The Chairman, WAPDA (Powers) alongwith three others have, questioned the correctness and legality of the judgment and decree dated 29-6-2000 passed by the learned District Judge, Swabi whereby with a slight modification by way of reducing the amount of respondent No.1 dismissed the appeal of the petitioners and the judgment and decree dated 19-3-1996 of learned Senior Civil Judge, Swabi was upheld.
2. The short facts of this case are that respondent No. 1 was given some work for carrying out construction of the internal roads at river view colony Tarbela. The conditions between the parties were reduced into an agreement Exh. P.W.1/2 and work order Exh.P.W.1/1 was issued to the contractor respondent No.1. Initially the work was required to be completed within 360 days but subsequently it was extended by the petitioners. 10% of the approved bill was to be deducted from respondent No.1 as security amount. The petitioners used to pay timely bills to the respondent on the basis of work done. The last bill submitted by respondent No. 1 was for a sum of Rs.2,25,000 but the same was not paid on the ground that the work done was defective and the bill was also below the payment limit. It may be recalled that one of the postulated conditions of the agreement deed was that a bill less than two lac rupees shall not be submitted. It was objected that in fact the work done was worth Rs.90,000 and not of Rs.2,25,000. Thus the bill was termed as below the payment limit. For want of mutual settlement respondent No filed a civil suit against the petitioners for the recovery of Rs.5,81,900 which included Rs.2,25,000 as the amount for the work done at site, Rs.90,000 as security amount, Rs.20,000 as service charges on account of illegal retention of the constructional plant, wheel type water tank and shuttering goods belonging to the respondent.
Interest at the rate of Rs.14% per annum was also solicited for the period from 19-4-1991 till 18-4-1991 and further till payment of the claimed amount.
3. The suit was contested by the petitioners and after framing issues generated by the rival pleadings the parties adduced their evidence as they willed. The trial ended in passing of a decree in favour of the respondent and the appeal filed by the petitioners also could not earn a satisfactory success for the petitioners.
4. It is noteworthy feature of the case that the petitioners have admitted that Rs.90,000 as security deduction and the constructional instrument as mentioned in the plaint have been retained by them.
5. The learned counsel for the petitioners has argued that the respondent No.1 had not-succeeded in proving that he had done work of the value of Rs.2,25,000. He contended that the petitioners have assessed the work done to the extent of Rs.90,000.
6. The learned counsel for the respondents has defended the impugned judgments and decrees on the grounds stated therein.
7. I see no force in the contentions of the learned counsel for the petitioners as the bill prepared by the respondent for a sum of Rs.2,25,000 was on the basis of the measurement book of the petitioners. It was admitted before me that the measurement book is prepared on the basis of the measurement of the work done by the contractor by a Sub-Engineer who is a functionary of the petitioners. The contractor has no access to interfere with the measurement book. The measurement book, copies whereof have been placed on file, has not been disowned by the petitioners. No other document was pointed out by the learned counsel for the petitioners having a tendency to show that according to the measurement of the work done it was found worth Rs.90,000. Measurement book stood established and the bill was the outcome of the said measurement book. The other contention that is raised by the learned counsel for the petitioners is that the completion of the work was delayed by the respondent and as such he was not entitled to the impugned bill. This argument is also not tenable as the contractual period was extended by the petitioners. The work was carried out under the supervision of the field staff of the petitioners and on its completion the functionary of the petitioners measured the work on the spot and entered the same into the relevant book i.e. Measurement book. Thus by all standards of implications it can safely be inferred that the work done which was the subject-matter of the impugned bill was carried out by the consent of the petitioners. And as such the factum of the alleged delay cannot be allowed to operate as a factor depriving the respondent from the amount that he had spent on the work done. It is also a matter of evidence that in the cross-- examination P.W.2 stated that the work was delayed due to the non-pointation of the platform and drainage by the petitioners for which so many reminders were also issued. It was added argued that the work of the respondent was not satisfactory. I am afraid no such evidence was highlighted from which such an argument could receive any support.