' ALI HUSSAIN QAZILBASH, J. ---This appeal by leave arises from the judgment of a learned Division Bench of the Peshawar High Court dated 24-5-1983.
2. The facts are that the appellant, a Government contractor, entered into a contract with the ex- Wali of earstwhile Swat State on 31-3-1969 for the sale of 1,383 trees of Fir and Kail, equivalent to 3,83,020 c.Ft. The price of the trees was alleged to have been paid to the ex-Wali.
3. After the falling of the trees the Divisional Forest Officer conducted an enquiry and found that the appellant exported 18,025 c.Ft. More than the volume allowed to him under the contract.
Accordingly the appellant was directed to pay the amount of the excess wood amounting to Rs,1,04,953. Though the stand of the appellant was that in the terms of the contract he was entitled to the entire timber including 18,025 c.Ft. Alleged to be in excess of the estimated volume, yet he deposited a sum of Rs,1,04,953 under protest. He simultaneously filed the present suit for the refund of Rs,1,04,953 on the ground that according to the contract executed on 31-3-1969 the appellant was also entitled to export in excess of the estimated volume.
4. The suit was contested and the stand of the respondents was that according to the terms of agreement the appellant was allowed only to export 1,383 trees equivalent of 3,83,020 c.Ft. S. The pleadings resulted in the framing of number of issues of which issue No,7 is relevant and is to the effect:-- "Whether the plaintiff is entitled to the decree as prayed for in the plaint?" OPP ' The learned Senior Civil Judge Swat recorded the evidence of the parties and ultimately decreed the suit of the appellant for the recovery of a sum of Rs,1,04,953 vide judgment dated 21-12-1978.
6. The respondents feeling aggrieved by the judgment and decree of the trial Court filed an appeal in the High Court which was allowed as per the impugned judgment.
7. We have heard the learned counsel for the parties and have gone through the record. According to the agreement executed between the ex-Wali of Swat, now succeeded by the Government of Pakistan and the appellant on 31-3-1969, the latter was to export 1383 trees equivalent to 3,83,020 c.Ft. Wood. The appellant as per para. 4 of his plaint has admitted exporting 18,025 c.Ft. Wood in excess of the estimated volume but has claimed that according to clause 2 of the contract he was entitled to the same and that its price had already been paid to the Wali of Swat. His case further is that since the wood was of poor/bad quality, the disputed amount should have not been claimed and recovered from him. The case made out by the respondents, however, is that the appellant exported the excess wood in violation of the agreement and thus was liable to pay the price thereof.
8. As the case stands, we are of the view that the case built by the appellant has no legs to stand upon. According to the contract the appellant was to export only 1,383 trees equivalent to 3,83,020 c.Ft. Wood. The appellant has admitted that he has exported 18,025 c.Ft. Wood in excess and therefore he is bound to pay its price because there is nothing in the contract that the appellant will be entitled to export wood in excess of 3,83,020 c.Ft. There is absolutely no evidence on the record that the appellant has paid price of excess wood to the Wali as alleged by him in para. 4 of his plaint. The contention of the learned counsel for the appellant that the respondents had no right to recover a sum of Rs,18,874 on account of 'extension fee' because no demand was made at the time when the extension was allowed, would not prevail because this plea was not at all raised either in the plaint or in the grounds of appeal before us.
9. The view therefore that we take in the matter is that this appeal has no merits and is dismissed with no order as to costs.