Sardar Muhammad Zaman Khan, Government Contractor, petitioner herein, instituted suit against Government of N.-W.F.P. Through Secretary C&W, Peshawar and 2 others, respondents herein, claiming a decree for recovery of Rs.1,70,404 in respect of Contract No.46P/79-80 Kilometres 132 and 133 (1 Km. On KKH at Qalandarabad", Andottabad with the estimated cost of Rs.2,25.000 vide Executive Engineer, Highway Division Abbottabad work order, dated 16-3-1980. After three months of the commencement of the work in question, a bill was paid to the contractor amounting to Rs.20,843. However, the remaining payment was not made and the same was withheld on account of unsatisfactory completion of work on the part of the contractor.
2. The petitioner, having been refused the payment of his dues filed instant suit for recovery of Rs.1,70,404 wherein he claimed to have completed the work according to the specification and blamed the department for refusing his dues without any justifiable reason. The petitioner also claimed to have approached the respondents for appointment of an Arbitrator to settle the dispute between the parties but his applications remained unattended.
3. The defendants-respondents appeared in Court and resisted the suit on all grounds legal as well as factual, pleadings inter alia, that the payment was withheld in view of the failure on the part of the petitioner to complete the project according to- specification. The petitioner was also blamed of having used substandard material in the construction in contravention of the terms and conditions of the contract executed in this respect. The following issues were formulated in the case for trial:--
(1) Whether the plaintiff has got a cause of action?
(2) 'Whether the suit is incompetent in its present form?
(3) Whether the suit is within time?
(4)Whether the plaintiff is entitled to the decree as prayed for?
(5) Relief.
4. Upon consideration of the evidence adduced by the parties in support of their respective contentions, the suit was dismissed on 31-1-1988 but in appeal the case was remanded back by this Court on 24-4-1990 for fresh decision according to law. After remand some evidence was also produced and the suit was again dismissed vide judgment and decree, dated 15-3-1990 which was maintained in appeal decided on 21-1-1994, which has given rise to the filing of instant civil revision by the petitioner-contractor.
5. Sardar Ghulam Mustafa, Advocate appearing on behalf of the petitioner and attempted to argue that the findings of the Courts below to dismissing the suit and appeal of the petitioner suffer from misreading and non-reading of material evidence on record and also from wrong appreciation of facts on record. The Courts below have acted illegally in the exercise of jurisdiction vested in them and have grossly erred by relying on the evidence which is pregnant with serious infirmities and contradictions. The learned counsel also contended that the direction contained in para.3 of remand order passed by this Court has not been taken into account by the Courts below and as such the impugned judgments and decrees cannot be allowed to remain intact. Additionally, it was argued that the work in question was satisfactorily completed by the contractor and certain payment was made to him but subsequently the remaining payment was withheld by the respondents without any justification for reasons not far to seek. On the contrary, Mr. Muhammad Ayub, A.A.-G. For the respondents defended the impugned judgments and decrees and submitted that no case of misreading or non-reading of evidence has been made out and thus, the concurrent finding of fact supported by material on record cannot. Be disturbed under section 115, C.P.C.
6. It is true that the High Court in exercise of its revisional jurisdiction is competent to set at naught the concurrent findings of fact of two Courts below if it is satisfied that the finding is based on misreading or non-reading of evidence. It, therefore, follows that concurrent findings of fact do not always stand in the way of the High Court to set them at naught in the appropriate cases. If the Court commits an error in the mode prescribed for the exercise of jurisdiction, then the High Court has the power to interfere under section 115; C.P.C.
7. In the present case the petitioner-contractor claims to have completed the work under reference to the satisfaction of the respondent department but on the other hand the plea of the respondent-department is that the work was not according to specification and defective material was used in the construction and the contractor was repeatedly asked to remove defects but he did not respond which obliged the defendants to withhold the remaining payment of the contractor. The onus was on the contractor to prove that the work was completed according to specification and no defective material was used and that the payment was refused by the department without any justifiable reason but he has miserably failed to discharge the same. The evidence produced by him has been rightly disbelieved by the Courts below. The mere assertion of the contractor that he was entitled for the sum of Rs.46,432 without a positive attempt on his part to substantiate the same is of no consequence. The Courts below while dismissing the suit of the contractor on the basis of evidence on record have neither committed any misreading of evidence nor have omitted from consideration any material piece of evidence on record nor the appreciation of evidence by them can be described as adverse so as to warrant interference by this Court under section 115, C.P.C. It needs no reiteration that revisional powers under section 115, C.P.C. Are primarily intended for correcting errors made by the subordinate Courts in the exercise of their jurisdiction, the High Court; therefore, only interferes and corrects gross and palpable errors of subordinate Courts so as to prevent gross injustice in non-appealable cases. In the present case a fair chance was afforded to both the parties to take evidence before the trial Court which they have availed. Both the Courts have not acted illegally in breach of any of the provisions of law or have committed any material irregularity warranting interference of this Court.
7-A. In the last limb of arguments, learned counsel for the contractor submitted that the direction contained in para. 3 of remand order made by this Court, has not been followed which has materially prejudiced the rights of the contractor. The submission has not impressed me. All the points agitated before trial Court as well as Appellate Court have been properly taken into consideration and dealt with accordingly.
8. Consequently, the revision petition fails which is hereby dismissed with no orders as to costs.