' This first appeal is directed against the judgment and decree passed by Civil Judge, First Class, Khairpur whereby the claim of respondent was partially granted.
' Respondent Syed Zainul Ebad Rizvi trading under the name and style of Messrs Z. E. Anis & Co., got various contracts for certain works in the defunct State of Khairpur. One of the contracts given to him was regarding construction of Sorah Road in that State in the year 1954-55. The allegation in the plaint is that he was prevented. Maliciously and arbitrarily, from completing the work and that he had not been paid for the work done by him. The respondent claims that he had repeatedly made demands for the payment of dues for work done by him, and finally when legal notices were issued on his behalf he was persuaded by the appellant to settle the matter amicably and not to resort to the legal action. But in spite of repeated promises the appellant defendant failed to settle the demand. A prayer was made for the grant of decree for the recovery of Rs, 53,215 plus interest at the rate of 6% per annum and the cost of the suit.
' In the written statement filed by the Deputy Commissioner, Khairpur, on behalf of Government of West Pakistan it was denied that the respondent was entitled to any payment. It was alleged that he had been paid for the work done by him. The suit was resisted on the ground that it was not maintainable according to law ; that it suffered because of non-joinder and misjoinder of parties, that it was time-barred ; that the Court had no jurisdiction to entertain the suit and that it was not in proper form.
' As many as 10 issues were framed by the learned Civil Judge, First Class, Khairpur ; All legal issues were found in favour of the plaintiff/respondent and it was adjudged that the plaintiff was entitled to recover Rs, 26,740 in addition to interest from the date of institution of the suit till final realisation of the claim. Costs were also awarded. This decree was passed on the 15th May 1967, in pursuance of the judgment dated 23rd December 1966. The present appeal is directed against such judgment and decree.
' Mr. Hassan Akbar, the learned counsel for the appellant has raised two preliminary legal questions ; Firstly, it is contended that the suit was not maintainable in view of the provisions of Order VII, rule 6 of the Code of Civil Procedure ; Secondly, the suit was hopelessly tune-barred and should have been dismissed as such. These two questions are interlinked because of the contention raised that the plaint failed to show the grounds upon which exemption from the Jaw of limitation is claimed.
' Now the first question for determination in the context of limitation is as to which Article of the Limitation Act would be attracted to the facts of the present case. Mr. Hassan Akbar claims that the plaintiff's case fell under Article 56 or, alternatively, under Article 114 of the Limitation Act. Mr. S. A.
Nusrat, the learned counsel for the respondent, however, contends that none of these Articles apply to the facts of the present case and, therefore, the case would be covered by the residuary Article 120 of the Limitation Act. In order to determine which Article of the Limitation Act would apply we have to examine the claim made by the plaintiff in the plaint. The respondent had claimed in para. 5 of the plaint that he was 'entitled for the recovery of the amount for the work done" Although the contention is raised that the contract had been terminated maliciously and arbitrarily before the expiry of the period of contract, but no relief is claimed against such termination. Neither any compensation is demanded on account of losses suffered due to such determination of the contract nor has any prayer been made for a direction to allow completion of the contract. In these circumstances where the cost of the work done is claimed, the relevant Article would obviously be Article 56 of the Limitation Act which prescribes 3 years period for a suit to be brought 'for the work done by the plaintiff for the defendant at its request, where no time is fixed for payment". Article 114 would not be attracted as it deals only with the rescission of a contract.
' Mr. Hassan Akbar's case is that the termination of contract had taken place as far back as 27th July 1956, as is evidenced from Exh. 53 the letter of that date from the Executive Engineer, B. & R., Khairpur Mirs. The suit would have been within time if it had been brought before 27th July 1959. It was evidently filed on 2nd November 1964. The contention raised is, firstly, that no exemption under section 19 of the Limitation Act is claimed in the body of the plaint and therefore it required to be dismissed as not maintainable, under Order VII, rule 6, C. P. C. And secondly, that there is no evidence to support the contention that the provisions of section 19 of the Limitation Act would be attracted to the facts of the present case.
' Section 19 of the Limitation Act provides that a fresh period of Limitation is to computed in cases where there is a written and signed acknowledgment of liability within the initial period of limitation.
The contentions of Mr Hassan Akbar are firstly that there is no such acknowledgment, and, secondly if there is any, it was made after the initial period of limitation had expired.
' The word 'acknowledgment' is not defined in the Limitation Act. In G. AL Qadir & Co. v. Abaul Latif (1) this word was interpreted to mean an admission by the writer that there is a eebt owed by him. It was further observed that the Limitation Act, is a statute in derogation of the right to 'sue, therefore the exceptions provided by the Act must be construed liberally and that a writing, claimed to he an acknowledgment, must be, interpreted liberally so as to maintain the right to sue rather than in negation or derogation of such right." Proceeding from this board principle we come upon the case of Sunbaramayya v. Iregam Reddi (2) which holds that where there is admission of accountability by the person liable to pay to the person to whom payment is due, an admission that account was not settled, and an expression of willingness to settle it implies an admission of liability for the amount which may be found due on such settlement. To same effect are the principles laid down in Municipal Committee, Amritsar v. Ratio Ram (3) and Janakram v. Narasinha (4). The first two cases follow the authority of the Privy Council in Mani Ram v. Seth Run Chand (5) laying down that where there is a clear admission of open accounts it is sufficient acknowledgment of liability within the meaning of section 19. Thus it is settled law that where there is an acknowledgment of accountability it amounts tot acknowledgement of liability to pay outstanding amounts, if found at the settlement of accounts.
' The question now would be if there are matters written or signed by or on behalf of the appellants which may amount to acknowledgment in terms of the principles detailed above. The learned counsel for the arties have very labouriously taken me through various documents in support of their respective claims. I would refer only to those which are necessary in determining the question.
Exhibit 53, is the letter of termination of the contract. It was issued on 27th July 1956. It is operative from the date of its issue and therefore the cause of action arose on this date. The limitation would have run out on 26th July ,959, in the absence of any acknowledgment before that date, Exh. 69 is a letter written by the respondents to Superintending Engineer, Provincial Circle, P. W. D. Sukkur on 3rd December 1957. It refers to an earlier letter to Additional Chief Engineer, dated 26th October 1957 (Exh. 67) wherein the contractor was advised to correspond with the Superintending Engineer as some decision had been conveyed to him. In this letter the request for settlement of bills is made for as many as seven contracts which
(1) PLD 1970 Kar. 708 (2) AIR 1939 Mad. 300
(3) AIR 1936 Leh. 629 (4) AIR 1937 Mad. 38
(5) 33 I A 165 ' includes the Sorah Road. Copy of this letter is endorsed by the respondent contractor to the Additional Chief Engineer. Upon receipt of this copy the Chief Engineer, again on 20th December 1957 (Exh. 71) advises the Superintending Engineer to settle the claims of the firm latest by 31st December 195's. Tnis letter of the Chief Engineer acknowledges the right of the respondent's firm to account therefore, it would amount to an acknowledgment in terms of section 19 of the Limitation Act. Hence a fresh period of limitation started running from 20th December 1957.
' Exhibit 72 is another reminder from the Chief Engineer of West Pakistan, to the Superintending Engineer, Sukkur, calling upon him to immediately settle the outstanding claims of the respondent.
This letter is dated 5th November 1958. Again on 4th June 1958 the Executive Engineer, Building and Road, Khairpur, told the respondent through letter Exh. 75, that his bills were pending in his office for want of funds and that as soon as the funds are received his bills will be cleared without delay. This letter is not only an acknowldgrnent of a simple right to account but is also an acknowledgment of the liability itself.
' On 14th March 1960 the Sub-Divisional Officer, B. & R. Sub-Division Gambat, seems to have examined a certain letter of the contractor dated 19th November 1956 and has given his detailed views about such claims.
' This letter appears on record as Exh.
62. It seems a reference was made back to the S.
0. 0. By the Executive Engineer and in reply another letter dated 14th June 1960 was written by the S. D.
0. To Executive Engineer. This appears as Exh.
60. In para. 5 of this letter S. D.
0. States as under : "Contractor is being asked to produce evidence in respect of claim but it will both be better and speedy if he is asked to produce the record before you so that the decision may be final."
' Without going into the correctness or otherwise of the view expressed by the Sub-Divisional Officer in these letters they evidently indicate an acknowledgment of right to account. Needless to say, that in view of the first explanation to section 19 of the Limitation Act, the acknowledgment has not to be addressed to the persons whose right is being acknowledged. These letters again have the effect of extending the limitation upto 14th June 1963. But long before that on 12th of August .961, the Superintending Engineer in his letter, Exh. 81, called upon the contractor/respondent to furnish the details of the claims. This letter seems to have been addressed in response to notice issued by the respondent's Advocate under section 80, C. P. C. In this letter the respondent was advised not to resort to legal action before final decision is made by the Superintending Engineer. In Amritsar Municipality's case referred to above, similar request was made and it was held that it amounted to acknowledgment in terms of section 19 and had the effect of giving a fresh lease of limitation.
Exits. 89 to 93 are various notices issued between 17th September 1961 and 4th November 1961, issued in connection with meetings to be held from time to time, for settling the accounts with the respondent/contractor. In these notices, while the contractor was called upon to attend such meetings, he was requested to bring record in support to this claim.
' Finally, in March 1963 the Chief Engineer B. & R., Southern Region, Hyderabad addressed a letter to the Superintending Engineer calling upon him to look into the case personally and to finalize it early.
Each one of the letters referred to above constitutes an acknowledgment of the right to account of the respondent/contractor. Each of such letters were written before the initial or the earlier period of limitation came to a close. The last of such letters was written in March 1963. The suit having been brought in November 1964 was therefore well within time. The objection as to limitation is therefore not sustainable.
' But independent of this question the learned counsel for the appellant contends that the plaintiff- contractor was bound, in terms of Order VII, rule 6, C. P. C. To plead, in the plaint itself, the grounds upon which exemption is claimed from the provisions of law of limitation. He relies upon Chatcrdhari Mahto v. Nasim Singh (1) and Kalyan Mal v. Ahmeduddin (2). Mr. Hassan Akbar relies upon these cases in support of his contention that plea of acknowledgment under section 19 of the Limitation Act should have been specifically taken ; and that the ground on which such plea is raised, should have been specifically given in the plaint. Not having done so the evidence brought by him in this behalf cannot be looked into. This is too strict a view and nothing of that sort can be gathered either from the Privy Council authority or from the Patna case. In Patna case the High Court disapproved the practice of allowing evidence to be given notwithstanding the provisions of Order VII, rule 6, C. P. C., which required exemption from limitation to be pleaded. But the Judges of the Patna High Court proceeded further to hold that such evidence could not be ruled inadmissible at the appellate stage, because the defendants did not object to such evidence, as if they should have done to enable the plaintiffs to apply for amendment. The facts of the present case are on all fours which this ruling and therefore such objection cannot be entertained at this stage.
' In Kalyan Mars case the appellants, before the Privy Council, who were originally the plaintiffs wanted to raise a plea of exemption from limitation by virtue of fraud played by one of the defendants. It was not allowed to be raised for the reason that no such plea was raised before the Courts in India ; secondly no exemption from the law of limitation was claimed in the plaint, and finally there was no proof of the alleged fraud or the date when it became known to the plaintiff. It is not an authority for the proposition that in the absence of the specific plea, the evidence brought on record could not be looked into where no objection was taken at the proper stage.
' The appellants never objected to the bringing of evidence on record at the trial stage, nor have they taken any such plea even in the memo of appeal. The objection therefore cannot be sustained.
' As to the merits of the claims of the respondents two issues were framed, which read as follows : "8. Whether the plaintiff is entitled to Rs, 53,215 from the defendant ?
9. Whether the plaintiff is entitled to receive any amount? "
' These issues have been dealt with by the learned trial Judge together and his findings are that the respondent is entitled to an amount of Rs, 25,740. This amount has been allowed for the following items of works allegedly done by the respondent :
(1) Supply of Boulders 51,956 eats.
(2) Cutting embankment to the form the seat for soling according to L. Sec., for 20 furlongs.
(1) AIR 1924 Pat. 806 (2) AIR 1934 P C 208
(3) Sand filling 6' thick for 22 furlongs,
(4) Laying earth on soling 20 furlongs.
(5) Security Deposit.
' The findings in this regard are mainly based on Exh. 24, a statement of dues claimed by the contractor/respondent, and Exh. 62, the letter from the S. D. O.
' Part "G" of Exh. 24 deals with Sorah Road. The 8 items claimed therein, for this work include the four items allowed by the learned trial Judge. The contention of Mr. Hassan Akbar is that this is a bald statement of the contractor/respondent which does not find any support from any cogent evidence. Even the contractor himself, when he appeared in the witness-box did not state on oath that this was a correct state of affairs and that he was yet to be paid for such work done by him.
Exh. 62 is a letter from the S. D. 0, giving parawise comments on the claim made by the contractor.
As regards the first item regarding supply of boulders, allowed by the learned trial Judge, he seems to have adopted the reasoning followed by the S. D.
0., which is to the following effect "That the quantity allowed to him under the item of laying soling is 1,49,59! c. Ft. Whereas the quantity against the item of supply is only 97,935 c. Ft. And since there is nothing on records to show that the difference between these two figures was supplied by any other agency the claim of Contractor appears justified."
' These conclusions, on the face of it, are presumptuous and conjectural. Exh. 63 indicates that this view of the S. D. O. Was not accepted by his superior. Be that as it may, before a Court of law a plaintiff has to establish his claim on a clear and cogent evidence. There is no rule of evidence by which it could be held that because a particular set or work is not shown to have been done by any other contractor therefore it should be presumed that the claiming contractor has done that job.
' The evidence on record shows that a new contract was awarded, soon after cancelling the contract of the respondents. It is not shown that the difference of about 52,000 s. Ft. Was supplied by the respondent and not by that new contractor. Thus the fact remains that the respondent has failed to discharge his onus of proving that he had supplied this much quantity of boulders/soling material.
' Additionally, Mr. Akbar contends that in the absence of any allegation of wrong entry Wire measurement books the respondent should have tried to prove the supply of this material, as well as the completion of other works, through the entries in the measurement books. It is contended, and such contention is not controverted, that all work done by the Contractor was regularly entered in the measurement book and the bills of payment to the contractor were always to be based on the entries in the measurement books. There being no contention that the measurement book was not properly maintained it is not understood why the contractor did not choose to call such primary evidence in support of the work done and to prove his contention from the entries therein. The inference would be that such entries may not have supported the case of the plaintiff- respondent. There is not a single other piece of evidence in the voluminous documents brought on record by him.
' The second item of cutting of embankment is admittedly an extra item not provided in the agreement of contract. In order to prove that this work was done by the contractor he has to bring cogent evidence on record. The views of the S. D.
0. In Exb. 62 are again based on presumption when he says : "This claim of contractor is also justified for without cutting embankment he naturally could not have commenced soling and since this item is not provided in the estimate and agreement it should be allowed as an extra item."
' It may be mentioned that Exh. 63 is another letter written by the same S. D.
0. To the X. E. N. This letter is obviously in continuation of the earlier letter Ext.).
62. In this letter again the S. D.
0. Failed to support his conclusion with anything on the record available with him. In the absence of positive and affirmative evidence by the contractor that the job of cutting of embankments was done by him, it cannot be presumed that he could not have proceeded further without having done such job. For raising such presumption evidence should have been brought on record that such work was not awarded to any body else. A letter which strives to arrive at the conclusion on presumptions for which no basis exists cannot be made the ground for arriving at judicial conclusions. Apart from this letter the contractor has failed to bring any other evidence on record in support of his claim.
' The third item allowed by the learned trial Judge is with regard to spreading of 6" thick sands stretched on 22 furlongs of Sorah Road. Here again the learned trial Judge has confined to the two exhibits referred to earlier. On the other hand Mr. Hassan Akbar relies upon Exhs. 37, 38 and 3e to rebut the contention that 6" thick sand was laid on the length of the road claimed by the contractor. &h. 37 is a letter dated 27-11-1954 from the S. D.
0. Of the Beat addressed to the Executive Engineer alleging that only 3' of sand was spread as against 6" required by the contract. He declared that he had perforce, stopped the work, but complained that the agent of the contractor restarted it as soon as he the S. D. 0,) disappeared from the scene. Hxh. 38 is a notice from the Executive Engineer dated 2-12-1954 to tne respondent contractor in which he was directed to desist from carrying out soling without laying a layer of 6" thick sand. Exh. 39 dated 5-3-1955 is another letter by the S. D.
0. Addressed to the Executive Engineer repeating bis allegation that the contractor had been laying only 3" thick of sand instead of 6". He also complained that as the area was under seepage therefore the required thickness of sand was a necessity. On the body of this letter the Executive Engineer seems to have ordered issuance of another notice to the contractor for providing 6" thick sand cushion failing which action could be taken against him. - These documents have come on record through the contractor. He has produced no evidence to syndicate that the defects pointed out in these letters were duly removed by him. Nor is there any affirmative evidence to show that a layer of sand, 6" in thickness, was actually spread on the length of the road claimed by the contractor. In these circumstances it is not understood how the contractor could claim pay meat for a work which is not proved to have been done by him.
' As to the last item Mr. Hassan Akbar relies upon Exh. 43 indicate that the contractor had, by 21-10- 1955 not even done the required soling not to speak of laying earth upon such soling. This letter is addressed to the respondent contractor from the Executive Engineer calling upon the contractor to complete the work of stone soling as early as possible. The contractor has failed to bring any evidence on record to indicate that this direction of Executive Engineer had been duly acted upon.
In the absence of any such evidence it could not be held that he has done this job: He, therefore, cannot claim any amount for such job..
' In view of the above discussion, I have come to the conclusion that the contractor has failed to prove his contentions even with retard to the claims allowed by the learned trial Judge. There is no cross objection to this appeal. Changing the disallowance of other claims of the contractor. I would, therefore, accept the appeal and dismiss the suit with costs.