' This civil revision calls in question the judgment and decree passed on 18-1-1988 by the learned Additional District Judge, Bannu, affirming the judgment and decree dated 16-11-1987 of the learned Senior Civil Judge, Bannu, hereby the claim of the respondent was granted.
2. Brief facts leading up to this revision are that Begu Khan was awarded on 11-6-1978 a contract for execution of work what had been described by the Sub-Divisional Officer, Civil Canal Sub-Division, Bannu, petitioner No,3 herein, as "Restoration of Spur near Kotka Alam Khan damaged on 11-8-1978".
He was directed to complete it within twenty days. Begu Khan claimed to have completed the said work worth Rs,29,006 within the stipulated time which was duly recorded in the Measuremet Book as well. The petitioners declined to entertain his claim. But as he was not in a position to pay court- fee on the entire amount thus claimed by him, he limited his claim to Rs,24,900 and sued for the said amount.
3. In the written statement filed jointly on behalf of the defendants-petitioners, the claim of the respondent was repudiated on the ground that the contractual work completed by the respondent was washed away by unprecedented floods of more than 2 lacs cusecs in Kurram River. On the legal plane, the suit was resisted on two-fold grounds: firstly, that the respondent was devoid of any cause of action and, secondly, that the respondent should pay proper court-fee.
4. The pleadings of the parties are gleaned from the following issues:--
(1) Whether the plaintiff has got a cause of action? OPP
(2) Whether the suit is properly valued for the purposes of court-fee? OPP
(3) Whether the plaintiff is entitled to the recovery of Rs,24,900 as prayed for? OPP
(4) Relief.
5. Issue No,2 was decided against the petitioners, while both issues 1 and 3 were found in favour of the respondent and resultantly his claim of Rs,24,900 was decreed, leaving the parties to bear their own costs. The learned Additional District Judge affirmed these findings of the learned trial Judge in appeal and had dismissed it. Hence this petition in revision.
6. Mr. Muhammad Iqbal Khan Kundi, the learned counsel appearing on behalf of the petitioners contended that the findings of the two Courts below on issue No,3 were erroneous in that notwithstanding entry of the work done in the Measurement Book the respondent was not entitled to the amount on the grounds: firstly, that the measurements recorded in the Measurement Book were neither checked nor verified by the Sub-Divisional Officer; secondly, that under Clause 29 of the Contract Agreement, the petitioners were not bound to accept any responsibility on account of damage caused by floods to the work done and; thirdly, that the work was admittedly completed in July, 1978 and that the claim brought on 2-1-1982 was hopelessly barred by time under Article 56 of the Limitation Act, 1908, which prescribes 3 years from the date of completion of work.
7. As against it, Mr. Mazhar Alam Khan Miankhel, the learned counsel for the respondent, argued that the duty to check and verify the work done lay upon the petitioners and if they had not done their duty for any reason, the respondent could not be held liable. According to the learned counsel, the work was admittedly completed before 1st or 2nd of July, 1978 and was duly recorded in the Measurement Book which ought to have been checked and verified. He further argued that to the misfortune of the respondent not only the work of restoration of the spur but the spur itself was washed away by the unprecedented floods in Kurram River. The learned counsel maintained, and rightly so, that the claim of the respondent was not hit by Clause 29 of the Contract Agreement in that it could be invoked in case of "partly completed work" and not to complete work.
8. I have decided to take up first the contention of the learned counsel for the petitioners that the suit is hopelessly barred by limitation under Article 56 of the Limitation Act. The cases cited in support of his contention (1) Abdul Majid v. Chief Settlement and Rehabilitation Commissioner PLD 1968 SC 154 and (2) Fazal Muhammad v. Nabi Bakhsh 1969 SCM R 531 are not of any help to the petitioners. In Abdul Majid's case since the real question that arose for consideration of their Lordships of the Supreme Court for the first time was as to whether the Settlement Authorities were right in treating each room comprised in the premises in dispute therein as an independent commercial unit, it was allowed to be raised before it. Obviously it was not the question of limitation that was allowed to be raised for the first time before the august Supreme Court. In the second precedent case of Fazal Muhammad also from the Supreme Court, the following rule was laid down: "In view of section 3 of the Limitation Act, which makes it obligatory on the Court to dismiss a proceeding on the ground of limitation although the plea has not been raised by a party, it is open to the defendant to take the plea of limitation even in an Appellate Court for the first time provided that the matter can be decided on the basis of facts which are admitted or are patent on the record, and a new investigation into facts is not necessary, and provided also that the plea, if raised in the trial Court could not have been made by a plea of the fact."(Underlining is by me).
9. There is no cavil with this proposition of law propounded by the Honourable Supreme Court. The conditions precedent for allowing the appellant to take the plea of limitation are that it may be raised in the appellate Court; that the matter can be decided on the basis of facts which are admitted or are patent on the record; that a new investigation into the facts is not necessary; and that the plea, if raised in the trial Court, could not have been made a plea of the fact. In the instant case, none of these conditions seems to have been satisfied. Nonetheless, when an identical argument was argued before the august Supreme Court in Ghulam Muhammad v. Abdul Qadir Khan PLD 1983 SC 68, it was repelled in the following words:-- "Learned counsel has argued that even though it is not conceded by him that the point was not pressed in the High Court; it was also the duty of the learned Judge in the High Court himself to examine the question of limitation, firstly because it is so required by section 3 of the Limitation Act and secondly because the plea was raised before the trial Court, the Appellate Court and also in the grounds of revision petition. No doubt one trend in old authority was that every point relatable to limitation could be urged in the higher forum even if not pressed earlier but this Court finally resolved the controversy in Khairati and 4 others v. Aleemud-Din and another PLD 1973 SC 295. The ratio of this decision is that although it would be necessary for the appellate Court (here the High Court) to examine whether the proceedings instituted before it are within limitation, it will not be under any legal obligation to do so if the plea of limitation related to the institution of the suit/proceedings before the trial Court."
10. Again in Muhammad Ishaq and others v. Shah Muhammad and others 1985 SCM R 799, the ratio of the above two decisions was held to be that: "It would be necessary for the appellate or revisional forum, where the Limitation Act is applicable, to examine under section 3 of the Limitation Act whether the proceedings instituted before itself are within limitation. But it will not be under any legal obligation like the one visualised by section 3 of the Limitation_ Act to do so if the plea of limitation raised before it related to the institution of the original case/suit in the trial forum and/or the institution of any other matter before a lower forum.
Thus if a question of limitation is raised before the High Cort in connection with the institution of an appeal before itself beyond the period of limitation it will be the duty of the High Court to examine the same notwithstanding the fact that the other party did not raise or having raised, did not press the bar of limitation. But if the argument is that the High Court did not examine the question of limitation relatable to the filing (beyond limitation) of a suit/case before a lower forum then the High Court would not be obliged to examine the same unless it is raised before it because section 3 of the Limitation Act does not place any such responsibility on the High Court regarding the proceedings of the lower forum--when exercising its power of review in appellate or other jurisdiction."
11. The case of the petitioners herein is on weaker footing because in the rule reproduced above, the plea of limitation was raised before the trial Court, the Appellate Court and also in the grounds of revision petition whereas in the case in hand, this plea was neither raised in written statement nor before the trial Court nor was taken up in the memorandum of appeal nor was taken up in the grounds of revision.
12. The settled proposition of law now is that no doubt Order XLI, Rule 2, C.P.C. Vests the Appellate Court with a discretion to allow a party to urge any ground not set forth in the memorandum of appeal or the grounds of revision but the ground including one of the limitation must be the one which has been raised and debated in the trial Court and not the one which has been completely left out from the very beginning. The plea of limitation agitated by the petitioners in this petition cannot, therefore, be allowed to be raised at the hearing.
13. It is not denied that the work was complete within the stipulated period of 20 days and was duly recorded in the Measurement Book from 11-6-1978; that spur alongwith the restoration work done by the respondent was washed away on the night between 6th and 7th July, 1978 due to unprecedented flood in river Kurram; that the work was neither checked nor verified by the competent authorities by 6th of July, 1978. The controversy is thus narrowed down to the point as to whether the respondent's claim notwithstanding its entry in the Measurement Book was or was not hit by Clauses 17 and 29 of the Contract Agreement. Since interpretation of Clauses 17 and 29 of the Agreement is involved, it would be appropriate to reproduce them. They read: Clause - 17.
"If the contractor or his work people, or servants shall break, deface, injure or destroy any part of a building, in which they may be working or any building, road, fence, enclosure or grass land, or cultivated ground contiguous to the premises, on which the work shall or any part of it is being executed or if any damage shall happen to the work while in progress from any cause whatever or any imperfections become apparent in it within three months after the engineer-in-charge as aforesaid, the contractor shall make the same good at his own expense or in default the Engineer- in-charge may cause the same to be made good by other workmen and deduct the expense of which the certificate of the Engineer-in-charge shall be final from any sums that may be then, or at any time thereafter may become due to the contractor, or from his security deposit or the proceeds of sale thereof or of a sufficient portion thereof."
' Clause - 29.
"The Government will acccept no responsibility on account of damage caused by floods, fires spates, thefts, riots, force majeure, or any act of God, to partly completed work, or to material belonging to the contractor or to materials supplied by the Public Works Department once they have been handed over to the contractor."
14. The two Courts below have held the view that the phrase "if any damage shall happen to the work while in progress from any cause whatever" occurring in Clause 17 whereunder the petitioners have sought refuge to decline the payment of the suit money cannot be construed to include "the force majeure, or any act of God" occurring in Clause 29 of the Contract Agreement.
15. A bare reading of the two Clauses would make it abundantly clear that responsibility is not cast on the Government "on account of damage caused by floods force maieure or any act of God to partly completed work" (underlining is mine) It would thus be clear that complete work does not fall within the mischief of Clause 29.
16. There is no manner of doubt that the record confirms that the damage has not been caused to the work in dispute while in progress. It was rather washed away after it had been completed and had been duly recorded in the Measurement Book. The work was neither in progress within the contemplation of Clause 17, nor it was partly completed within the ambit of Clause 29 ibid.
17. After going through the record of the case and the judgments of the two Courts below, I have not been able to pursuade myself that the contentions of the learned counsel for the petitioners have any substance. The learned Courts below have applied their conscious mind to the relevant evidence and have given sound and cogent reasons in support of their decisions. The learned counsel has failed to point out any mis-reading/non-reading of evidence by the Courts below. The judgments of the two Courts below thus do not suffer from any illegality or material irregularity.
18. For what has been stated above, I do not find any justification to interfere with the concurrent findings of the Courts below. The revision is dismissed with costs.