' MUNIR A. SHEIKH, J.---This appeal is directed against judgment and decree dated 23-7-1992 passed by the learned trial Court through which suit filed by the respondent for recovery of an amount of Rs,7,79,720 with costs has been decreed.
2. The facts of the case shortly stated are that the plaintiff who is an approved contractor of the appellant according to the averments made in the plaint was awarded contract for repair/special repairs to roads works in the section of I.O.W/South, Mughalpura, on 2-9-1986. The rates for bitumenous premix carpeting which was required to be done were settled between the parties with reference to Composite Schedule of Rates of 1979. The case of the respondent as disclosed in the plaint was that in addition to the said work the appellant also got executed the additional work of the seal coat for which no rates were given therefore, the respondent was entitled to recover an amount of Rs,7,79,720 for the said additional work for an area of 1,94,930 sq. Ft. Calculated at the rate of Rs,400 per sq.Ft.
3. The suit was resisted by the appellant. It was denied that any additional work of seal coat was got done at the spot by the appellant and whatever original work regarding bitumenous premix carpeting regarding which the contract work was given was executed, payment of the same had been received by the respondent in full. Preliminary objections were raised regarding maintenance of the suit inter alia; on the ground that respondent/firm had not been registered as also that the suit was barred by time.
4. The learned trial Court reflected the controversies arising from the pleadings of the parties in the following issues framed by it:---
(1) Whether the suit is not maintainable in view of Section 69 of the Partnership Act? O.P.D.
(2) Whether the plaintiff has no cause of action? O.P.D.
(3) Whether the suit is barred by time? O.P.D.
(4) Whether the suit is bad for misjoinder of cause of action and same is not maintainable in its present form? O.P.D.
(5) Whether the suit is bad in view of preliminary objections Nos3 to 11 of the written statement?
O.P.D.
(6) Whether the plaintiff is estopped by his conduct from filing suit? O.P.D.
(7) Whether the suit is false and frivolous? O.P.D.
(8) Whether the plaintiff is entitled to recover the disputed amount from the defendant? O.P.P.
(9) Relief.
5. In support of its case in affirmative evidence the respondent examined Zulfiqar Ali Shah, Head Clerk Litigation Office of the D.N. Workshop Pakistan Railway, Lahore as P.W.1, Muhammad Anwar son of Ch. Muhammad Shafi an Engineer was examined as P.W.2, Nasir Ahmad son of Abdur Rehman as P.W.3 Respondent Mian Muhammad Salim/plaintiff examined himself as his own witness as P.W.4.
6. The documentary evidence produced by the respondent are Exhibits P.1 to P.57.
7. As against this the appellant in defence examined Jameel Ahmad Sheikh, Assistant Director, Procurement, Pakistan Railway as D.W.1, Zia-ulQamar, Deputy General Manager, Pakistan Railway, Lahore as D.W.2, Documentary evidence produced by the appellant consists of documents from Ext. D.1 to Ext.D.59.
8. Since issue No,8 was the crucial issue and the decision regarding entitlement of the respondent to recover the sued amount revolved around the decision on this issue therefore, the learned trial Court rightly gave preference to the said issue and decided the same in the first instance. After examining the evidence of P.W.1 to P.W.4 which was found to have received corroboration from the statement of D.W.1 and from the Ext.P.56 through which L.D.A. Got the work of bitumenous premix carpeting which included the seal coat as necessary part of the same and that from Ext.P.45 and that in Ext.P.45 the appellant/defendant had conceded that the rates of seal coat were included in the rates given to the contrator for the original work from which it was implied that the work of seal coat had been done, it was held that the respondent was entitled to the recovery of the sued amount for the work of seal coat at the rate of Rs,400 square feet.
9. Issue No,1 was answered against the appellant as neither any evidence was led nor the same was discussed during the arguments. Under issue No,2 it was held that since the respondent/firm was found to have executed the work of seal coat for which the sued amount was refused to him therefore, the firm had the cause of action and locus standi to file the suit. The issue was thus decided against the appellant. Under issue No,3 it was held that the suit was not barred by time as the same had been brought within the time prescribed by law from the date of the refusal of the sued amount to the respondent. Regarding issues 4 and 5 it was held that no evidence was produced by the appellant therefore, they were answered against it.
10. Issue No,6 was also decided against the appellant. It was held that since the respondent signed the certificate in the measurement book at the time of payment of final bill under coercion and strain therefore, he was not estopped from claiming the sued amount as principle of estoppel in such circumstances was not attracted because had he not signed the said final bill he would not have been made the payment even regarding the work which was originally awarded to him and executed by him. Issue No,7 was also answered in favour of the respondent for under issue No,8 he was held to be entitled to the sued amount. As a consequence of this finding the suit was decreed for an amount of Rs,7,79,720 with costs. The grant of interest at the rate of 14% per annum was refused on the sued amount on the ground that the same could not be allowed in view of the judgment of Hon'ble Shariat Bench of Supreme Court of Pakistan, through decision dated 23-7- 1992.
11. We have closely examined the oral as well as documentary evidence produced by both the parties with the assistance of the learned counsel appearing for the parties. Zulfiqar Ali Shah P.W.1 merely produced the documents from Exh.P.1 to Exh.P.40 which according to him were the copies of the documents present on the official record. In the cross-examination he admitted that none of the original documents of which the said copies had been produced were signed by him and the officials who had signed the same are still in service of Pakistan Railways and if summoned could appear before the Court. He admitted that be did not know about the facts of the case.
Muhammad Anwar P.W,2 who is an Engineer by profession stated that he knew the plaintiff/firm. He did B.Sc. In Engineering in 1965 and worked in WAPDA as its employee for 15 years. According to him he had experience regarding construction work also. He claimed to have seen the work done by the respondent/firm which consisted of roads of workshop and adjacent area. According to him he examined the work in 1987 and found that the said roads were in very good condition and carpeting had been done over which seal coat had also been done. He stated that if the seal coat had not been done the roads would not have been smooth and it was necessary to be done to make the roads water proof and with this the life of the roads was enhanced. He stated that some departments while giving contract for carpeting also include in it work of seal coat in which case the rates for both were to be quoted and in case the work of carpeting had been awarded, the rates for seal were to be quoted separately. In cross-examination he was unable to give the date and the day on which he inspected the roads and also could not give the names of the roads which according to him he inspected. He could not also state the number of roads which he inspected. He admitted that he did not execute any work in Lahore Region. He further stated, that he executed the work of construction for roads and their repairs in Highway Division, Bahawalpur and also on National Highway. He admitted that on the work order given to respondent, there was no order for seal coat. He admitted that no official of the appellant department asked orally to respondent to execute work of seal coat in his presence and he was told by the respondent that he had been asked to execute it. He admitted when suggested that whatever work a contractor was to execute the same was to be entered into the measurement book to be signed by the contractor as also an officer of the railway and payment of only that work was to be made which was entered in the measurement book and the amount was to be calculated for the work mentioned in the measurement book. He went on admitting that whatever additional work was to be done apart from the work mentioned in the work order addendum slip was to be usually issued or revised slip was to be prepared and that for the said additional work the sanction from the higher authority was to be obtained. He also admitted that for the additional work supplementary work" order was to be issued. He also conceded that at the time of receiving payment the Contractor usually gives certificate that he had no outstanding claim but stated that he could in spite of such certificate claim further payments. He denied suggestion that he did not inspect the work done by the respondent.
12. According to evidence of P.W.3 if any item had not been included in the tender XEN could orally get the said item done at the spot and the payment of such an item, could be made after the completion of the documents which was to be done by the department. According to him payment for such additional item could be made even after the final payment of the original work granted. In the cross-examination he stated that even after the completion of the work of an additional item the work order could be issued. He admitted that whatever additional work was to be done it was to be included in the measurement book which was to be signed by the contractor and the representative of the department and the amount for such work was to be calculated according to the entries in the measurement book. He admitted that for additional work addendum slip was to be issued and no payment was to be made for any work which was not mentioned in the addendum slip or the work order.
13. Mian Muhammad Salim proprietor of respondent/firm stated that it was sole proprietorship Firm and Javaid Nasim was its sole proprietor and he appeared as his attorney. According to him the original work was done in the financial year 1986-87 of which last payment was made on 17-1-1987 and the work was with regard to bitumenous premix carpeting. He stated that item of seal coat was not included in the agreement but the department got the same done at the spot as according to terms and conditions of the ageement a contractor was bound to execute the work of additional item if asked to do so by the Engineer Incharge. According to him he was not given payment for the said additional work of the seal coat which was not scheduled item and its rates as such were not included in the schedule. According to him the department had been assuring him for making payment of the said additional item but he was not paid at the time of payment of the final bill of the original work and thus was constrained to file the suit. He admitted that his own personal suit is pending in another Court against Railway. He admitted that Zia-ul-Qamar DEN, Sh.
Jameel A.E.N. And Ch. Siddique I.O.W who got the additional work of seal coat done orally were all alive and serving in the Railway but he did not summon them as witnesses. He admitted that a case was registered by F.IA. Against the respondent for defective work of carpeting but denied the suggestion that the suit had been filed as a counterblast to the said case. He admitted that the department wrote letter to respondent/firm to remove the defects and the respondent/firm subsequently was blacklisted. He stated that he asked the department to prepare the addendum slip for the additional work. According to him the tender was executed on 2-9-1986 and the work was completed on 17-1-1987 and final payment was made on 17-1-1987. He admitted that the respondent/firm did not raise any objection at the time of preparation of fmal bill and regarding entries in the measurement book. He however volunteered that had any objection been raised even the payment for the original carpeting work would not have been made.
14. It is common ground between the parties that the original work of bitumenous, premix carpeting was awarded according to schedule of rates of 1979 which did not provide seal coat being the part of the said original work but as against that the work of seal coat was provided separately as an independent item which meant that if the seal coat work was required to be, done for that a separate independent contract in addition to the work of premix bitumenous carpeting was to be awarded which required that the tenders should have been invited.
15. The learned trial Court appears to have been influenced by the fact that subsequently in the composite schedule of rates of 1990 the department included the item of seal coat in the original work of bitumenous premix carpeting which according to it was admission of the fact that it was necessary to improve the quality of the road, that D.W.1 Jameel Ahmad admitted that the riding quality of the road was better and surface of the road was smooth and waterproof and that L.D A.
Through Ext. P.56 got similar work done which included the item of seal coat also and that in Ext.P.45 the department stated that the original work of carpeting included the work of seal coat, for holding that the seal coat work was in fact got done which was also actually done instead of basing the finding on the evidence of the respondent/firm itself.
16. Issue No,6 regarding estoppel has been decided on the assumption that the respondent under coercion and strain signed and received the final payment against the final bill. As discussed above, P.W.2 could not satisfactorily give the names of the roads which he allegedly inspected and was also unable to name the person/official with whose permission he entered the workshop. He admitted that even for additional work if got done addendum slip was to be issued and the entries in M.B were to be made for such work which was to be signed by the contractor as also the representative of the department. We are at a loss to understand as to how the learned trial Court relied upon this evidence to hold that the respondent through his evidence had succeeded in establishing that the seal coat work had in fact been done. His evidence according to our assessm ent does not inspire confidence and establish that the seal coat work was either done or the same was got done at the spot by the competent officials of the appellant. Evidence of Nasir Ahmad P.W.3 was also of no avail to the respondent as he was stating in general terms that XEN at the spot could get the additional work done. He was not a witness of any such incident as admittedly XEN in his presence did not ask the respondent to do the additional work of seal coat.
He admitted that whatever additional work was to be done the entries regarding the same were to be made in the measurement book which was to be signed by the representative of the department as also the contractor. The respondent failed to bring any evidence on record that any addendum slip was ever issued for the additional work of seal coat or that he was asked by the XEN Incharge of the work for doing the seal coat. Mian Muhammad Salim who appeared as attorney of the respondent admitted that he did not summon Zia-ul-Qamar, Sh. Jameel and Chaudhry Siddique who according to him asked him to do the work of seal coat as witnesses. Ext. 45 on which reliance has been placed by the trial Court to find out justification for decreeing the suit is a document which is not relatable to the respondent/firm. It was produced as Ext.P.2 in another suit filed by Mian Muhammad Salim personally as sole proprietor of a firm (who in the present case has appeared as attorney of the respondent) for recovery of an amount of Rs,93,000 which is pending in another Civil Court. In this document it appears, the department on 20-10-1987 declined to accept the plea of Mian Muhammad Salim for making extra payment for seal coat separately saying that in item No,10 Chapter 18 of Composite Schedule of rates of 1979 seal coat was covered by premixed carpet. In our considered view this statement could not be construed as an admission of the part of the department in any manner that additional work of seal coat had been given to the contractor or that the contractor had in fact done the said work. Through this the department reiterated its stand that in a case of premix carpeting the purpose of seal coat was also served as quality of roads of premix carpeting was by itself improved and no seal coat was required to be applied separately. This is apart from the fact that the said plea raised in the said document by an official of the railway even if could be construed to be an admission that seal coat word as additional work had been awarded and executed, the same could still to be proved to have been made erroneously against the facts or even in collusion with the party interested, by the said officer in the said suit. The same was produced in another suit and is not an admission if any in favour of the respondent in this appeal as no such letter was written to him by the railway. It was an admitted fact that bituminous premix carpeting was a separate item from seal coat therefore, contracts for both were to be granted independently and in this case it was nobody's plea that alongwith the work of premix carpeting the work of seal coat was also awarded. The respondent failed to produce any independent evidence to establish that in fact work of seal coat as an additional work was got done by the department. No addendum slip was admittedly issued to the respondent nor any order was issued separately to confirm the oral order as alleged for seal coat.
No entries in measurement book was made of the said additional work of seal coat. Merely because L.D.A. While granted contract for bitumenous premix carpeting also included in the order granting the contract, the item of seal coat also for which the contractor was made the payments was no ground to raise inference that the Railway would have also got the said work of seal coat done.
16-A. Likewise, if any of the witnesses of the respondent as observed by the learned trial Court stated that the quality of the roads constructed by the respondent were excellent and upper surface was smooth was not in itself evidence of the fact that the work for seal coat was got done or the same had been done in fact.
17. Reverting to the question of coercion and strain under which allegedly the respondent was compelled to receive the payment of the final bill without raising objection regarding payment of seal coat work also it may be mentioned here prominently that the respondent did not plead any such fact in the plaint. Even in his examination-in-chief Mian Muhammad Salim the attorney of the respondent did not state that the respondent was compelled under coercion and strain to receive the payment against the final bill under the threat that if he would decline to receive the same and raise question of payment for the work of seal coat the same would be withheld. It was only to a question in cross-examination when asked that he had received the payment against the final bill for the work of carpeting without raising any objection he volunteered that had he, raised such an objection at that time the payment even of the fmal bill would have been withheld. We hold the reasons given by the learned trial Court for deciding issue No,6 against the appellant are plainly unsound inasmuch as no case of coercion and strain had at all been made out. It was eminently a fit case in our view to press in service the principle of estoppel as also to raise strong inference from the factum of receiving payment of the final bill without raising any objection regarding work of seal coat that in fact no such work was got done or done at the spot for had it been so done, he would not have received payment against the fmal bill or at least would have raised objection for non-payment of the same or could have received the payment under protest as according to the terms and conditions of the contract (Clause 17) the Contractor could receive payment of those items about which there was no dispute under protest and keep the question of payment regarding disputed items open, for decision by the department. Merely because it was necessary to make the road water proof and its riding quality better that the seal coat was to be done on the bitumenous premix carpeting it could not be assumed that such a work must have been awarded as such unless there was positive evidence to that effect to establish the said fact. The argument of learned counsel for respondent based on this reasoning as also a book written by Gar Charan Singh according to whose opinion in premix bitumenous carpetting if seal coat was not done the same would not have made the surface of the road smooth and improved its riding quality or that it would not make it waterproof is no ground to hold that contract for the same must have been awarded for it was for the department to grant the contract for it or not particularly when such an item was independent item in the schedule.
18. Learned counsel for the respondent/firm placed reliance on section 70 of the Contract Act in support of his submission that the respondent should be compensated for the additional work of seal coat, the benefit of the same having been enjoyed by the Railway even if the work for the same had not been granted but it was admitted to have been done in the comments filed by the department before Wafaqi Mohtasib. Section 70 of the Contract Act, reads as follows: -- "Section 70.--Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.".
The essence of the principle laid down in this section is that the person against whom claim under this section is to be raised was in a position either to restore the thing done in case he intends not to pay the compensation for anything done or delivered to him which means that such a person must have control over the user/enjoyment of the thing done by the other. Keeping this principle in view the nature of work allegedly done in this case, i,e, seal coat was such over the enjoyment of which the Railway Department had no control for the same was to be used by public-at-large particularly of the area and in case the appellant wanted to exercise the choice of restoring the said benefit to the respondent it was not possible to do so as seal coat was not an item which could be separated from the road and restored to the respondent, which according to our opinion does not stand proved. The rule laid down in judgment reported as State of West Bengal v. M/s. B.K.
Mondal and Sons AIR 1962 SC 779 in the facts and circumstances of this case is not applicable inasmuch as instead of enjoying the benefit of a thing done i,e, construction of warehouse the same could be asked to be removed being a separable item. The argument that in the comments submitted before the Wafaqi Mohtasib (Exh.P.41) it was admitted by the Railway Department that seal coat work had been done, it may be observed that the same is wholly fallacious as the said comments if read as a whole do not make out a case of any such admission. In these comments in the first two paragraphs it was specifically stated that the claim of the respondent was false as the original work was objected to by the department, the same being defective and he was asked to rectify it. In paragraph 3 in reply to the plea raised by the respondent in his complaint that he had done seal coat work on the asking of the competent officer and the respondent it was stated that the respondent had raised baseless claims for the payment of so-called seal coat whereas he laid only a thin layer of sand and bitumen (premix) over the carpeting to conceal the deductive work and raised a claim for payment of seal coat, when he was asked to rectify the discrepancies in the original work. According to firmly settled law the statement as a whole is to be read in order to decide whether the same did constitute an admission of a fact which is also required to be made in unequivocal terms expressly and should also to be unqualified. The statement that a thin layer of sand and bitumen premix was laid over the carpeting could not be taken out of the entire body of the comments and used as an admission in isolation and held to be unqualified and express admission of the fact that in fact order for seal coat was given and the same had been carried out.
18-A. It may be pointed out that before the trial Court the respondent made an application for appointment of a Local Commissioner for inspection of the roads on the point of seal coat which was not pressed and withdrawn. Learned counsel for respondent stated that the said application was withdrawn because in the meantime the department in the comments filed before the Wafaqi Mohtasib had admitted that seal coat work had been done. There is no such indication given in the order of the learned trial Court regarding the statement of the learned counsel for respondent for withdrawal of the said application. An inference can safely be drawn against the respondent that had local inspection been carried out the report would not have been in his favour.
19. Before parting with this part of the judgment, it will not be out of place to mention here that according to special conditions of contract as contained in Exh.D.7 the contractor was required to enter in the written agreement and sign the same for additional work and each work order was to be treated to be a separate agreement. According to Exh.D.33 for additional work a supplementary order was issued for which payment was made. The respondent should have insisted on the issuance of formal work order even if the same had been executed as additional work on the asking of an official at the spot which was not done. It may be mentioned here that according to respondent the work was awarded on 2-9-1986 which was completed on 17-1-1987 and final payment was also made on the same date whereas the suit was filed on 27-7-1987. The maintenance period of one year had not expired within which the department could certainly raise objection, if any defect had appeared within the said period regarding the work done which was raised. Exh.P.1 is a tender notice, Exh.P.2 is a copy of bill of contractor and Exh.P.2-A is also a copy of bill dated 13-1-1987 which shows that no claim was raised for seal coat. Exh.P.3 to Exh.P.23 are bills of contractor's for remaining works from which it is also manifest that no claim for seal coat had been raised. Exhs.P.24 and P.25 are relatable to acceptance of tenders which did not contain any reference to seal coat. Exh.P.26 is copy of letter dated 27-6-1987 issued by the respondent regarding seal coat before filing the suit. Exh.P.27 is copy of letter dated 20-11-1987 from DEN to respondent that the work was substandard which should be rectified otherwise the firm would be blacklisted. Exh.P.28 is the copy of letter written by respondent to DEN in response there to undertaking that the defect would be rectified. Exh. P.29 is also a copy of letter from DEN to the Contractor on the same subject. Exh.P.30 is copy of the envelope and Exh.P.31 a copy of letter written by the respondent to DEN on the same subject.
20. Copy of report to F.IA. Exh.P.43 for registration of case and copy of F.I.R. Exh.P.44 regarding this work and in particular for encashment of security are not much relevant for determination of the real question of controversy. Exh.P.45 is a letter written to Mian Muhammad Salim regarding his own dispute which has already been discussed. Copies of bills from Exh. P.46 to Exh.P.55 have also no direct relevancy to the controversy in question as the same relate to some other works of the year 1982. Copy of acceptance letter dated 7-12-1987 Exh.P.56 is also of no avail to the respondent so far as the main controversy is concerned.
21. For the foregoing reasons, we hold that the findings recorded by the learned trial Court on issue numbers 6 and 8 are based on no evidence, misreading and misconstruction of the material produced in evidence as such are not sustainable. They are reversed.
22. The findings on other issues in our view do not require any interference as they have not been shown to have suffered from any legal infirmity. Merely because a contractor was required to submit demand within seven days could not render the suit barred by time as the suit was filed within prescribed period of limitation from the date of accrual of cause of action. In G this case the contract was awarded on 2-9-1986 which was completed on 17-1-1987 and the slit filed on 27-1- 1987 could not be held to be barred by time. Learned counsel for the appellant has not been able to persuade us that findings on the other issues, are not sustainable on any ground which are hereby upheld and confirmed.
23. The upshot of the above discussion is that the appeal is accepted with costs. The judgment and decree passed by the learned trial Court is set aside and the suit dismissed.