' RAJA MUHAMMAD KHURSHID, J.---This is an appeal against the judgment. Dated 30-3-1998 passed by Malik Shabbir Hussain Awan, learned Civil Judge 1st Class, Sheikhupura, whereby, he decreed the suit of the plaintiff/respondent with costs. The brief facts are that the plaintiff/respondent filed a suit for declaration and damages on the ground that he was given the right of collection of fees in respect of cattle market known as Ghazi Minara in District Sheikhupura vide an open auction held on 24-8-1994 in which the auction amount was determined as Rs,61,00,000. The work order was issued in favour of the, plaintiff whereupon, he was handed over the possession of the aforesaid market. In view of the Resolution No,13, dated .15 -12-1990 and the agreement entered into between the parties, another cattle market established in Village Kot Ranjeet Singh was not to be auctioned further after the expiry of its existence term. After obtaining the aforesaid right, the plaintiff allegedly spent huge amount for effecting improvements in the cattle market. The plaintiff also abided by the terms and conditions of the agreement between the two sides by depositing the requisite rent, taxes and other dues. Surprisingly for the plaintiff, the Local Government suddenly established another cattle market at Mandialla Virkan in contravention of the agreement settled between the parties. The aforesaid market went into operation on 22-10-1994. It was situated within the same vicinity, therefore, it allegedly caused reverses in the business of the plaintiff who was handicapped to run it in accordance with the terms and conditions under which he was allocated Ghazi Minara Market. He also suffered losses which he explained in his suit in the following manner:--
(i) Loss of Rs,1,00,000 per week;
(ii) the expenditure of Rs,1,17,000 per week; and
(iii) the loss of profit of Rs,35,000 per week. Hence a total of Rs,2,52,000 was claimed as damages per week.
2. The suit was resisted by the appellants/defendants on the ground that the plaintiff had no cause of action nor the suit was maintainable as the plaintiff was estopped to file the same. The suit was also allegedly filed with mala fide intention and as such, special costs were prayed. On factual side, it was alleged that Ghazi Minara Cattle Market was put to an open auction but no bidder had come forward to give suitable bid,, therefore, the matter was ultimately settled through negotiation and in pursuance of it, the plaintiff was given the right of the collection of fees. As such, it was denied that he had acquired such right by participating in the open auction. It was also submitted that the cattle market at Kot Ranjeet Singh was closed down as ',Ps the agreement between the parties but- the Government had established another market known as Mandialla Virkan Market at a different place which had no connection with the market allocated to the plaintiff. In this respect, it was contended that there was no legal bar to establish another market outside the parameter of the market, allocated to the plaintiff.
3. The Court below framed the issues on the controversial points and after taking into account the documentary and oral evidence, examined during the trial by the parties, rendered the impugned judgment by decreeing the suit of the plaintiff/respondent as prayed.
4. Learned counsel for the appellants assailed the impugned judgment and decree on the following grounds:--
(a) That the impugned judgment and decree given by the Court below was totally against law and facts, appearing on record;
(b) that there was no violation of the terms and conditions settled between the parties at the time of awarding the negotiated agreement;
(c) that the suit was not properly instituted as it was filed against the Administrator, Chief Officer and the Taxation Officer of the District Council instead of impleading the District Council as a defendant in the suit, hence, the suit was allegedly not maintainable in its present form;
(d) that there were no mala fides nor those were spelt out in the plaint and as such, the averments to that extent were allegedly ill-founded;
(e) that the suit was liabid to dismissed for the misjoinder and non-joinder of necessary parties as the District Council was never impleaded as a party, as pointed out above;
(f) that the suit also suffered from the defect that the detail of damages was never given in the plaint or in the evidence to show that the plaintiff/respondent had actually suffered damages as claimed by him;
(g) that the prior notice of the institution of the suit as required by section 173/174 of the Punjab Local' Government Ordinance was never served before the filing of the suit in question and as such, it was not maintainable on that score; and finally;
(h) that the alleged agreement contained a clause for arbitration but while ignoring the same, the plaintiff/respondent entered into litigation and thereby violated and breached the contract himself.
5. Learned counsel for the respondent/plaintiff, however, resisted the appeal on the ground that under the agreement, the appellants/defendants could not open or establish a new market after giving the right of collection of fees in respect of Ghazi Minara Market: It was, therefore, alleged that the appellants/ defendants were guilty of gross violation of the agreement in question as they had agreed to close down Kot Ranjeet Singh Market and had also given an understanding that no other market will be established in the area. After closing Kot Ranjeet Singh Market, they established another market at Mandilla Virkan without any just cause at a close distance to the market of Kot Ranjeet Singh, and therefore, acted with positive mala fide. It was further contended that the suit was in proper form nor there was any material on record to show that the respondent/plaintiff was estopped by his conduct to institute the suit. On the contrary, the suit was filed against the functionaries of the District Council and as such, there was no necessity to implead the District Council as a party nor the respondent/plaintiff could be non-suited on that technical ground. In this regard, it was alleged that Province of Punjab through the Secretary, Local Government was impleaded as one of the defendants which being a controlling department of the District Council, there was no necessity to implead the District Council itself as a defendant. Likewise, it was submitted that there was no legal necessity to ask for the arbitration because the appellants/defendants had violated the agreement in question without any just cause.
6. We have considered the foregoing contentions raised at the Bar from both the sides. First of all, it may be noted that according to the respondent/plaintiff, he had obtained the right of collection of fees in respect of market in question through an open auction but the perusal of the record will show that the open auction had failed as it had not attracted the suitable bidders, whereupon, it was decided that the rights of collection be given through negotiation to a party which offered the highest bidding in the defunct auction. This fact is clear from Exh.P.1 appearing at page 33 of the Paper Book. In pursuance of that decision, the subcommittee on the finance of the District Council considered the matter and decided to give the right of collection of the fees to the plaintiff. As such, resultantly, the plaintiff was called upon vide Exh.P.2 to comply with the terms and conditions in respect of the stipulated lease money. The agreement Exh.P.5 was accordingly entered into which contained the provisions for arbitration in case of dispute between the parties over any matter arising out of the contract. A reference in pursuance of the aforesaid document was made the Chairman, District council, Sheikhupura to the Secretary, Government of Punjab, Local Government Department vide Exh.P.6, whereby, the right of collection of fees in respect of the market in question was given to the respondent/plaintiff under the conditions mentioned therein. A decision by the Secretary, . Local Government on the controversial points was given vide Exh.P.7. The findings made therein were conveyed to the respondent/plaintiff vide document Exh.P.9. It is, thus, obvious that the-. Respondent/plaintiff was given the right of collection of fees under a negotiated lease instead of open auction. The averments in the plaint to the effect that the market was put to an open auction and that the plaintiff/respondent got the same in auction appear to be false. Likewise, a petition under section 34 of the Arbitration Act was moved before the learned Court below by the appellants/defendants, the reply of which was filed by the present respondent/plaintiff in which it was contended that no agreement between the parties had ever been effected. However, there is nothing on record to show that the aforesaid application was decided. But the fact remains that the agreement in question existed between the parties as the present suit was filed on the ground that the same was breached by the appellants/ defendants. Anyway, after going through the oral evidence, it appears that the plaintiff did not bring on record any material to show that in fact the agreement was violated or that the plaintiff had suffered any specific damages as pointed out by him in the plaint. He had given a general amount in respect of the damages with hypothetical figures of weekly profit and the amount which he had allegedly spent on the. Improvement of the market. However, no evidence was examined to show or substantiate the detail of the damages or the expenditure on improvements of the profits which were bound to accrue to the plaintiff but he could not earn the same allegedly because of the breach of agreement. The perusal of the statement of Naseeb Ahmad (P.W.1) and Muhammad Atta (P.W.2) would show nothing about the claim in the suit except that they had reduced the documents which have been brought on record being part of their official record. The sole witness on the factual side was the plaintiff himself who entered the witness-box as P.W.3. He contended in his statement that the Ghazi Minara Cattle. Market was put to an auction on 24-8-1994 and that he had obtained the right of collection of fees for one year on the payment of lease money of Rs,61,00,000. He also contended that according to the by-laws of 1981, no other market could be established by the District Council in the area. He had allegedly run the market for about nine weeks, whereupon, he came to know that a market was established at Mandialla Virkan, the lease of which was given to Shafique (defendant No,5) at the lease money of Rs,1,00,000. The opening of the aforesaid market allegedly violated the rules and the understanding between the parties which caused loss to the plaintiff as the business of Ghazi Minara Market started shifting to the market of Mandialla Virkan, thereby, causing him loss. However, he estimated his weekly loss to Rs,2,52,000 as detailed above but did not set out the actual loss suffered by him or the actual profits to be earned by him for the weeks to come. He could do it by showing his income in the first nine weeks as compared to the alleged decreased income in the latter weeks, if any, to demonstrate that in fact, he had suffered the actual loss as claimed by him. However, he did not do so and as such, his claim to the damages was without merit. Likewise, there was nothing in his statement to show that in what manner, he had improved the Ghazi Minara Cattle Market and how much amount was spent on such improvements and under what heads. Hence, without the details of such expenditures, it cannot be said that he had actually spent anything on the improvement of the cattle market aforesaid and in what way. The mere mentioning that he had made the improvements or that he had suffered the loss or that he was deprived of the profits without supplying their details, it will remain a mere assertion without having any tangible value for the determination of the losses suffered by him. It is strange enough that towards the end of his statement, he claimed that he had suffered loss of Rs,2,11,75,000 for which-he also made further claim in his statement without showing or discussing its details. During cross-examination, the plaintiff was unable to show that in fact, he had suffered any loss but on the contrary, it appears that he started defaulting in making , the payment of instalments of the lease money to which he had agreed under the agreement and had also involved the department in litigation which proved to be a barrier for executing the agreement in its true spirit. He was also unable to place on record all the receipts to show that he was making the instalments regularly in order to discharge his liability under the agreement. In such a situation, being a 'pari delicto', he could not faithfully allege the violation or breach of contract by the defendants/appellants who were under no obligation to continue with the contract after its breach had started from the other side. It is an admitted fact that the market of Mandialla Virkan was at the distance of about 1 Km. From Kot Ranjeet Singh- which was closed in accordance with the terms and conditions between the parties contained in the lease agreement. We have not been pointed out any law that establishing another market by the appellants/defendants was illegal or in violation of the agreement in question. The agreement or the lease under discussion only showed that the Cattle Market of Km Ranjeet Singh shall not be further put to auction but there was no stipulation that a new market shall not be established. In.
Such a situation, we are led to an irresistible conclusion that the plaintiff/respondent had not been successful to prove his case against the appellants/defendants and the learned trial Court committed gross error to decree his suit as prayed by him. Even otherwise, under the law, the District Council being a necessary party was to be impleaded instead of its functionaries and as such, the form of the suit was also defective but no step was taken by the plaintiff to bring it in proper form. As pointed out above, an application under section 34 of the Arbitration Act was moved by the appellants/defendants but there is nothing on record to show that the same was decided. As such, the learned trial Court failed to conduct the trial in accordance with law and left out the basic issues such as reference to arbitration before proceeding further to decide the issues on merits. Since the case has not been proved on merit from the evidence brought on record, therefore, the aforesaid technical objections would not remain crucial nor would call for determination as we propose to accept this appeal and dismissed the suit of the plaintiff on merits.
7. Accordingly for the reasons stated above, we accept this appeal with costs, set aside the impugned judgment and decree dated 30-3-1998 passed by the learned trial Judge and dismiss