1. SALAHUDDIN AHMED, J.-Civil Appeal No. 190 of 1970 and Civil Petition for Special .Leave to Appeal No. 273 of 1965 have been heard together and this order will dispose of both of them.
2. Civil Appeal No. 190 of 1970 is a certificated appeal the certificate having been granted to the appellant under section 109 of the Code of Civil Procedure on the 8th of December 1966. The appeal is from a judgment of the then High Court of West Pakistan, Lahore Seat, dated the 2nd of April 1965, allowing the respondent's appeal whereby the decree passed in favour of the appellant was reduced from a sum of Rs. 5,37,515.21 to Rs. 81,120.13.
3. As a matter of precaution the appellant had filed a civil petition (Civil Petition for Special Leave to Appeal No. 273 of 1965) on the 18th of August 1965, and by an order of this Court dated the 14th of February 1967, it was ordered that the petition should come up for hearing along with the certificat- -ed appeal.
4. A preliminary point has been raised that after the promulgation of the 1962 Constitution the appeal could lie to this Court only under Article 58 of the Constitution, that is, by special leave of this Court.
5. As no such leave has been obtained the appeal is incompetent and should be dismissed as such.
6. In support of this contention reliance has rightly been placed on two decisions of this Court reported in Husain Bakhsh v. Settlement Commissioner and others (PLD1970SC1) and Province of West Pakistan v. Noor Ahmad and others (1975SCMR91). The case reported in PLD 1966 SC 472 and the judgment of this Court in Civil Appeal No. 59 of 1968, dated the 16th of January 1974, cited on behalf of the appellant against the preliminary objection do not apply to the facts of the present case. In the former, petition for leave had already been filed and leave obtained before the commencing day of the 1962 Constitution. The appeal was, therefore, held not to have abated. In the letter it was observed that the suit having been filed on the 19th of October 1955, and the value of its subject-matter exceeded Rs. 20,000 the appeal lay as of right. Besides, no objection having been taken to the maintainability of the appeal the question was not, discussed. However, as the appellant had already applied for special leave to appeal and this Court had directed that the petition be considered at the hearing of the certificated appeal, I would grant leave to appeal and proceed to consider the appeal on merits.
7. On the 6th of February 1961, the appellant filed a suit for recovery of Rs. 5,37,515.21 against the then Province of West Pakistan in the Court of the Senior Civil Judge, Muzaffargarh. The plaintiff claimed that he was an approved Government contractor and had been engaged by the defendant for the execution of work required for closing the Indus River and diverting its course towards the Taunsa Barrage on the basis of work orders Nos. 28 to 31, book No. 15, dated the 7th of November 1957. In execution of the works the plaintiff claimed to have supplied in all 28,76,524 cubic feet of pilchi "of bound bundles in compact form" to the defendant as entered in the measurement books Nos. 278, 309, 277, 374, 308 and others maintained by the Department and checked by its officers. The plaintiff started the work on the 16th of November 1958. The plaintiff gave details of the execution of the various items of work. Out of a total sum of Rs. 9,82,188-0-3 due to the plaintiff he had received Rs. 4,40,524 as running payment leaving a balance of Rs. 5,47,664-0-3 due to him. Out of the balance due to him he gave up his claim for Rs. 4,148-12-9 leaving a balance of Rs. 5,37,515-3-6 only for the recovery of which he filed the suit.
8. The defendant (Province of West Pakistan) filed a written statement con--testing the claim of the plaintiff. The defendant admitted that under work Nos. 28/31/15 dated the 7th of November 1957, issued by the department the work for malting pilchi chhap at the creak A. C. For the diversion of the river Indus at Taunsa Barrage had been allotted to the plaintiff: These work orders contained all the items of work that could conceivably be involved in the process of the closure of the creek and the diversion of the river through the barrage at the site. The defendant, however, asserted that the plaintiff had supplied only 11,19,429 cubic feet of pilchi in "loose form" and not in the form of "compacted in matresses" under the aforesaid work orders. The supply had been entered in measurement books Nos. 404/278, 403/277 and 374 by the overseers concerned. A part of the work had been checked by the Sub-Divisional Officer and was entered in his check measure--ment book No. 24/1610. The defendant denied that the measurement books mentioned in the plaint related to the aforesaid work orders. The defen--dants claimed that the plaintiff had received Rs.
9. 1,89,015 only from the defendant as running payment under the aforesaid work orders and it resulted in excess payment of Rs. 29,595 to him and, therefore, nothing remained due to the plaintiff.
10. The trial Court decreed the suit of the plaintiff in full. It found that the work in dispute had been allotted to the plaintiff under the work orders mentioned in the plaint. The Court also found that the plaintiff had, in fact, supplied the entire materials used at the site and rendered all other services in connection with the work at the site. According to the trial Court there was no dispute between the parties over the different items of the work, and the parties had agreed that the plaintiff had in all supplied 23,76,624 cubic feet of pilchi bound in 44,772 bundles at the site of the work.
11. The dispute between the parties centred round the particular form in which the pilchi had been supplied by the plaintiff to the defendant. While the plaintiff claimed that the pilchi had been supplied by him in "compacted form" the defendant claimed that it was supplied in "loose form".
12. On appeal the learned Judges of the High Court held that the plaintiff supplied the pilchi in the form of rolls each having a diameter of 2 to 3 feet and was, accordingly, entitled to the payment at the rate applicable to loose pilchi supplied by him in the form of rolls in accordance with the work order Exh. P. 1/A., item 2(b) (see pages 237 and 238 of the paper-book). The High Court also found that the plaintiff was entitled to be paid separately for the extra work done by him in making the rolls at the rate of Rs. 1-2-0 per roll as provided for in work order Exh. P. 1/C, item 6 at page 239 of the paper book. In the result the plaintiff was found entitled to the recovery of a sum of Rs. 81,120-13-0 only. As regards the quantities supplied by the plaintiff the High Court observed as follows :- "During the course of the arguments some errors in calculating the quantities as entered in these measurement books were brought to our notice and under our direction the parties have reconciled these figures. The quantities mentioned in column 4 of Annexure 'A' are the result of re- verification made by parties."
13. Mr. Ghias Muhammad, learned counsel, appearing in support of the appeal, has contended that the finding of the High Court that the pilchi was supplied by the plaintiff in rolls was contrary to evidence and that it was contrary to the case of both the parties.
14. I am unable to accept this contention. The plaintiff (the appellant herein) never claimed that he supplied the pilchi in the form of "compacted in matresses". He claimed in the plaint that he had supplied the pilchi "all bound bundles in compact". The plaintiff did not examine himself. Three of his witnesses, namely, P. W. 2 Muhammad Afzal Qureshi, Overseer, P. W. 3 Abdul Aziz, Overseer, and P. W. 5 Masood Ahmad another Overseer, have all stated that the pilchi was supplied in the from of rolls. P. Ws. 2 and 3 further stated that the rolls were bound with three bands,' of rope, and while the former said that it was, 9" in diameter, the latter said it, was not less than 2 feet in diameter bound by ordinary string of date-palm leaves. P. W. 5 spoke with spoke with reference to measurement books 308 and 309 (Exhs. P. 8 and P. 9) which were for reaches C. D., E. F. And X. Y. And said that the pilchi was bound in rolls but not compacted. It may be mentioned here that the appel--lant disputed the work order claimed to be in respect of reaches C. D., E. F. And. X. Y. On the ground that this particular work order was not signed by him and that the work order itself did not show that it was relatable to the aforesaid three reaches. Another witness on behalf of the plaintiff, viz., P. W. 6 Dafedar Akram-ud-Din, who had supervised the supply of pilchi delivered by the plaintiff, in course of his evidence produced samples of pilchi in various forms being Exhs. P. 10, P. 11, P. 12 and P. 13, and said that the pilchis were supplied in the form of Exh. P. 11 and they were then turned into form P. 12 and, thereafter, rolled up in bundles like P. 13 and that for all these ropes made of date-palm trees were used, Exh. P. 10 is in the form of loose pilchi, Exh. P. 11 is pilchi in the form of "compacted roll" Exh.
15. P. 12 is in the form of "compacted in matresses", and Exh. P. 13 is the "pilchi compacted in matresses and rolled form". He deposed that the pilchi supplied by the plaintiff to the defendant was in the form of P. 12 and P. 13 and that the number of pilchi rolls in the form of P. 11 was 44,772. He said further that no work orders other than Exhs. P. 1/A to P. 1/D had been given to the plaintiff for the supply of the materials to the defendant. He said that the pilchi supplied by the plaintiff used to be more than 2 feet in diameter. D.Ws. 1 and 2, namely, Mirza Muhammad Saeed and S. Jaffar Hussain Aftasi, were Executive Engineers. D. W. 1 said that the plaintiff supplied the pilchi in the "loose form" and not "compacted in matresses". D. W. 2 said that the pilchis were supplied in loose roll form. The latter said that the pilchi in loose rolls comprised of pilchi bushes with all twigs etc. Intact and given a definite form in shape of rolls by a few bands of string around it. Pilchi matresses (compacted) as the name indicates are matresses formed by rolls of pilchi about 6' in diameter and tied very closely with binding wire and then woven in shape of matresses chicks. Having been shown Exh. P.
16. 13 he said that it was not pilchi "compacted in matresses in rolls forms". The witness admitted that there was no specification for the quality of pilchi plant and that the definition of loose pilchi rolls and the pilchi compacted in matresses as given by him was not contained in the Code of the Department and that he had given the definition on the basis of his long experience and according to departmental practice. C. W. Muhammad Sharif was examined in the High Court. He said that the plaintiff had been engaged for work of diversion of the river on the permeable- spur and for this "compacted matresses" were not required. He said what he technically called "plichi in rolls" was treated as loose pilch.. He said that the plaintiff supplied plichi in the form of rolls 2/3 feet in diameter and 10/14 feet in length. He said the pilchi was never supplied in the form of compacted matresses.
17. On an analysis of the evidence it is abundantly clear that with the solitary exception of P. W. 6 Dafedar Akram-ud-Din the evidence is consistent that the pilchis were supplied in bundles or rolls, and not in the form of "compact", or "compacted in matresses". Even P. W. 6 said that in all 44,772 pilchi bundles had been supplied. The evidence that fully supports the finding of the High Court that the pilchi was supplied in the form of rolls and not in the form of compacted matresses.
18. None of the measurement books relied upon by the plaintiff ever men--tioned that the. Pilchis were supplied in the form of compacted matresses. Some of the earlier measurement books prepared by an Overseer merely mentioned that the pilchis were "compacted". The appellant might have also been paid by way of running payment on the basis of higher rates for supply of pilchis, but these were all tentative payments and were subject to final accounting. Upon the basis of final accounting the appellant was found entitled to payment at the rate of supplying pilchis is loose form only. The High Court, rightly found that in addition to the rate for supplying the pilchi in loose forms the plaintiff was entitled to payment of Rs. 1-2-0 per roll of pilchi supplied for a total of 44,772 pilchi rolls. The quantities of pilchi supplied and the rate for the different forms of pilchi not being in dispute the High Court order upon the findings arrived at is unassailable.
19. Having regard to the rate claimed by the plaintiff and disputed by the defendant there was no doubt that the real dispute between the parties was whether the pilchis were supplied in the form of "compacted in matresses". The evidence showed that though the pilchis were delivered in the form of rolls they were not delivered in the form of "compacted in matresses". Item No. 6 of work order Exh. P. 1/C at page 239 of the paper-book mentioned a rate of Rs. 1-2-0 for making 2 -- Dia 18" long pilchi rolls for permeable spur. The finding of the High Court, therefore, is in consonance with the respective claims of the parties.
20. The High Court has calculated the rates of pilchis strictly in accordance with the aforesaid work order. Upon the evidence led by the plaintiff it appears that the pilchis were supplied in the form of rolls. The consistent evidence is that they were not supplied in the form of "compacted matresses" or "compact". In these circumstances there is no substance in the contention that the plaintiff should have been allowed cost of carriage, loading and unloading on the basis of pilchi in "compact form".
21. There is no substance in the appeal, and I would, accordingly, dismiss it but without any order as to costs.
22. MUHAMMAD GUL, J.-I agree.
23. MUHAMMAD AFZAL CHEEMA, J.-I agree.
24. MUHAMMAD HALEEM, J.-I agree