' SAAD SAOOD JAN, J.-This is a regular first appeal by the defendants from the judgment and decree dated 23-12-1980, cf Civil Judge, Ist Class, Lahore. The case of the plaintiff was that the defendants had some unserviceable stores lying in Shahpur Division of the Irrigation Department which they wanted to dispose of and had for that purpose divided them into a number of lots. An open auction was held in December, 1971, but the highest bid received thereat was not acceptable to the defendants. Later, they invited quotations for the sale of the said stores. The plaintiff made an offer of Rs, 1,76,000 as against the highest bid of Rs, 1,57,000 received at the auction. The defendants accepted the offer of the plaintiff and called upon him to deposit Rs, 40,620 by way of earnest money. This was duly done within the period specified by the defendants. Thus a binding contract came into existence between the parties. Subsequently, the defendants reneged on the contract and refused to either hand over the stores to the plaintiff or receive the balance of the price. The plaintiff, therefore, sought a mandatory injunction against the defendants to the effect that they should receive the remaining sale price as agreed and release the stores in his favour.
2. The suit was resisted by the defendants. Apart from taking a number of legal objections with regard to the competency and maintainability of the suit they stated that the stores could only be sold if they were declared surplus by the competent authority. In this particular case the competent authority had not made any such declaration. Apart from that the competent authority had not accepted the offer of the plaintiff and as such no contract for the sale of the stores had come into existence between the parties. It was also stated that the stores had since been utilized by the defendants in connection with some public works and were as such no longer available.
3. On the pleadings of the parties the trial Court framed as many as nine issues. These were :- (1)Whether the suit has been properly valued for Court-fee and jurisdiction and the plaint has been sufficiently stamped? If not, its effect?
(2)Whether this Court has jurisdiction to try the suit?
(3)Whether the suit is maintainable in the present form and plaintiff has got a locus standi and cause of action to file the suit?
(4)Whether the auction regarding the surplus stores as mentioned in paragraph 2 of the amended plaint dated 11-7-1975 was confirmed in the name of the plaintiff?
(5)If Issue No, 4 is proved, whether the defendants can be directed to receive the balance amount of Rs, 1,35,680 and to release the property in question in favour of the plaintiff?
(6)If issue No, 4 is not proved, whether the factum of the non-acceptance of the offer made by the plaintiff was brought to the notice of the plaintiff? If not, with what legal consequences?
(7) Whether the plaintiff has not come to the Court with clean hands? If so, its effect?
(8) Whether the suit is vexatious, frivolous and false and the defendants are entitled to get special costs? If so, to what extent?
(9) Relief.
' The learned trial Court held that the proper value of the suit for purposes of Court-fee was Rs, 1,76,300 ; the Civil Court at Lahore had jurisdiction to try the suit ; the suit was maintainable in its present form and the plaintiff had locus standi and cause of action to file the suit ; there was a binding contract between the parties and that the plaintiff was entitled to obtain the goods on payment of the balance price. Accordingly, it decreed the suit in favour of the plaintiff.
4. After going through the evidence produced by the parties we are satisfied that there was no agreement between the plaintiff and the defendants or the sale of the stores in question. It is, therefore, unnecessary to record any finding on the other issues raised in the suit. In support of their assertion that a binding contract of sale of stores had come into existence between the parties the plaintiff relied upon three documents in addition to the oral testimony of four witnesses including the plaintiff. It will be more convenient to deal with the documentary evidence first. The first document (Exh. P. 1) is a letter addressed by the plaintiff on 3-2-1972 to the Superintending Engineer, Lower Jhelum Canal Circle, Sargodha. Through this letter the plaintiff offered to buy the various lots of the unserviceable stores for different amounts indicated against each lot.
Admittedly, this letter was merely in the nature of an offer to buy the stores. The second document (Exh. P. 2) is a letter addressed by the Executive Engineer of Shahpur Division on 19-4-1972 to the plaintiff. It runs as follows :- "Please deposit Rs, 40,620, 1/4th of the total bid of Rs, 1,62,480 in this office by 25-4-1972 positively. In case you fail to deposit the said amount the case will be referred to the competent authority for decision."
' The third document (Exh. P. 3) is a receipt issued on 25-4-1972 by the Executive Engineer, the author of Exh. P. 2, in favour of the plaintiff in respect of the deposit of Rs, 40,620. The plaintiff claims that the letter of the Executive Engineer (Exh. P. 2) was an acceptance of his offer and the deposit made by him through receipt (Exb. P. 3) was in the nature of earnest money for the sale of the stores in question. We find little merit in this assertion. As noticed above, the offer for buying the stores was made by the plaintiff to the Superintending Engineer. It is not the case of the plaintiff that the Superintending Engineer had at any time communicated to him the acceptance A of his offer. The letter (Exh. P. 2) which the plaintiff treats as acceptance was written. By the Executive Engineer in pursuance to a communcation received by him from the Superintending Engineer. That communication is Exh. D. C. On the record. It reads as follows :-##TE# "Please ask Messrs Abdul Karim-Faqir Muhammad etc. To deposit 1/4th of the offer which he has made vide his application dated. 3-2-1972 and thereafter, re-auction the whole stuff. In this connection your attention is also invited to Messrs Abdul Karim-Faqir Muhammad's letter dated 14- 3-1972 addressed to you and a copy to this office. The auction documents as received with your letter under reference are, therefore, returned herewith for further action as above. In case Messrs Abdul Karim-Faqir Muhammad fail to deposit the requisite amount within the reasonable time then the whole case may please be resubmitted to this office so that the case may be referred to C. E.
Irrigation Lyallpur for obtaining his approval to the auction."
' As we read this letter we can hardly treat this as an acceptance of the offer made by the plaintiff.
It merely contained a direction to the Executive Engineer to call upon the plaintiff to deposit one- fourth of this bid and re-auction the stores. The requirement of making the deposit here was quite clearly intended to test the bona fides of the offer made by the plaintiff. This would appear so from the words 'and thereafter re-auction the whole stuff' as used in this letter (Exh. D. C.). To the same effect is the statement which the Executive Engineer made while appearing as a witness for the defendants as D. W.
3. The exact words used by the Executive Engineer were :- {{URDU TEXT}} ' Viewed in this background we are unable to treat the letter of the Executive Engineer addressed to the plaintiff or the communication sent by the Superintending Engineer to the Executive Engineer as equivalent to the acceptance of the offer made by the plaintiff.
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5. As regards the oral evidence, the plaintiff relied upon the testimony of Abdur Razzaq (P. W. 1), Malik Muhammad Shafi (P. W. 2), Muhammad Siddique (P. W. 3) and Abdul Karim (P. W. 4). Abdur Razzaq (P. W. 1) is a businessm an of Lahore. He stated that the Executive Engineer had told him that the stores had been sold to the plaintiff. Muhammad Siddique (P. W. 3) is a scrap merchant of Lahore. He has made a similar statement. Malik Muhammad Shafi (P. W. 2) is a 'Kabari3' of Lahore.
He stated that the Head Clerk of the office of the Executive Engineer had informed him that the stores had been sold in favour of the plaintiff. Abdul Karim (P. W. 4) is the plaintiff. He asserted that the Executive Engineer, Mr. Cheema, had on many occasions asked him to take possession of the stores. It may be noticed that when Mr. Cheema appeared in the witness-box he was not confronted with any of the statements which he had allegedly made before the witnesses or Abdul Karim (P. W. 4). In any event, in the absence of any written communication informing the plaintiff about the B acceptance of his offer we are unable to place any reliance upon the oral testimony.
6.The above being the state of plaintiff has utterly failed to establish stores by the defendants in his favour. The judgment and decree of the trial dismissed with costs throughout. evidence we are of the view that th a contract for sale of unserviceabl The appeal is accordingly accepted, Court are set aside and the suit is dismissed with costs throughout.