M. JAVED BUTTAR, J. Respondent's suit against the appellants for the recovery of amount of Rs.1,04,575/- (Rs.78,375/-) as the amount of security, Rs 18,000/- as earnest money and Rs.82,00/- as interest) alongwith interest at the rate of 10% per annum from the date of institution till the payment of the decretal amount was decreed by the learned Civil Judge, 1st Class Bahawalnaghar, vide his judgment and decree dated 6th of October, 1992. Hence, this appeal.
2. The facts relevant for discussion of this appeal are that respondent was an approved Government Contractor, and as a result of acceptance of his tender on 22.11.1986 .By defendants/appellants, he undertook the work of reboring of five tubewells No: MA-42,MA-3,MA- 57,MA-68 and MA-100, and according to the terms and conditions of the contract, he deposited a sum of Rs. 18,000/- as earaestr money with defendant No. 2, and the amount of Rs.78, 375/- was deducted from different bills of the plaintiff as security by defendants No.2 and 3, and these amount of earnest money and security were to be paid to the plaintiff within 3- months of the completion of the work. After the completion of the work, according to the contract, his work was found satisfactory, and the final bill was paid to him on 3.6.1987,except the above said amounts were to be paid to him after three months of the completion of work. On expiry of three months, plaintiff approached defendant No. 3 on 13.10.1987 for releasing the amounts of security and earnest money, but the said amounts were not paid to the plaintiff without assigning any reason. It was also alleged in the plaint that in the year. 1988 an amount of Rs.6000/- was deducted by defendants No. 2 and 3 from the amount of security without intimation to the plaintiff. Plaintiff also served a Legal Notice upon the defendants to make the payment of the said amount but without any result. Defendants contested the suit, and averred in the written statement that the plaintiff received an excess amount of Rs. 1,06000/- against the remaining bill, and as such, the plaintiff was liable to refund the amount, and a plea of set of was also raised by defendants in the written statements. In the replication, plaintiff has pleaded that he did not receive any excess amount from the defendants, and that the payments made to the plaintiff were strictly in accordance with the contract, and prayed for the rejection of the plea of set of. The trial court out of the pleadings of the parties, framed the issues mentioned below:
(1) Whether the plaintiff has not come to this court with clean hands? OPD
(2) Whether the plaintiff has got no cause of action to bring this suit?OPD.
(3) Whether the plaintiff is estopped to bring this suit? OPD
(4) Whether the suit is based on malafide, and.The defendants are entitled to special costs? If so, to what an extent? OPD
(5) Whether the suit is bad, and is not maintainable? OPD
(6) Whether the plaintiff has already received the amount of Rs. 1,06,000/? In excess from the defendants, and the defendants are entitled to recover the same from the plaintiff as set of? OPD
(7) Whether the plaintiff is entitled to recover Rs. 1,04,575/- from the defendants as prayed for?OPP
(8) Relief.
3. Plaintiff examined four witnesses, and also produced the documentary evidence (Exh.PI to P8).
Defendants examined two witnesses, and also adduced the documentary evidence (Exh.Dl to D8).
Trial court found all the issues against the defendants, and rejected the claim of the defendants for set of, and decreed the suit of the plaintiff with costs to the effect that the plaintiff was entitled to recover the suit amount to the tune of Rs. 1,04,575/- plus interest 10% per annum from the date of the institution of the suit till the realization of the decretal amount from the defendants 2 and 3.
4. With the assistance of the learned counsel, we have gone through the relevant record, the judgment and decree and have heard them at length.
5. Plaintiff Muhammad Akhtar, proprietor of the firm as PW4 has deposed in support of its claim that he performed his obligation under the contract satisfactorily, as a result .Of which, payment of final bill was made to him on 30.6.1987, and that after Re lapse of three months from the date of making final payments, defendants No. 2 and 1 were hound to refund the amount of security and earnest money to him, and that the payment had been withheld without any justification. He further stated that defendants No.2 and 3 had deducted the amount of Rs.6000/- from the amount of security belonging to the plaintiff without any intimation and without any reason. He also deposed that he had not received any excess amount and that as per tender, charges for the transportation of equipments and machinary were uot the liability and responsibility of the plaintiff/contractor, rather it was altogether a separate item with separate rates, and accordingly, a separate tender was invited for the aforesaid purpose. Had he been told that the cost of transportation charges was his liability, the plaintiff would have included the amount of transportation charges in his tenders.
6. Muhammad Naeem, Divisional Accountant, Fordwah Division, Bahawal Nagar appeared as PW-1 and deposed that before deducting the amount of Rs. 6000/- from the amount of plaintiff's security, he was not given any Notice by the Irrigation Department, and that the amount of earnest money and security are due to the plaintiff and outstanding against the defendants.
7. PW-2 Muhammad Siddique, Overseer, Fordwah Section stated that he had prepared the correct bills, and the same were accurately paid according to the sanctioned fates. He further submitted that the plaintiff's work was satisfactory, and PW2 had issued the completion certificate.
8. Ghulam Farid, Sub/Engjneer appeared as PW3 and affirmed that the bills for payment to the plaintiff were prepared correctly, and that the plaintiff performed his job to the satisfaction of defendants No. 2 and 3.
9. According to the copy of estimate for re-boring the damaged tubewells (Exh. PI), the estimated transportation charges of equipment and boring rigs etc per tubewell are Rs. 20,000/-. Exh.D8 a copy of the Comparative Statement of tenders received on 14.10.1980 also indicates the rate of transportation charges as Rs. 20,000/-. Exh.P5 is a copy of the letter from the Chief Engineer Irrigation Bahawalpur addressed to the Sub/Ehgineer Bahawalnagar and a copy whereof endorsed to the plaintiff to the effect that the Chief Engineer had approved the tenders of the plaintiff for re- boring of four damaged tubewells. Exh.P4 is an other copy of the letter showing that the plaintiff was entrusted the job of re-boring one more tubewell, and the plaintiff's tender, which was approved by the Chief Engineer did not indude the transportation charges, and the plaintiff was accordingly rightly granted an amount of Rs. 20,000/- per tubewell as transportation charges.
10. The contention of the defendants is that amount of Rs. 20,000/- per tubewell as transportation charges cannot be granted to the plaintiff, as it was his responsibility to bear the charges of transportation of equipment etc. Such plea taken up by defendants is not supported by any evidence, and even in the Comparative Statement Exh.D8, the amount of transportation charges is shown as a separate item with the clarification that it would be Rs. 20,000/- for each tubewell Apparently, the Myjaent was stopped by defendants on some audit report, to which, the plaintiff was lever ailflffeitedl Tbp, alleged audit report is Exh.Dl, which shows that it is a page of some document. That document have been exhibited. ExhJDl does not bear any signatures, nor does it give any date. It does not show as to who had prepared it, as such, it cannot be considered as a valid defence against the claim of the plaintiff specially in absence on basis of this objection.
11. DW1 Ashfaq Ahmad, SDO, Irrigation, Tubewell Sub-Division, Bahawalnagar, in his cross- examination has admitted that the plaintiff was entitled to the refund of earnest money and the amount of security, and that there was no defect in the plaintiff's work.
12. DW2 Syed Zahid Ali, XEN, Fordwah Bahawalnagar stated before the court that audit inspection was conducted before the time of his posting, and the audit record was available in his office. As such, the audit record was never produced by defendants in court. The witness also did not produce the record of tenders, in his cross-examination, he admitted that for the transportation of equipments, separate tender was invited, and that the plaintiff was not served with any Notice on receipt of audit objection, nor was the plaintiff afforded an opportunity of hearing by the audit party before coming to the conclusion that double payment had been made in respect of the amount of Rs.6000/- to the plaintiff.
13. From the aforementioned facts, it is clearly established that there is no evidence on the record to show that the charges of transportation of equipment, machinary and rigs etc to the spot was the plaintiff's liability. Hie so called audit report or the decision of the audit inspection team was never produced by defendants in evidence, and as such, the presumption is drawn against them.
14. Adverting to the filing of appeal in this Court, we have noticed that this appeal is hopelessly barred by time, in asmuch as, the judgment of the trial court was announced way back on 6th of October, 1992, and the appellants had applied for its copy the same day, and it was delivered to them on 14th of October, 1992, and the appeal in the High Court was filed on 16th of February, 1993 after making it time barred by 34 days. In their application under sections 5 and 14 of the Limitation Act for condonation of delay, the appellants have taken up the plea that originally the appeal was wrongly filed before the District Judge, Bahawalnagar, and after its return therefrom, it had been filed before this Court. Record reveals that the appeal was. Presented before the District Judge, Bahawalnagar on 12th 6f November, 1992, and as the learned District Judge did not have the pecuniary Jurisdiction became the total amount of the suit money and the set of comes to Rs.
2,10,575/- therefore, it was returned by the learned District Judge on 24th of January 1993 to the appellants, and then, it was presented to this Court on 16th of February, 1993. Even the period from 24.1.1993 to 16.2.1933 is not explained satisfactorily. It is evident from the record that the appellants applied for copy of the order of the learned District Judge on 25th of January, 1993, which was supplied to them on 2nd of February, 1993 and the period of this delay between 2nd of February, 1993 to 16th of February, 1993 is also unexplained. In para 3 of the applicant for condonants of delay, it is stated that the matter was referred by the Solicitor to the Advocate General Punjab Lahore, and the later forwarded it to the learned AAG at Bahawalpur, and this office received the above appeal after 2:00 pun. On 15th of February, 1993, and in para 4 of the said application, it is mentioned that the applicants/appellants after deciding the appropriate forum for filing this appeal have filed it in this Court. As stated above, the learned District Judge, Bhahawalnagar returned the appeal to the appellants on 24.1.1993, and therefore, from this date the correct forum for filing this appeal stood decided while the appellants had already sanction to file the job and thus, there is no justification for not filing the appeal immediatelythereafter, and the time spent in obtaining the copy of the order of the learned District Judge cannot be excluded, in asmuch as, copy of the order of the District Judge was not at all necessary for filing of this appeal. Even otherwise, the appellants after getting the copy of the order on 2.2.1993,' acted so negligence in filing the appeal before this Court that a further delay of 14 days was caused for which, no plausible explanation is available on the record. In this particular context, the discussion hereinafter would show that the time spent by the appellants before a wrong forum cannot be condoned in law while computing the period of limitation. Learned counsel for the respondent in this connection has placed reliance on PLD 1977 SC 102 Abdul Ghani Vs Ghulam Sarwar, wherein, the appeal had been wrongly filed before the District Court, and it was returned to the appellant after the expiry of the period of limitation. It was held that the District Court was under no obligation to advise appellant how to prosecute his remedy.
15. In an other case reported as 1984 SCMR 890 Mst. Mehmooda Begumand others Vs Major Malik Muhammad Ishaque and others, the Honourable Supreme Court held that gross ignorance of law on the part of counsel, could not be regarded as an ill advice, and for that reason, if the client had suffered, he could seek redress against counsel Such ground could not prevail for condonation of delay. In the instant appeal, it is not clear, as to how, such ill advice was given by counsel In yet an other case, similar view was expressed in 1985 SCM R 333 Bashir Ahmadd Vs Govt: of the Punjab andothers, and 1985SCMR 1003Mian Aizad Bakhsh Vs Sheihk Muhammad Afzal. In the later case, reference has also been made to Kumar Rajendra Bahadur Singh Vs Rai Rajeshwar Bali and other AIR 1937 PC 276 and in 1986 SCM R 1493 Nek Muhammad Vs AC Jhelum and Others, same view was expressed.
16. In an other case reported as PLD 1983 SC 385 Mirza Muhammad Saeed Vs Shahab ud Din and 8 others, it was held by the Honourable Supreme Court that delay could not be condoned where the mistake occurred in approaching the wrong forum due to the gross negligence and carelessness of counsel and where the due diligence and caution of the counsel before moving the wrong forum has not been shown. It was held that in such cases, the only remedy for client of such counsel is to sue him fordamages for loss suffered on account of his negligence.
17. The Honourable Supreme Court In a case reported as PLD957 Ghulam Ali Vs Akbar alias Akoor and another that the time consumed in pursuing the appeal in a wrong forum could not be condoned under provisions of section 5 of the limitation Act on the ground that no objection was raised in that forum, and that defect was not noticed by that forum. It was also held that mistake of counsel could n6t be treated as an act done in good faith, as the same was not done with due care and caution, and would not amount to sufficient cause as contemplated under section 5 of the Limitation Act, 1908.
18. Lastly, it was argued on behalf of the appellants that the appellants being the Govemment functionaries had to follow certain procedure as laid down by the Govemment for instituting an appeal, and before the filing of the appeal, the matter was considered by various functionaries of the Govemment, and as such, the delay stands explained.
19. In the matters of limitation, no preferential treatment is to be given to the Govemment, and the delay of each and every day has to be explained, and the time spent merely on deliberations by Government functionaries could not be excluded in computing the period of limitation. In this respect, learned counsel for the respondent has placed reliance on 1970 SCMK 558 Province 'of East Pakistan Vs Abdul Hameed Oarji and others to contend that the Government in matter of condonation, could not claim preferential treatment, and the delay of each and every day is to be explained. Similarly, in an other case titled as Deputy Director Food, Lahore Region Lahore etc Vs Syed Safdar Hussain Shah (CPSLA Nos:62,63 and 64 of 1977 ) 1979 SCM R 45, petitions for special leave to appeal before the Supreme Court were barred by 45 days, and the condonation of delay was sought on the sole ground that the matter remained under the examination of Government at various levels, and thus, got delayed under such process. It was held that" such plea does not constitute a sufficient ground for condonation of delay". It was further observed thatwhile asking for the condonation of delay, each day of limitation is to be properly and sufficiently explained. Similar view has also been expressed in Commissioner of Income Tax Vs Rais Pir Ahmad Khan (198l SCMR 37) and the Honourable Supreme Court has throughout consistently maintained this view, and recently in a case reported as Government of NWFP and three others Vs Abdul Malik (1994 SCM R 833) has repelled the ground for the condonation of delay a Govemment Department takes a longer period than a private litigant in filing the matter. It has been held that it was not the sufficient ground for condoning the delay under section 5 of the limitation Act.
20. For the reasons enumerated int eh preceding paragraphs of this judgment, we find no merit in this appeal which is also hepelessly barred by time, and as such, it cannot succeed, which accordingly is dismissed with a modification in the judgment and decree of the trial court dated 6th of October, 1992 to the effect that instead of interest at the rate of 10% per annum, the plaintiff/respondent is entitled to the profit qua the suit amount of Rs. 1,04,575/- from the data of institution of the suit till the realization of the decretal amount, and the said profit shall be calculated in accordance with the profit being given by the National Bank of Pakistan in a saving account. Order accordingly.