017 filed a suit for declaration, permanent, mandatory/directory injunction and recovery of Rs.90,76,850/- along with mark-up against the appellants before the Court of the learned Civil Judge, Islamabad. After written statement was filed on behalf of C.D.A., the learned Civil Court, vide order dated 13.09.2017, framed following issues:-
1. Whether the Plaintiff is entitled to recover amount of Rs.90,76,850/- from the Defendant, if so, at what rate and for which period? OPP
2. Whether the suit of plaintiff is liable to be dismissed with cost in view of legal and factual objections raised by the defendant in written statement? OPD
3. Relief,"
12. Muhammad Ramzan, Sub-Engineer , C.D.A. appeared as PW.1, whereas Asim Sohail, the Managing Director of respondent No.1 gave evidence as PW.2. Nasir Jamil Butt, Director , Water and Supply , C.D.A., appeared as DW.1.
After the recording of evidence and hearing the arguments of the learned counsel for the contesting parties, the learned Civil Court vide judgment and decree dated 02.02.2018 decreed the suit by holding that the respondents were entitled to the recovery of Rs.90,76,850/- from the C.D.A. Furthermore, a mandatory injunction was issued directing the C.D.A. to release the respondents' bills subject to the fulfillment of codal formalities. The said judgment and decree has been assailed by the appellants in the instant appeal.
13. Learned counsel for the appellants, after narrating the facts leading to the filing of the instant appeal, submitted that the suit to the extent of seeking recovery of money was grossly barred by time; and that it was obligatory for the learned Civil Court to have dismissed the suit on the ground of limitation regard less of the fact that an objection in this regard had not been taken on behalf of the C.D.A.
14. Learned counsel for the appellants further submitted that vide letter dated 26.03.2013, the C.D.A. informed the J.V. that the duration of the contract had been extended to 31.03.2013; that there is no evidence on the record to show that the C.D.A. had extended the duration of the Contract beyond 31.03.2013; that the C.D.A. had considered respondent No.1's request for an extension of four months in the duration of the Contract (i.e. up to 31.07.2013) but an approval in this regard was not granted by the competent authority; that vide letter dated 25.07.2013 (Exh.P/4/4 ), the C.D.A. requested the J.V. to immed iately hand over all the 37 small public drinking water filtration plants; and that vide letter dated 12.09.2013, the C.D.A. informed respondent No.1 that the Chairman, C.D.A., being the competent authority , had not approved an extension in the duration of the Contract up to 31.07.2013.
15. Learned counsel for the appellants further submitted that respondent No.1 sent letters (Exh.P/5/1 to Exh.P/5/7 ) to different Directorates in the C.D.A. requesting for the release of payments for a period of nine months since September , 2012; that on 16.05.2013, a legal notice was addressed to the C.D.A. on behalf of the respondent wherein a claim of Rs.62,25,000/- was made against the C.D.A.; that the learned Civil Court erred by not appreciating that the Contract had not been tendered in evidence; that without the Contract having been produced, the learned Civil Court could not have decreed the respondents' suit; that the respondents had not even produced their invoices before the learned Civil Court; that the learned Civil Court did not refer to any contractual mechanism under which payments were to be made to the respondents; that the J.V. had failed to return the inventory items to the C.D.A.; that the J.V. had not submitted the periodic water test reports to the C.D.A. for approval; that the respondents had produced documents which could not be under their legal domain; that the respondents had also tendered in evidence copies of the C.D.A.'s note file and measurement book which had been lost by the C.D.A.; that the suit instituted by the respondents was not maintainable since the Contract was not awarded to the respondents only but to a joint venture of which respondent No.1 was a member; and that there is nothing on the record to show that the other members of the joint venture had authorized the respondents to file the suit. Learned counsel for the appellants prayed for the appeal to be allowed and for the impugned judgment and decree to be set-aside.
16. On the other hand, learned counsel for the respondents submitted that the impugned judgment and decree does not suffer from any legal infirmity; that it is an admitted fact that a Contract for the operation and maintenance of 37 small water purification plants was executed between the C.D.A. and the J.V.; that on account of such admission, the production of the Contract in evidence was not necessary; that there was nothing on the record to show that any payments for the services rendered by the respondents had been made after September , 2012; that although the C.D.A. did not issue a formal letter extending the operation of the Contract beyond 31.03.2013, but the C.D.A. continued to utilize the respondents' services up to 25.07.2013; that the C.D.A. was bound to make payment for the services rendered by the respondents from September , 2012 to May, 2013; that the measurement book produced by the respondents clearly shows that the C.D.A. had utilized the respondents' services up to 25.07.2013; that in the past, the C.D.A. had extended the duration of the Contract after the expiry of the contract period; that after the expiry of the contract period on 31.03.2013, the respondents were given to understand that their application for an extension in the duration of the Contract would be allowed by the competent authority; and that it was not until 12.09.2013 when the respondents were informed that the competent authority had not approved an extension in the duration of the contract from 31.03.2013 to 31.07.2013.
17. Learned counsel for the responden ts further submitted that since respond ent No.1 had filed writ petition No.2543/2013 before this Court seeking a direction to the C.D.A. to release its contractual dues and since after the dismissal of the said petition, respondent No.1 had preferred intra Court appeal No.898/2013, which was decided, vide order dated 19.01.2017, the time consumed while respondent No.1 pursuing its remedy before this Court has to be excluded from the limitation period for filing a suit for recovery; that the C.D.A. never called upon the respondents to submit the water test reports; that the C.D.A. also did not ask the respondents to return the inventory; that the C.D.A. did not come up with any lawful justification for not releasing the respondents' dues; and that in 'addition to the monthly dues of Rs.18,693/- per each filtration plant per month, the C.D.A. was also liable to refund the security amount of Rs.14,72,915/-. Learned counsel for the respondents prayed for the appeal to be dismissed.
18. We have heard the contentions of the learned counsel for the contesting parties and have persued the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 3 to 12 above and need not be recapitulated.
19. We propose, in the first instance to deal with the question whether the suit instituted by the respondents was barred by limitation. Article 56 of the First Schedule of the Limitation Act, 1908 provides a limitation period of three years for a suit for the recovery of price of work done by the plaintif f for the defendant at his request, where no time has been fixed for payment. The limitation period for instituting such a suit begins from the date when the work is done. Since the Contract was not tendered in evidence, it is not known whether the parties had agreed for payment to be made within a certain time.
20. The suit for recovery etc. was instituted by the respondents on 12.04.2017. In the said suit, the respondents were seeking recovery of the payments due for the work done and services performed between September 2012 and July 2013. It is an admitted position that after 25.07.2013, the respondents did not do any work or perform services under the Contract. In terms of Article 56 of the First Schedule to the Limitation Act, 1908, the cause of action for instituting a suit for recovery for work done accrued to the respondents on 25.07.2013. This would make the suit instituted by the respondents to be beyond the limitation period of three years prescribed by law .
21. The C.D.A., in its written reply , did not take an objection to the effect that the suit was barred by limitation. The learned Civil Court also did not frame an issue on the question of limitation. Be that as it may, we are of the view that it was obligatory on the learned Civil Court to have taken notice of the delay with which the suit had been instituted. Merely because the C.D.A. had not taken an objection regarding the suit having been filed after the expiry of the limitation period provided in Article 56 (ibid) did not absolve the learned Civil Court to have given a finding on whether the suit instituted by the respondents was time barred. In taking this view, we derive guidance from the law laid down by the Superior Courts in the following judgments:-
(i) In the case of Government of N.-W .F.P. v. Akbar Shah (2010 SCMR 1408 ), it was held that it is the obligation of the Court to look into the point of limita tion without there being objection of any party in terms of Section 3 of the Limitation Act, 1908."
(ii) In the case of Haji Rehmdil v. The Province of Balochistan (1999 SCMR 1060 ), it was held that it is not for the defendant in a suit to show that the suit is barred by time but the plaintif f to establish that he is in time, not to mention the obligation of the Court to independently advert to limitation, as enjoined by Section 3 of the Limitation Act, 1908.
(iii) In the case of Muhammad Buta v . Habib Ahmad (PLD 1985 SC 153 ), it was held as follows:- "4. The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C. P. C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority , and a detailed discussion of the same is not necessary , to lay down that limitation being a matter of statute and the provisions being mandatory , it cannot be waived and even if waive d can be taken up by the party waiving it and by the Courts themselves."
(iv) In the case of Muhammad Sami v. Additional District Judge, ' Sargodha (2007 SCMR 621), it was held as follows:- "8. It is worth mentioning that the question of limitation was neither dilated upon nor decided by the learned High Court. In our considered view the question of limitation should have not been left unattended to having a substantial bearing on the fate of the case. It is bounden duty of the Court to notice the question of limitation irrespective of the fact whether it was agitated or not. In this regard we are fortified by the dictum laid down in case titled Muhammad Buta v. Habib Ahmad PLD 1985 SC 153. There is no cavil with the proposition that any order or judgment passed by trial, appellate or revisional Courts should be indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation dealt with the same with diligent application of mind prior to, dilating upon and decidin g the controversy on merit because disposal on merit alone would not be sufficient to presume that the delay was condoned."
Law to the said effect has also been laid down in the cases of Commissioner of Income Tax v. Hakim Ali Zardari (2006 SCMR 170), Haji Ghulam Rasool v. Government of the Punjab (2003 SCMR 1815 ), Nawab Din v.
Muhammad Hussain (2004 CLC 269), Ali Hasan v. Manzoor Ahmad (1997 CLC 268), Sh. Allah Rakha v. U.P.
Church (1993 MLD 2126 ), and Jam Muhammad Ismail v . Jam Bahawal (2012 MLD 1545 ).
22. Learned counsel for the respondents submitted that period during which the respondents were pursuing their remedy before this Court through writ petition No.2543/2013 and intra Court appeal No.898/2013 should be excluded from the limitation period for filing a suit for recovery of money for work done. This, in our view, is a tacit admission of the fact that the suit instituted by the respondents was beyond the limitation period provided by. law. It is an admitted position that along with the said suit, the respondents had not filed an application for condonation of delay . The mere fact that the learned Civil Court had decided the respondents' suit on merits would not imply that the delay in filing of the suit had been condoned. In the case of Ahsan Ali v. District Judge (PLD 1969 SC 167), it was held as follows:- "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proce eding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits."
23. The said judgment was quoted with approval by the Hon'ble Supreme Court in the case of Muhammad Sami v.
Additional District Judge, Sargodha (2007 SCMR 621 ).
24. We are of the view that the learned Civil Court ought to have adverted to the question of limitation regardless of the fact that an objection as to limitation had not been taken by the C.D.A. in its written statement or that an issue on limitation had not been framed. We deem it appropriate to remand the case so that the learned Civil Court can give a finding on whether the respondents' suit was barred by limitation.
25. The respondents had produced the work order dated 01.04.2010 as Exh.P/3. In the said work order , it was mentioned that the Chairman,. C.D.A., being the competent authority , had accepted the J.V.'s bid of Rs.8.3 million for the operation and maintenance of 37 small water purification plants at Islamabad. In the said work order , it was also mentioned that the Contract may be signed within a week of the issuance of the said order . It is the Contract between the C.D.A. and the J.V. that would provide the mechanism for the payment for the work done by J.V. under the terms of the Contract. Learned counsel for the respondents candidly admitted that the Contract was not produced in the proceedings before the learned Civil Court. Muhammad Ramzan, Sub-Engineer , C.D.A. appeared as PW.1, and in his examination-in-chief, deposed inter alia that the original Contract was in his possession. In view of this deposition, the learned Civil Court erred by not requiring the said witne ss to produce the Contract. The respondents did not even produce the invoices submitted to the C.D.A. for the work done. Since the entire edifice of the respondents' claim in the suit again st the C.D.A. was based on the Contract , we are of the view that without going through the Contract, the learned Civil Court could not have decreed the respondents' suit in its entirety .
26. The respondents had sufficient opportunities to produce the Contract before the learned Civil Court. After the evidence of the two witnesses produced by the respondents had been recorded, an application was filed by the respondents for the production of second ary evidence. Surprisingly , the learned counsel for the C.D.A. before the learned Civil Court conceded to the said application. This concession is reflected in the order dated 02.11.2017 passed by the learned Civil Court. As secondary evidence, the respondents produced the copies of the measurement book but chose not to produce the Contract.
27. The copies of the measurement book had been produced in evidence by the respondents. The measurement book is maintained by the C.D.A. Even if the measurement book is to be relied upon to show that the respondents had performed services for the C.D.A. between September 2012 and July 2013, the measurement in the said book is, in no way , indicative of the quantum of the payment which the C.D.A. was liable to make to the respondents.
28. The learned Civil Court after observing that the calculation of the respondents' outstanding bill was based on the measurement book which had been lost and a report in the concerned police station had been lodged went on to hold that "such negligence on the part of C.D.A. is a clear proof that the plaintif f claims the right amount- as per his outstanding amount." The negligence on C.D.A.'s part in losing the measurement book has been made a ground by the learned Civil Court to allow the entire claim made by the respo ndents against the C.D.A. This decision cannot be termed to be in consonance with the canons of just adjudication.
29. Another vital aspect of the case which appears to have escaped the attention of the learned Civil Court was that the Contract was not awarded to respondent No.1/M/s Rainbow (Pvt.) Ltd. alone but to the J.V of which respondent No.1 was one of the components. Exh.P/2 shows that the bid for the award of the contract was submitted by respondent No.1/M/s Rainbow (Pvt.) Ltd. J.V. with M/s ECCS (a group of three companies from Italy). The other members of the joint venture are not the respondents' co-plaintif fs in the suit. The joint venture agreement between M/s Rainbow (Pvt.) Ltd. and its joint venture partners was not produced in evidence. There is no authority on the record from the other members of the joint venture authorizing the respondents to institute the suit on their behalf.
Since the Contract was not produced in evidence, it cannot be ascertained as to the proportion of the respondents' entitlement in the payments to be made by the C.D.A. under the Contract. This is an additional reason why a decree for the entire amount prayed for in the suit in the respondents' favour only is not sustainable.
30. As mentioned above, respondent No.1 (M/s Rainbow Enterprises (Pvt.) Ltd.) was a component of the J.V. to which the Contract was awarded by the C.D.A. Respondent No.2 (Asim Sohail) is the Managing Director of respondent No.1 and could not sue in his individual capacity for the recovery of contractual dues payable to the J.V.
The respondents did not produce a resolution of respondent No. l's Board of Directors authorizing respondent No.2 to file or institute the suit. In the suit, it was not even pleaded that respondent No. l's Board of Directors had authorized respondent No.2 to file or institute the suit. Respondent No.1 's Memorandum and Articles of Association were also not produced in evidence. It is well settled that a suit has to be correctly instituted and properly constituted. The learned Civil Court ought to have taken account of the vital omission on respondent No. l's part in not producing a board resolution or its Memorandum and Articles of Association so as to show that the suit had been correctly instituted. At no material stage did respondent No.1 pass any resolution in an attempt to rectify the defect in the institution of the suit. Recently in the case of Rahat & Co. v. Trading Corporation of Pakistan (PLD 2020 SC 366), the Hon'ble Supreme Court has held inter alia that all that was required to be considered was the Articles of Association of a company to see as to whether the suit has been correctly instituted.
Furthermore, it was held that since the Articles of Association of a company was a public document, the Court should, if at all, it considers necessary require the Articles of Association to be produced. Since we intend to remand the matter , the learned Civil Court may call for the Articles of Associa tion of respondent No.1 to be produced in order to satisfy itself as to whether the suit had been correctly filed or instituted.
31. It ought to be mentioned that a number of documents that were tendered in evidence before the learned Civil Court have portions which have been blacked out and are thus not readable. In particular , the dates on the documents exhibited by the respondents' witnesses are blacked out. The Lower Court Record ("LCR") was also seen by us which also shows that the dates and material contents of the documents were blacked out but nonetheless copies of original documents were allowed by the learned Civil Court to be exhibited.
32. An application (C.M.No.17/2020) was filed by the C.D.A. for the production of additional evidence. Since we have decided to remand the case, the learned Civil Court, may decide the said application.
33. In view of the above, the instant appeal is allowed ; the impugned judgment and decree dated 02.02.2018 is set- aside ; and the matter is remanded to the learned Civil Court for a decision afresh. There shall be no order as to costs.