JUDGMENT ZIA PERWEZ, J.- Through these applications bearing CMA Nos. 8267, 8270 and 8273 of 2001 in Suit Nos. 1033/1998, 1034/1998 and 344/1999 under Order XLVII, read with Section 151, CPC the plaintiff seeks review of the order dated 1.9.2001 in the above suits after the Hon'ble Supreme -Court vide order dated 4.10.2001 allowed the request of learned counsel for the petitioner for not pressing the petitions and observed as under:- 1....................
2. These petitions are disposed of with the observations that the petitioner may make applications in all the three suits with a view, to bringing to bear the above situation upon the facts of these cases relating to qualification carried out earlier by the Official Assignee of the High Court which relates to the times when the matter was considered in the presence of all concerned without any objection thereto.
2. Mr. Bilal A. Khawja , learned counsel for the plaintiff, in view of the above order of the Hon'ble Supreme Court stressed his arguments on the ground that after a detailed report was submitted by the Official Assignee who dated as commissioner in the above matter followed by no objection on behalf of the defendant, the said report dated 24.3.1 999 was taken on record which is final.
3. His next contention is that in the proceedings before the arbitrator after recording of the evidence both the parties closed their side without any reservation. The belated application is only filed to delay the proceedings and fabricate a new case, the work has already commenced from the month of August by another contractor as such subsequent applications were moved with mala Tide intentions. -
4. His third contention is that a subsequent appointment of commissioner cannot. Be made as it pertains to, quantification and inspection of work already carried on under the orders of the Court and the present application for review of the order is maintainable in view of the aforesaid orders of the Hon'ble Supreme Court and as such the order dated 1.9.2001 is liable to be set aside. Reliance is placed on the cases of Akbar AH and others v. Province of Punjab and others (1990 CLC 718), Zaheer-ud-Din and others v Mst. Khurshida Begum (1996 CLC 580i and Muhammad Nisar Dossa and 5 others v. Muhammad Hussain Dossa and I6 others (PLD 2000 Kar. 283).
5. Mr. Arif Khan, learned counsel for the defendant, has opposed the application on the ground that neither any appeal was filed within the period of 20 days as provided under Article 162 of the Limitation Act nor any application for condonation of delay was filed even after the order of the Hon'ble - Supreme Court was passed oh 4.10.2001. The of the defects in the work which came to notice subsequently and are covered under issue No. 7 settled Dy me learned arbitrators and that in pursuance of the terms of the contract the period of liability extended to 12 months after the issue substantial completion certificate by the engineer in pursuance of clause 48 of the contract between the parties. After referring to the letter dated 22.7.1999 learned counsel argued that with effect from 10.8.1999 the site was under the control of the security staff. After referring to clauses 48.1, 48.3 and 10.1 pertaining to. Performance bond it has been argued that the work was of a poor quality and on test it was found that the same did not conform to specifications to the extent the pressure of 4.5 bar Put burst at the pressure of 2.2 bars showing much inferior quality. The test report to this effect was obtained from the KDA on 27.7.2000 and these tests are in accordance with the terms of the contract. The application for appointment of commissioner was pending before the Court and the side was not closed by the defendant unqualifiedly but subject to the pending proceedings.
6. Learned counsel for the defendant has also drawn attention to the definitions of word "quality" from the Concise Oxford Dictionary and "evaluate" from the Oxford Encyclopedia English Dictionary which are reproduced as follows:- Quality, In degree of excellence, relative nature or kind or character, (opp. Quantity; of good, high, poor, quality; is made in three qualities; quality matters more than quality; in the of, as); general excellence (has. Is excellent),
2. Faculty, skill, accomplishment, characteristic trait, mental or. Moral attribute, (give a taste of one's, shadow, what one can do.; .Has many good qualities, the DEFECTS of his qualities, the qualities of a ruler, the quality of inspiring confidence or of courage).
3. (arch) high rank or social standing (people of, the, the upper classes). 4. (Logic). (Of proposition) being affirmative or negative, 5. (Of sound, voice, etc.)- distinctive character apart from pitch and loudness, timbre.
6. A possessing high degree of excellence; concerned with maintenance of high quality (quality control). [ME, f. Of quilate . equality "thats (qualities of what kind; see ITY)].
Evaluate Assess, appraise.
2. A find or state the number or amount of. B find a numerical expression for. Evaluation evaluative/adj. Evaluator n. [back-form. F. Evaluation f. F evaluation f. Evaluer (as E- Value)].
7. On 1.4.2002 Mr. Arif Khan has filed his statement in support of his contention that there is no bar to appointment of a second commissioner as held -in Rashid Khan v. ' Karachi Development Authority (PLD 1989 Kar. 75).
8. In view of the observations of the Hon'ble Supreme Court, the controversy at present has narrowed down to the question as to the effect of quantification carried out earlier by the Official Assignee and the effect of the no objections to the report Dy the defendants. The perusal of the record reveals that the subsequent application was moved only after the defects that were not apparent and considered at the time of initial inspection. The Official Assignee was appointed only with the object of measuring the quantum of work done by the plaintiff. The defendant applied for a detailed investigation of the defects, some of the defects that do not form the subject matter of the earlier report came to the knowledge of the defendant subsequently which calfs for a further report regarding the matter as disclosed in the order of this Court dated 20.10.1999 passed after taking into consideration the earlier report of the Official Assignee dated 24.3.1999 which also refers to the disputed measurement which could not be completed due To the fact that both the sides did not agree as to whether that portion needed to be measured or not. From these tacts it is evident that the initial report of the Official Assignee dated 24.3.1999 was not final and conclusive and the mere no objection of the defendant is only regarding the facts to the extent as they are recorded which includes the fact that the report is not conclusive and final.
9. Learned counsellor the plaintiff 'was unable to show that such no objection to the first report pertains to matters beyond the contents ot the report and the defendant gave up his right to any further investigation to determine the quality and quantity.
10. The application for . Review of the order dated 27.11.2000 appointing M/s. Nespak to investigate the matter and submit their report, the review was decided vide orders dated 1.9.2001.
11. The appointment of a subsequent commissioner to further investigate into the matter in the present case when the report ot Official Assignee itself state that certain measurement could not be recorded. Secondly as a result of discovery ot defects that came to the knowledge of the defendant later while the matter was under adjudication a situation is prima facie created where it has become necessary to- consider the appointment ot a commissioner to achieve something which the previous one failed in achieving. The object of. Issuance of a commission tor local investigation under the provisions of "Section 41 read with the Second Schedule to Arbitration Act, 194.0 is to seek elucidation of the facts in dispute and commissions are issued in all cases where local investigation is deemed requisite or proper for such purpose. This power is not restricted under the law in any way and commissions may be issued more than once if that be requisite or proper and no bar to the production of such evidence as may be admissible under the law is attracted to restrain the arbitrators from taking the same under consideration in pursuance of the terms of the contract. The question of appointment of subsequent commissioner was also examined by the learned Single Judge of this Court in the case of Rashid Khan v. K.D.A, (PLD 1989 Kar. 75).
12.. The .Question of appointment of commissioner for investigation of defects has been Considered in the case of Marsden Urban District Council v. Sharp and another (1893, 9 T.L.R.). The Kings Division Bench was of the view that the substance of the discovery was bad work and the contractor was liable to provide the defects appearing within a period of five years of the work of discovery of violation of the specifications as to the concrete, all the bad concrete must be made good.- Similarly defective work discovered after issue of requisite certificate by the surveyor, after payment was made and the work was handed over the review of the same order is barred under the provisions of Order XLV1, Rule 9, CPC. However, it is not necessary to go into details of the same as I am of the humble open *on that in view of the above discussion in pursuance of the observations of the Hon'ble Supreme Court, the (measurement) quantification covered by the first report oh consideration in the light of the facts and case-law discussed above, the order dated 1.9.2001 does not suffer from any infirmity as the points raised by the learned counsel have been explained above. Accordingly, these applications err dismissed alongwith CMA Nos. 8266/2001, 8269/2001 and 8272/2001 calling for suspension of the order dated 1.9.2001.