ORDER KHAWAJA MUHAMMAD SAEED,J-- This review petition is directed against the judgment of this Court passed on, 18.6.2002.
2. The facts giving rise to the present review petition, briefly stated, are that tenders were invited by the appellants for "Greater Water Supply Scheme Bagh Town". The private respondent being lowest bider was granted the contract of this scheme. A contract-deed was signed between the parties and in furtherance to it, work order was issued to the respondent- contractor. In the agreement- deed, the contractor-respondent was asked to commence with the work on the .Project within next 15 days from the issuance of work order to him. The respondent-contractor filed a writ petition in the High Court on 16.12.1999, whereby he craved that after obtaining the contract he started spadework of the project and hired services of labour and technical staff and collected the machine tools necessary for carrying out the work of the project. He in his writ petition gave the details of all of his expenditures. In his writ petition he claimed that the department was not happy with him, as officials of the department wanted to accommodate some other contractors of their liking. He craved for an order of restraint against the officials of the department that they should not cancel the contract or any part of the contract and the work order issued to him.
3. Before admitting the writ petition for regular hearing the learned Judge in the High Court seized with the case felt expedient to invite comments from the department which were accordingly filed in which they admitted that the private respondent obtained the contract in an open bid and further that the work order has been issued to him. Moreover the contract is to be finalized by him within next -36 months. However, it was pleaded that as the writ petition has been filed to enforce the contractual liabilities, therefore, it was not maintainable and further that the material which has been collected by the respondent-contractor was not necessary for carrying out the work of the project at initial stages. Thus the amount spent by the contractor was on account of his personal risk, It was further pleaded that the department was not bound to compensate him for these items, It was also pleaded by the department that respondent-contractor was bound to commence the work after the layout was given to him, which was given to him by the concerned S.D.O, on 29.12.1999, therefore, any amount spent by him on the items of the project before 29.12.1999, when layout was given to him was on his personal risk.
4. All these points raised by the learned counsel for the parties were attended to by this Court in its detailed judgment dated 18.6.2002. Almost all the. Points which were resolved by us, have been again agitated in this review petition. However, two new points have been raised before this Court that we have relied bn an unauthentic agreement-deed. According the learned Advocate-General, the said deed was subsequently amended by the Chief Engineer of the time. He relied on the writing which is written by hand on the right side of the blank areas of the agreement-deed.
According to the learned Advocate-General, the agreement-deed in fact was signed by the parties in this form but the respondent placed with his writ petition the copy of the agreement- deed which did not contain the Chief Engineer's writing with pen on the right side of the blank area of first five pages of the types agreement-deed alongwith writing on the bottom of the last page of the agreement-deed. Thus he obtained the judgment by playing fraud upon the Court. According to him, a photostat copy of the agreement-deed was placed by the respondent on the file. In the same way the photostat copy-of the work order was filed by him. These documents, therefore, were not admissible in evidence.
5. Except these two grounds the other grounds stood already resolved by this Court, as said earlier, in its earlier judgment dated 18.6.2002. The review cannot be entertained to decide those points which stood already resolved. Reference in this regard can be made to the following authorities:- Alam Din v. Mayor Municipal Corporation Mirpur and 4 other (1999 SCR 343), and Attia Noreen v.
Shahida Khadim (Civil Review Petition No. 1 of 2002, decided on 3.5.2002).
6. With this review petition the petitioners have placed on record the photo-stat copy of the agreement-deed whereby on the blank area of the first page of the agreement-deed a writing by hand allegedly written by Chief Engineer, is present which reads as under;- "Both the parties agreed to reduce the rates by 30% on all items".
Something more is written which is not legible. On the second page of the agreement-deed it is mentioned with pen at the bottom of the page that "the rates are reduced willingly by 30% for all the items except item No. 6." On page No. 3 of the agreement-deed again on the right side of the blank area of the page it is mentioned that "item No. 6 is reduced by 69 percent and rest of the rates by 30 percent". On page No. 4 of the said agreement-deed on the right side of the blank area, the following words have been written by hand:- "Approved by reducing the rates by (30%) thirty percent on all items".
Something more is written in the last line which is not legible. On page No. At the bottom and on right side of the marginal area of the agreement-deed the following words have been mentioned:- "Approved by reducing 30% rates on all the items except item No. 6."
Something more is written which is not legible. In the same way from pages 6 to 11 some writing is written on the right side of the blank area of the papers as well as at the bottom of the papers, which is not legible.
7. According to the learned Advocate-General the agreement-deed in fact was signed in the present form but in order to take undue benefit the respondent-contractor played fraud upon the Courts and presented the copy of the agreement-deed which did not contain the writing of the Chief Engineer of the time. On account of fraud played by the respondent-contractor the judgment of the Court was delivered in his favour keeping in view the agreement-deed, which was not in that form in which it was presented before the Court. He, therefore, craved that on the basis of this agreement-deed the judgment earlier delivered by this Court on 18.6.2002 be reviewed and fresh dictum be laid down in this regard. He further argued that respondent-contractor even in past had obtained an illegal order from the High Court on 7.2.2000, which was set aside by this Court vide order dated 20.7.2000.
8. We have considered the respective arguments, of the learned counsel for the parties and gone through the record of the case. This case remained on the files of the superior judiciary for a pretty long period. The respondent-contractor filed a writ petition in the High Court on 16.12.1999.
Alongwith his writ petition he placed on record the contract- deed which did not contain any writing with hand, In his writ petition he impleaded all the petitioners as answering respondents.
The writ petition was allowed by the High Court vide judgment dated 7.2.2000 due to the following reasons:- "The learned counsel for the non-petitioners gave an undertaking that the contract of the petitioner shall not be cancelled. Although the contract in sum of Rs 6,95,57,067/-was awarded to the petitioner, but at present the department is not in a position to carry out work of the aforesaid amount. At present the Department wants to implement the contract to the extent of Rs.2,50,00,000/-. He gave an undertaking that the contract of the petitioner shall not be cancelled.
The remaining part of the contract shall also be completed by the petitioner. The remaining work shall not be awarded to any other contractor, It shall be completed by the petitioner according to the terms and conditions of the contract. In this respect the statements of the petitioner and the .Leamed counsel for the nori- . Petitioners have been recorded. In the light of the statements and undertaking of the learned counsel for the non-petitioners, the petitioners does not want to press this writ petition, therefore, it is hereby dismissed. This, writ petition stands disposed of in the terms indicated above."
9. The order was assailed in appeal with the leave of the Court before this Court. The same was vacated on the ground that the statement made by Raja Muhammad Hanif Khan,: Advocate; in the High Court as counsel of the appellant was without lawful authority, therefore, the appeal was accepted and the case was sent back to the High Court for fresh decision. In the first round of litigation the objection was not raised by the appellants in their written statement before the High Court or before this Court that the copy of the agreement-deed which was appended with the writ petition by die respondent-contractor was not true copy of the contract. In the same way when the case was remanded to the High Court, no such objection was raised by the appellant before the High Court in the second round of litigation nor this objection was raised before us when the Controversy between the parties came in an appeal in second time. After the decision of this Court dated 18.6.2002, for the first time with this review petition, photo-stat copies of the agreement deed have been supplied which contains the alleged Writing of Chief Engineer of the time by hand. It is pertinent to mention here that the main ' agreement-deed was composed in the computer and the copy of the same was printed out from the Computer: if this writing was made before the agreement was signed by the parties, then a fresh deed should have been prepared containing all these writings. No explanation has been furnished that how copy of the agreement-deed was provided to the respondent-contractor containing the signatures of the Chief Engineer, which he furnished to/the Court in the year, 1999 and why the appellants failed to raise any objection about the correctness of this agreement-deed and why no objection was raised by the appellants about the validity of the agreement-deed either their comments on in their written statement before High Court and in their concise statement before this Court in two rounds of litigation; in which at one time die present petitioners were the appellants before this Court. This shows that this writing is after thought which the Chief Engineer has written subsequently in order to save his skin.
Unfortunately the Government is not taking notice in respect of the negligence of important persons of different departments which is causing huge loss to the Government ex-chequer. The Government should recover the losses caused to it by such employees who on account of negligence, nepotism or favouritism are found responsible for such loss. We have noticed that in land acquisition cases, no evidence is produced on behalf of the relevant department of the Government in support of its claim. But still on the request of the department the Government is preferring appeals before the Courts of law which are ultimately dismissed on account of lack of proof in support of the claim of the Government or such, department.
10. The second objection raised by the learned Advocate-General is without any force. The photo- stat copies of agreement-deed and the work-order furnished by respondent-contractor with his writ petition were admitted as correct by the petitioners, as answering defendants in the writ petition. Even with this review petition the learned Advocate- General has presented the photo-stat copy of the disputed agreement-deed. This agreement-deed was never presented before the Courts during the past protracted litigation0 between the parties, therefore, its genuineness cannot be accepted.
In view of the above, there is no need to issue notice to the respondents. This review petition in the light of the above discussion, having no substance, stands dismissed.