' The facts which gave rise to the present revision petition may briefly be narrated here. The petitioner M/s. M.A. Janjua, a registered Firm (hereinafter called the Contractor), made an offer on 18-3-1974 to the respondents for construction of 3 covered platforms in C.A.D. Havelian. The offer was accepted on 5-4-1974 and contractor was issued a Work Order on 30-5-1974, wherein the time for the completion of the work was laid down as six months. The contractor was required to complete the work within the stipulated period of 6 months which was to expire on 31-11-1974.
2. The contractor also signed an agreement on 30-5-1974. Clause 9 of the said Agreement made time as the essence of the contract. The site for the start of the construction work was although handed over to the contractor on the very day of 31-5-1974 when Work Order was issued to him, but nevertheless the next day on 1-6-1974, the work was suspended due to the non-availability of the site. It was on 22-6-1974 that the suspension imposed was lifted and the contractor was advised to speed up the work and complete it on due date. The contractor asserted and brought it to the notice of the respondents that due to the change of site, the issuance of Deviation Order of the foundations and preparation of the cross-section of the new site was essential, without which the work could not be started. It was on 4-9-1974 that the contractor was supplied with cross- section showing proposed depth of foundation below proposed ground level. In this manner more than four months out of stipulated period of six months were lost. The work was not started as according to the contractor originally the site and then its cross-section were not available.
However, on supply of the cross-section to the contractor, he made representations to the respondents for extension of time of six months to be reckoned from 4-9-1974 when cross-section was made available to him. He also requested further extension of time for three months for the additional work of foundation.
3. The contractor was informed on 10-8-1974 that he was to complete the work by 21-12-1974 instead of 31-11-1974 due to suspension of work from 1st June, 1974 to 21st of June, 1974 and for the late supply of cross-section. And for the additional work of foundation, the contractor was granted extension of time to complete the work by 31-1-1975. The contract agreement was cancelled on 25- 2-1975 and the incomplete work was to be completed at the risk and cost of the contractor. The contractor then instituted the present suit for declaration that respondents/defendants were not legally entitled to cancel the contract and that clauses 50 and 53 of the Cont act Agreement were liable to be struck down as those clauses were entered into the contract by way of terrorum and that they were not entitled to complete the incomplete work at the risk and cost of the contractor.
The contractor further prayed for the grant of permanent injunction restraining the respondents from completing the work of the contract at the risk and cost of the contractor and imposing any penalty due to the non-completion of the work in question. The contractor alleged in this plaint that the time was not the essence of the contract and the delay was solely due to the suspension of the work, change of site, supply of cross-section of the new site after the expiry of more than four months and non-supply of the Deviation Order. It was further alleged that the contractor originally was required to use Burnt Bricks from floor level to roof level and this was so provided in item No, 12 of the Bill of quantity, but the new cross-sections required the contractor to use the Burnt Bricks in the foundation which was also an additional work, necessitating the issuance of Deviation Order as this new item was to cost the contractor further amount of Rs, One Lac. No Deviation Order was issued and the demand for it was finally rejected on 16-1-1975. Thus, according to the contractor, the non-completion of the work was solely due to the conduct and the attitude of the respondents.
The respondents controverted the allegations of the contractor and asserted that the time was of the essence of contract and that the contractor failed to complete the work in time, the contract was validly cancelled and that they were entitled to complete the left over work at the risk and cost of the contractor and that the form of suit is competent.
4. Upon the facts and pleadings of the parties set out above, the following issues were framed:--
(1) Whether the plaintiff has a cause of action?
(2) Whether the suit is not 'competent in its present form?
(3) Whether this Court has got no jurisdiction to entertain the present suit?
(4) Whether the plaintiff is entitled to the declaration prayed for?
(5) Relief.
5. On these issues, the parties produced their evidence pro and contra, on a consideration thereof, save the learned trial Judge, while taking up Nos. 1 and 4 together, came to the conclusion that time was of the essence of contract and that the plaintiff/contractor was at fault for non- completion of the work within the stipulated period and that the contract of the plaintiff/contractor was rightly rescinded and hence the plaintiff/contractor had got no cause of action and he was not entitled to the declaration and grant of permanent injunction as prayed for. However, issues Nos. 2 and 3 were decided against the respondents and it was held that the form of the suit is competent and the Civil Court has got jurisdiction to try the subject-matter of the lis and consequently the suit of the plaintiff/contractor was dismissed on 16-2-1984. The plaintiff/contractor then filed an appeal against the judgment and decree of the trial Court before the District Judge, Abbottabad. The learned Additional District Judge, who heard the appeal, agreed with the finding of the trial Court that the time was of the essence of contract and the delay was not caused on account of negligence and non-co-operation of the respondents. The findings of the trial Court on other issues were upheld. The appeal was dismissed, vide judgment and decree of Additional District Judge, dated 22-11-1984. Hence this revision petition.
6. I have heard the learned counsel for the parties and have also perused the record.
7. It was contended by the learned counsel for the petitioner/contractor that the respondents/defendants and not the petitioner was guilty of preventing the completion of the work in question and as such they could not plead that the time was of the essence of contract. He further contended that the mere fact that in the contract itself time had been mentioned as of the essence of contract would not make it so if simultaneously provision for extension of time in certain contingencies was made in the contract. Thus, according to him, the question whether or not the time is of essence of contract is a question of the intention of the parties which can be gathered from the terms of the contract and the conduct of the parties. He placed his reliance in this context on the case of Pakistan v. Doohi House reported in PLD 1968 Lahore 923 wherein it was laid down that "the question whether or not time is of the essence of contract, is a question of the intention of the parties to be gathered from the terms of the contract. Where there is an express provision that time is of the essence of the contract and at the same time provision of extension of time in certain contingencies and for the payment of a fine or penalty for every day or week, the work undertaken under the contract remains unfinished on the expiry of the time provided in the contract, such provision is inconsistent with time being the of essence of contract and would be calculated to render ineffective an express provision in a contract to that effect. In such a case, it cannot be said that it was intended that time should be of essence of contract".
8. While elaborating his view point, he asserted that though clause 9 of the contract agreement provides that the time as specified in the tender documents or work order would be the essence of contract, yet, side by side, it also provides further extension of time in certain contingencies, such as when the work is suspended, or the work is delayed by reason of authorised extra or addition or variation in the contract or by the delay in delivery by the Government of the stores and the specification. Then a fair and reasonable extension of time for completion shall be made in respect thereof as may be decided by G.F./E.E. And in case the extension of time is not acceptable to the contractor the matter will be referred to C.M.E.S. Whose decision will be final and these provisions in clause 9 are inconsistent with the time being of the essence of contract. The learned counsel for the petitioner/contractor also contends that there are other clauses in the contract which negative the conclusion deduced from clause 9 which predicated that the time was of the essence of contract. He pointed out that even clause 9 itself says that the contractor was bound to suspend the execution of the work or any part or parts thereof whenever called upon in writing by the Engineer-in-Charge to do so and shall not resume work thereon until so directed in writing by the Engineer-in-Charge. In case of restarting of the work, the contractor was to be allowed an extension of time equal to and not less than the period during which the work remained suspended. The learned counsel also referred to clause 7 of the contract in order to show that the accepting officer could deviate from the original contract either by addition to or by deduction from the work. He also pointed out that in accordance with clause 50 of the contract, if the contractor fails to complete the work and clear the site on or before the period fixed for completion, he shall without prejudice to any other right or remedy of Government, on account of such breach be liable to pay as compensation an amount equal to one per cent of the contract sum or of the measured value of the work order for every week that the work remains uncompleted. The aforesaid provisions of the contract agreement as contained in clauses 7, 9 and 50 providing for extension of time in certain contingencies, and providing for the payment of a fine or penalty for 'every day or week work undertaken under the contract remains unfinished on the expiry of the time provided in the contract is inconsistent with the time being of the essence of contract and it would definitely render ineffective an express provision in the contract to that effect. According to the learned counsel to say in one breath that the time would be of the essence of contract but the period provided in the contract may be extended is contradiction in terms; to say that time is of the essence of contract and at the same time to provide the levy of a daily or weekly fine or penalty for non-completion on due date is no less a contradiction in terms and the terms of these clauses clearly indicate that the parties never intended that the time was of the essence of contract. Both the Courts below according to him have not read these clauses properly and have omitted to take into consideration the above clauses in the contract inconsistent with and contradictory to the terms that the time is of essence of contract. In view of the above construction of the various clauses referred to, the findings of the learned two Courts below on issues Nos. 1 and 4 merit interference,
9. Closely allied with aforesaid legal position is the factual position emerging from evidence on record. In this respect, it is pointed out that inference of the learned Courts below to this effect that the defendants/respondents were not responsible for the delay caused in the completion of the work is not supported by evidence. For instance, it is clear enough from the record that right from the very beginning till the rescission of contract the attitude adopted by the defendants was such which rendered not only the completion of the work but even its start as impossible. One comes across the fact, that the contractor made an offer for the work in question on 18-3-1974 which was accepted on 5-4-1974 and then the defendants took a month and 25 days to place the work order on 30-54974 wherein though the period of six months was stipulated for completion of the work but on the next day the work was suspended and actually remained suspended from 1-6-1974 to 21-6- 1974 due to the alleged non-availabilty of site and when the new site was made available the contractor was not provided with any cross-section, drawing and the Deviation Order for the additional work without which it was not possible for him to start the work. Time and again the contractor made repeated demands and requests for the supply of requisite cross-section and the Deviation Order in order to enable him to start the work as valuable time was being lost and the prices of various commodities were rising day by day but in spite of his demands and repeated requests, he was supplied with the cross-section of new site and founation on 4-9-1974 after the expiry of more than four months of the issuance of the work order. The contractor after the receipt of the cross-section pointed out to the defendants by his letter dated 15-9-1974 (Ex. P.W. 1/9), the responsibility for the delay for the execution and completion of the work rests with them as the cross-sections were supplied on 4-9-1974 and consequently a request was made for extension of time of 6 months to start from 4-9-1974 the date on which cross-section was supplied. And in the same letter additional extension of time for three months for additional work was also requested but the defendants granted extension of time for 22 days covering the period during which the work remained suspened and the contractor was asked to complete the work by 21-12-1974 and for the additional work of the late supply of cross-section, it was allowed one month 7 days till 31-1- 1975 instead of 6 months and 3 months. In view of their negligence, this attitude and conduct of the defendants cannot be termed as' co-operative and the extension granted in the circumstances cannot be termed as reasonable. The delay in the supply of cross-section was due to the inaction, laxity and apathy of the defendants. It is obvious that in the absence of cross-section no work could be started, the foundation on the new site could not be excavated before 3-9-1974, therefore, according to the learned counsel for the petitioner, the contractor even according to clauses 7, 9 and 50 of the contract was entitled to further extension of six months starting from 4-9-1974 and for a reasonable extension of time for additional work and thus the defendants are guilty of preventing completion of contract within time and they cannot plead that time was of the essence of contract and that rescission of contract and the completion of left over work at the risk and cost of the contractor is not warranted in law. Both the learned Courts below have reached a contrary conclusion by misreading and non-reading of evidence.
10. The learned Assistant Advocate-General on behalf of defendants strenuously argued that in accordance with the provision of clause 9 of the agreement, the time was of the essence of contract and there is no inconsistency or contradiction in any of the terms contained in clauses 7, 9 and 50 of the Agreement and that the intention of the parties was to make the time as essence of contract. He pointed out that the contractor was given extension of time of 21 days representing the span of time during which his work remained suspended and again he was granted extension of time till 31-1-1975 on the ground of late supply of cross-section and the additional work. The two Courts below according to him have rightly held the time to be of the essence of contract and that the contractor alone was responsible for the non-completion of work in time. And further argued that there is no jurisdictional error and the findings of the two Courts below having been based on evidence are correct in law. He further submits that the finding of the two Courts below that the form of the suit is competent is not correct as according to him a suit for declaration that a contract still subsists is not contemplated under the provision of section 42 of the Specific Relief Act and thus form of the suit is not competent and the finding of the Courts below on issue No, 3 holding the form of the suit as competent is to be set aside and the suit of the contractor is also to be dismissed on this score. He relies on an authority reported in PLD 1965 SC 83.
11. In reply to the above objection, it was argued that the contractor has not sought the declaration that his contract still subsists and that he is entitled to continue and complete the work and for that he is still entitled for the grant of extension of time. The substance of the plaint and his prayer is that the guilt in non-completion of the work lies with the respondents and contract was not validly terminated and as such the respondents should be restrained from completing the left over work at the risk and cost of contractor. According to him, the facts on which the decision of the Supreme Court as reported in PLD 1965 SC 83 rest are quite distinguishable as in that case the plaintiff was only a licensee which was terminated at the will of the parties and which did not create any right in the plaintiff. The contract in question was not capable of being specifically enforced and as such under clause (f) of Section 56 of Specific Relief Act, an injunction could not have been granted. The agreement in the instant case was capable of being specifically enforced and it was not revocable at the will of the parties, a valuable right under the agreement to commence, continue and complete the work had accrued to the contractor who was legally entitled to insist that the respondents should discharge their responsibilities in accordance with the provisions of contract and if the contract is terminated in violation of the provisions of contract then in that case the contractor can seek a declaration that the contract was not validly terminated. The learned counsel for the contractor poses a question that if, in case the defendants had refused to allow the contractor to commence work after the acceptance of his tender and placing work order on him on 4-5-1974, was the contractor debarred from suing the respondents for specific performance of the contract. The answer obviously is in the negative. So, the authority relied upon by defendant's counsel according to him is not relevant and applicable in the instant case. He further argued that issue No, 3 was decided against the respondents by the trial Court. Though the defendants could not have filed any appeal or revision against the abovesaid finding but they could and should have challenged the aforesaid finding in appeal submitted by the contractor by filing a cross-objection to the appeal. Thus, the above-said finding has attained finality which cannot be disputed in revision filed by the petitioner.
12. I have given my anxious thoughts to the contentions raised by the learned counsel on both sides and have gone into the correspondence between the parties and the evidence led by them and have carefully perused the provisions of clauses 7, 9 and 50 of the Agreement. Clause 9 of the agreement makes time as essence of the contract but this clause also provides that the contractor was bound to suspend the execution of the work or any part thereof whenever called upon in writing by the Engineer-in-Charge to do and shall not resume work thereon until so directed in writing by the Engineer-in-Charge. The contractor will be allowed an extension of time for completion not less than the period of suspension. It further provides that if the work is delayed by reason of extra or addition or variance in the contract' or by delay in delivery by the Government from the Stores or by reason of any material being inprocurable, a fair and reasonable extension of time for completion shall be made in respect thereof as may be decided by the G.E./P.E. In case the extension of time is not acceptable to the contractor, the matter will be referred to C.M.E.S. Whose decision shall be final. Similarly under clause 7 of the Contract the accepting officer could deviate either by way of additions or deductions from the work, so described and clause 50 of the terms of contract says that if the contractor fails to complete the work and clear the site on or before the date for completion, he shall without prejudice to any other right or remedy of Government on account of such breach be liable to pay as compensation an amount equal to one per cent of the contract sum or of the measured value of the work order for every week the whole of the work remains uncompleted. Both the Courts below have failed to read the aforesaid provisions of the contract agreement in order together with the intention of the parties as to whether or not they intended to make the time as essence of contract. Notwithstanding the provision that the time was the essence of contract there are other clauses, such as clauses 7, 9 and 50 regarding suspension of work and payment of penalty for the non-performance of contract in time clearly indicate that the parties never intended to make the time as the essence of contract. So, the finding of both the Courts below that the time is the essence of contract which was validly terminated by the defendants is erroneous and is unwarranted in law which is set aside. The finding that the defendants were not responsible for the delay is also based on misreading and non-reading of evidence as also of the relevant clauses of the contract alluded to. It is an admitted fact that the work was suspended after the issuance of work order which remained suspended for 21 days, for non-availability of site. It is again admitted that a Deviation was made in the work order, additional work was to be carried out by the contractor for which the contractor had to be supplied with the new deviation order and new cross section. The respondents took more than four months to do the neeful. The extension of time allowed for the additional work and the delay in supply of cross- section was not reasonable, as without it, the start of work was not possible. The request of the contractor for extension of time for six months starting from 4-9-1974 the date of the supply of cross-section was not granted though he was entitled to such an extension in the above setting of facts. The suit is also competent in the present form as held by the two Courts below and the facts of the authority relied upon by the learned counsel for the respondents are clearly distinguishable from the facts of the instant case. I find no substance in the contention of the learned counsel for the respondents.
13. Resultantly the revision petition is accepted, the judgments and decrees of both the Courts below are set aside and the plaintiff/contractor is granted a decree as prayed for. There is no order as to costs.