1. ' This suit has been filed by the plaintiff for recovery of Rs,91,420.40. The case of the plaintiff is that he and the defendant No,1 had entered into a partnership in the year 1963 and carried on some construction work. It is further the plaintiff's case that the defendant No,1 wanted to set up a multi- storeyed building on the plot owned by hint in Saddar Karachi which was in occupation of some tenants including washermen and to provide alternate accommodation for the washermen the defendant No,1 decided to build suitable 'Dhobi-Ghat' on his another plot situated in Liaquatabad.
2. The defendant Not is then said to have entered into an oral agreement with the plaintiff for construction of the said multi-storeyed building in Saddar and also `Dhobi-Ghat' in Liaquatabad.
3. The two works are hereinafter referred to as the Gadially Building and Dhobi-Ghat. As per the oral agreement it was agreed that the material will be supplied by the defendant No,1 while the plaintiff will execute the work on labour rate basis as per the mutual settled rates. The payment was to be made to the plaintiff from time to time and final bill was to be submitted after completion of the work and then accounts were to be settled and final payment was to be made. According to the plaintiff the entire work was completed in February 1970 which was checked and measured by the defendant No,1 from time to time. Finally on 21-8-1970 the consolidated statement of total work done and its value was prepared which was accepted as agreed by the defendant No,1. The plaintiff claims that after adjusting the amount received by him from the defendant No,1 the suit amount remained outstanding which, in spite of repeated demands the defendant No,1 did not pay and, therefore, the suit is filed. In plaint it is further stated that during the course of construction the defendant No,1 had formed a private limited company, the defendant No,2 and interim payments thereafter were made for and on behalf of the defendant Not against the written receipts and under the directions of the defendant No,1, the bills were drawn by the plaintiff in the name of the defendant No,2.
4. ' The joint written statement was filed by the defendants wherein they contested the claim of the plaintiff. The facts with regard to oral agreement were admitted by the defendants but it was contended that the construction of Dhobi-Ghat was made by the defendant No,1 at his exclusive costs and under his personal management with no labour contract with the plaintiff and that the work of Dhobi-Ghat was completed in the year 1963. The defendants, therefore, claim that the suit with regard to this work was barred by law of limitation. With regard to the work of Ghadially Building the defendants case is that it was agreed that the plaintiff will do the labour work at mutually agreed rates after and above the plinth level and that the plaintiff had done the work of value aggregating to Rs,2,70,647.18 including work shown at S.No,1 to 6 in the consolidated statement submitted by the plaintiff on 21-8-1972 which was verified and accepted. The defendants in their written statement also claim that they have overpaid the sum of Rs,3,00,000 to the plaintiff in excess of the value of the work done by the plaintiff for which the defendants claim that they reserve right to make proper claim. On these pleadings of the parties the following consent issues were framed:-
(1) (a) Whether there was oral agreement regarding construction of Dhobi Ghat at Liaquatabad and whether the said work was carried out by the plaintiff?
(b) If so, is the claim in respect thereof barred by time ?
(2) (a) Whether the consolidated statement referred to in para. 8 of the plaint was accepted ascorrect by the defendant No,1.
(b) If not, what was the value of the work done by the plaintiff?
(3) Whether the defendants paid anything to the plaintiff over and above the amount admitted by the plaintiff? If so what amount?
(4) Whether plaintiff is entitled to recover Rs,91,420.40 as alleged ?
(5) To what relief, if any, is the plaintiff entitled ?
5. ' In this case the plaintiff has examined himself as Exh.5 and he has also examined his Munshi Abdul Qadeer Khan as Exh.6. The suit was thereafter decree ex parte on 26-4-1978 which decree was subsequently set aside and the case was remanded. Thereafter the plaintiff also examined his 3rd witness Abdul Rauf Exk53. The plaintiffs witness Abdul Qadeer Khan has produced a number of documents. The defendant examined himself as Exh.8, and also produed a number of documents.
6. He also examined 3 bank officials namely Maqsood Ahmad Exh.9, Saifuddin Exh.14 and Mir Baz Khan Exh.15 to prove. The payment made to the plaintiff through 5 cheques. I have heard arguments of the learned counsel for the parties and perused the evidence. My findings issue-wise are as under:- ISSUE No,1(a)
7. ' Mr. Waqar Hussain, Advocate for the defendants has submitted that the suit pertains only to work of Ghadially Building and not in connection with the work with regard to Dhobi Ghat. According to learned counsel the burden to prove the oral agreement and its terms and conditions lies on the plaintiff and that the plaintiff has failed to prove the same. It may be observed that the plaintiff in the plaint in paragraphs 5 and 6 has very specifically stated that there was an oral ageement between the parties with regard to construction work of Ghadially Building and Dhobi-Ghat. Of course the defendant in his written statement has contended that oral agreement pertains only to the construction of Ghadially Building and not Dhobi-Ghat which construction was raised by the defendant himself at his exclusive costs and under his personal management. However, the evidence led by the parties show that the work done by the plaintiff included the work of Dhobi- Ghat also. On this point he is supported by his Munshi Abdul Qadeer Khan Exh.8. This Munshi of the plaintiff in his statement has very specifically said that the construction of work of Dhobi-Ghat was carried out by the plaintiff in the year 1963-64 and that expenses incurred were also included in the running bills submitted by the plaintiff. He has further stated that these expenses incurred were also reflected' in the final bill produced as Exh.6/23. The last page of this final bill submitted on 21- 8- 1970 shows the amount of Rs,22,392 which this witness states that the same pertains to the Dhobi-Ghat. This bill also carries the signature of the defendant of the same date acknowledging the receipt of the said bill. The document Exh.6/104 is a photostat copy of the original of this bill showing tick-marks on various items including this amount relating to Dhobi-Ghat work. It is stated by the witness Abdul Qadeer Khan that these tick-marks were made by the defendant himself. The other witness of plaintiff Abdul Rauf Exh.53 who was then Chowkidar in the Land Management Department of K.M.C. Has stated in his evidence that he had seen the plaintiff raising the construction of the said Dhobi-Ghat for which he had made a complaint with the authorities. As against this evidence of the plaintiff there is nothing produced on record by the defendant No,1 except his oral words. He has stated that he had been maintaining the account books but he has not produced the same. Not only this he has also denied having received any running bills from the plaintiff from time to time in spite of the fact that he was served with the notice under Order 12, Rule 8, C.P.C. For production of running bills and account books. This notice was given on 3-12-1989 to which he replied on 14-12-1989 saying that the documents demanded were very old having been misplaced/lost by him. He had also filed affidavit of documents in Court on 16-11-1972 and in the list of such documents at S.No,138 he has mentioned 18 running bills. From the above inconsistencies given in the evidence by the defendant, 1 am of the view' that his evidence does not inspire any confidence as against the evidence given A by the plaintiff and his two witnesses. I would, therefore, answer this issue in affirmative.
8. ISSUE NO,1(b)..
9. Learned counsel for the defendant has vehemently argued that the suit is time-barred as far as the work pertaining to Dhobi Ghat is concerned as admittedly this work was done in the year 1963 and the present suit having been filed in the year 1971, the same would be barred by limitation under Article 56 of the Limitation Act. Article 56 provides for a period of 3 years for filing the suit in such cases from the date of completion of work. As against this Mr. S.M. Sadiq, learned counsel for the plaintiff, has argued that the present case will be covered under provisions of Article 115 of the Limitation Act. Learned counsel has submitted that the starting point for computation of the period of limitation would be from the date when the contract is broken or when it is ceased. Mr. S.M.
10. Sadiq, has submitted that this contract not only included the liability for payment of labour done but also included the price of sand to be used in the work. He has further referred to final bill Exh.6/23 and its photostat copy Exh.6/104 which are dated 21-8-1970 and has submitted that this final bill is to be treated as statement of accounts and therefore, in this case the period of limitation would run from 21-8-1970 and the application having been presented on 11-8-1971 is within a period of one year. It may be observed that the pleadings of the parties do reveal that the construction of Dhobi-Ghat was necessitated because one of the occupants of Ghadially Building, a washerman, had to be accommodated on another plot for which also the contract was given to the present plaintiff aiongwith that of Ghadially Building itself. The oral agreement, therefore, comprises of the two works and final work was completed in the year 1970 for which the final bill was c submitted on 21-8-1970. For this reason I am inclined to hold that the suit is within time. The issue is answered in negative.
11. ISSUES NOS.2. 3 & 4.
12. These issues can be dealt with together. Both the sides have produced their own version of account. The case of the plaintiff accordingly to the, contents of the plaint is that a sum of Rs,91,420.40 is outstanding against the defendant No,1 whereas the defendant in their written statement have contended that they have made an overpaymnet of Rs,3,00,000 to the plaintiff.
13. Even this stand of the defendant is controverted by his own version in the last line of his examination-in-chief as recorded on 13-11-1990. He has stated that "according to my records and my account I have paid a sum of Rs,3,37,581.84 to the plaintiff and such amount according to me involves an extra payment of Rs,58,29533 to the plaintiff. As such I respectfully submit that the plaintiff has no claim on me." It may also be worthwhile to note that in cross-examination he has stated that on account of the death of clerk Azimuddin his accounts were misplaced. He has also stated in his cross-examination recorded on 14-11991. "It is correct to suggest that I had not written in my written statement that I have made overpayment of Rs3,00,000 to the plaintiff. It was about 2 years after the filing of the written statement that I acquired knowledge of having paid amount of Rs,3,00,000 to the plaintiff. This knowledge was acquired from my cheque book and old account books which I traced afterwards." In the same breath he has further stated that he was given the notice to file the accounts but he did not have the accounts book and he had not filed the same.
14. This contention of the defendant is fully contradicted by his version as given in paragraph 13 of the written statement wherein he has asserted that he has advanced to the plaintiff various sums in all aggregated to about Rs,3,00,000 in excess of the value of the work actually done by the plaintiff. As pointed out earlier the evidence of the defendant No,1 shows that he was in the knowledge of possession of running bills submitted to him by the plaintiff from time to time which fact he has also mentioned in the affidavit of documents but yet in his cross-examination he has denied having receipt of such running bills and said that it was only after filing of the suit that he came to learn about the running bills. The defendant No,1 has also produced certain receipts showing the payments allegedly made to the plaintiff. These receipts are Exhs.8/1 to 8/56. The said receipts are alleged to have been signed by the plaintiff but the plaintiff has not been confronted with the said receipts or his signature thereon. In such circumstances these receipts cannot be said to have been proved by the defendant. These receipts are said to have been written by defendant's clerk Muhammad Hanif who is also not examined. These receipts also included the receipts Exh.8/2, 8/22, 8/23 and 8/29 which the defendant admittedly included in his account book as having been paid to the plaintiff but the account book has not been produced in Court. In his cross-examination the defendant admitted that the amount shown in receipts Exhs.8/2, 8/23 and 8/29 are included in the running bills. The inference, therefore, would be specially. When such account books and original running bills are not produced bills by the defendant that the amounts of these receipts were included in the and, therfore, these amount were not paid in addition to that of running bills. As regard to final bill Exh.6/23 the original is with the defendant which has obviously been suppressed by him. Exh.6/23 is a carbon copy which bears the signature of the defendant No,1 in token of having received its original. Defendant No,1 in last line of his cross-examination recorded on 5-12- 1990 states "at the relevant time, I work out the figure which was found payable to the plaintiff but on this point of payment, I do not have the details of the same but I can give the figure as Rs,2,79,286.51." He has also at earlier stage in cross-examination stated "the course of practice adopted between us was that the plaintiff used to give Katcha bill to us and then we would sit together and set the accounts but I do not remember as to what was the number of these Katcha bills". From this statement of the defendant it is clear that he had been receiving the bills and he had been working over the same with the plaintiff to settle the amount but he has deliberately suppressed the same and did not produce the original bills in Court as the only inference that can be drawn is that these bills might have contained the noting of the defendant No,1 which if produced in Court would go against him. Lastly the learned counsel for the defendant has submitted that there were certain amounts paid to the plaintiff through four cheques which were produced through the officials of the bank. These cheques are exhibited as 10 to 13. Of course these, cheques are issued in the name of Abdul Latif but all the four cheques e bearer cheques which could have been encashed by any one.
15. ' Thebank officials examined by the defendant No,1 state that they do not know Abdul Latif and it cannot be said if the cheques were encashed by the plaintiff.
16. From the above discussion I am of the view that the evidence given by the defendant No,1 would not inspire any confidence. As against this the plaintiff's case has been thoroughly corroborated by the evidence of his Munshi and Chowkidar of Land Department of K.M.C. The learned counsel for the defendant has vehemently argued that these bills of the plaintiff included costs of material and certain other additional items which do not pertain to the D contract in suit. It may be observed that the plaintiff's Munshi Abdul Qadir Khan in his evidence has stated that the material was to be provided by the defendant No,1. He has also stated that it was settled between Mr. Ghadially and the plaintiff that the construction material would be purchased by the plaintiff on behalf of the defendant. This witness also in cross-examination has stated "I see my examination-in-chief in which I had stated that the material was to be provided by defendant No,1 and say that it is correct that the material was to be provided by defendant No,1 but nevertheless if any material fell short while the work was in progress, the plaintiff had authority to make necessary purchases immediately so that the work should not suffer. " Even the defendant No,1 himself has admitted in case of certain items like price of cement, payment of chungi etc. That such payments were made by him. This fact goes to show that in certain eventualities the plaintiff could have purchased the material if so required. As regard to extra and additional work the defendant Not himself admitted in his cross-examination that he had got some additional work done with regard to Barber shop in the said building for which the payment was made to the plaintiff, In view of the above discussion I am inclined to accept the version of the plaintiff and hold that the plaintiff is entitled to payment according to final E bills Exh.6/23 after deducting the amount received by him, he would be entitled to recover the suit mount as claimed.
17. ISSUE NO,5.
18. In view of the findings of the above issues the suit of the plaintiff is decreed as prayed with costs.