TALAAT QAYYUM QURESHI, J.---Messrs Allied Construction Company, respondent filed suit for recovery of 42,52,945 with profit at the rate of 8% and 18% from January, 1997 till date of recovery in the Court of learned Civil Judge-II, Karak. The said suit was resisted by appellant/defendant by filing written statement. The learned trial Court after framing as many as 7 issues, recording pro and contra evidence of the parties granted partial decree for Rs.38,68,587 alongwith interest at the rate of 18% from 1-3-1997 till the execution of decree vide judgment and decree, dated 21-12-1999.
Feeling aggrieved of the said judgment and decree, the appellant has filed the appeal in hand.
2. Barrister Khaliquz Zaman, the learned counsel representing the appellant argued that the learned trial Court has failed to properly appreciate the evidence available on record, therefore, the impugned judgment and decree are based on misreading/non---reading of evidence.
3. It was also argued that it was the burden of the respondent/plaintiff to prove its case which the respondent/plaintiff utterly failed to prove through cogent and reliable evidence.
4. It was also argued that though 7 issues were framed by the learned trial Court, but the burden to prove each issue was not apportioned between the parties i.e. It was not made clear by the learned trial Court as to which issue would be proved by which party, which has caused prejudice to the case of appellants.
5. It was further argued that the appellants had taken up the set-of plea regarding the cost of explosives, payment made for machinery and liquidated damages but the learned Court below failed to take into consideration the amount of set-of, hence committed illegality.
6. It was further argued that payments made by the appellants to respondent/plaintiff were not taken into consideration by the learned trial Court. Moreover, the respondent/plaintiff had not completed the work in accordance with terms of the sub--contract like as 'per clause (6.4) of the Contract, the respondent/plaintiff was liable to construct access road within the limit of Roadway K.M. 13 + 500 to K.M. 1.5 + 450, which it failed to construct, hence was not entitled for recovery of Rs.2,25,000 but this fact was totally ignored by the learned trial Court. Moreover, sum of Rs.10,00,000 (Rs. Ten lacs) had been acknowledged to have been received by the respondent/plaintiff but the learned trial Court failed to take notice of the said acknowledgment of respondent.
7. On other hand Messrs Qazi Muhammad Anwar and Haji M. Zahir Shah, Advocates the learned counsel representing the respondents argued that the respondent/plaintiff in paragraph No.4 of the plaint had clearly mentioned the work done and amounts received from the appellant/defendant, but the averments of the plaint were not denied by the appellant/defendant in their written statement in clear words, which amounts to admission of the facts mentioned in the plaint.
8. It was also argued that the respondent/plaintiff had placed on record voluminous evidence to support their case, but except Mr. Zahao who appeared as D.W.1, no other witness was examined by the appellants and the documentary evidence placed on record by respondent/plaintiff was not rebutted, therefore, the learned trial Court while correctly appreciating the evidence passed decree in favour of respondent/plaintiff.
9. It was also argued that the 'learned trial Court had failed to apportion the burden of issues on the parties, no prejudice had been caused to appellant and if they were aggrieved for non-assignment of burden of proving issues to the parties, they could have made an application to the trial Court for doing the needful, but the same was not done, therefore, appellant cannot raise this plea in the appeal.
10. We have heard the learned counsel for the parties and perused the record of the case carefully.
11. The 'brief facts of the case are that Messrs China Petroleum Engineering Construction Corporation was awarded the contract for construction and upgrading work on Indus Highway xxx -55 between Karapa and Karak by National Highway Authority. In September, 1995 the appellant entered into a sub-contract with Messrs Allied Construction Company, respondent for the execution of certain cut and fill works involving common or rock material on a 2.5 kilometre section of embankment at 12K + 950 and 12K + 450 of the N-55 Indus Highway. The respondent/plaintiffs' case is that it completed the work assigned to it according to the contract but was not paid the full amount for the works done, but on the other hand the case of the appellant is that respondent/plaintiffs failed to complete the work according, to the stipulated terms and he was paid fully for the work done by it. The divergent pleadings of the parties gave rise to the following issues:--
(1) Whether the plaintiff has got a cause of action?
(2) Whether this Court has got jurisdiction to entertain the present suit?
(3) Whether the suit is bad for non-joinder of necessary parties?
(4) Whether the, plaintiff has come to the Court with clean hands?
(5) Whether the plaintiff is estopped to sue?
(6) Whether the plaintiff is entitled to the decree for the recovery of Rs.42,52,945 alongwith 8% annual and 18% monthly interest as prayed for?
(7) Relief.
12. The main point which needs determination in this case is as to whether the respondent/plaintiff is entitled to the decree for recovery of Rs.42,52,945 alongwith interest or not. The answer to this question is in the affirmative. Plain reading of the plaint shows that in paragraph.No.3 of the plaint the respondent/plaintiff has mentioned the work assigned to it. Likewise in para. 4 of the plaint it has been stated that whatever work was assigned to it plaintiff performed the same within the stipulated time to the satisfaction of appellant/defendant and submitted bills from time to time. In paragraph No.5 of the plaint the amounts received by the respondent/plaintiff were mentioned.
The perusal of the written statement reveals that the above mentioned three paragraphs were not denied/controverted in clear words except the plea taken by the appellant that respondent/plaintiff failed to perform the agreement and that the amounts for unfinished work/items were deducted from the final bill of the respondent/plaintiff. As per Order 8, Rule 5, C.P.C., whenever the allegation of fact in the plaint, if not denied specifically or by necessary implications or stated to be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability provided that the Court may in its discretion required any fact so admitted to be proved, otherwise than by such admission. Although the facts mentioned, in the plaint were not denied, but still in order to prove its case, the plaintiff examined Nisar Ahmad P. W.1, who placed on record copy of his application for considering him as qualified Contractor Exh. P. W.1/1, sub-contract executed between the parties Exh. P.W.1/2, final bill Exh.P.W.1/3, receipt of the final bill Exh.P.W.1/4, approval's copy Exh.P.W.1/5. O.K. Reports for the work done consisting of 191 pages Exh.P.W.1/6, details of payments received by the respondent/plaintiff Exh.P.W.1/7. Two running bills paid by the appellant Exh.P.W.1/8 ad Exh.P.W.1/9, reply of notice by appellant to N. H. A. Exh.P.W.1/10, the explanation given by respondent/plaintiff Exh.P.W.1/11. He stated that the respondent/plaintiff had completed the work assigned to it but the appellant/defendant No.2 failed to pay for the work done. All the above mentioned documents were admitted in evidence without any objection from the appellant's side.
13. In rebuttal Mr. Zhao, Highway Engineer CPECC appeared as D.W.1: He produced final quantity bill Exh.D.W.1/1, receipt for payments made. Exh.D.W.1/2. Hiring charges of equipment Exh.D.W.1/3, amount for the explosive material used by respondent Exh.D.W.1/4, extract from agreement Exh.D.W.1/5. These documents were also admitted in evidence without raising any objection from the respondent's side.
14. Mukhtar Ahmad, Project Director NHA was examined as C. W.1, who placed on record various documents Exh. C. W. 1/1 to Exh.C.W.1/5.
15. The argument of the learned counsel for the appellant that the respondent/plaintiff had submitted final bill on 10-8-1997 Exh. D. W.1/1, which was not only on the letter head of the respondent/plaintiff, but was also signed by its representative and appellant paid a sum of Rs.82,73,093 in accordance with the said bill, whereas the stand of the respondent/plaintiff was that bill, dated 10-4-1997 Exh.D.W.1/1 was running bill and was not a final bill. It was on 24-11-1997 that a final bill Exh.P.W.1/3 was submitted by respondent/plaintiff to the appellant, which was duly acknowledged on 24-1-1997 vide receipt Exh.P.W.1/4. With the bill, dated 24-1-1997 the respondent/plaintiff has annexed details of the work done which according to the appellant was not correct. In order to examine as to whether the respondent/plaintiff had completed the work mentioned in Exh.P.W.1/3, the final bill, this Court examined the evidence produced by the parties.
Nisar Ahmad had appeared on behalf of plaintiff and stated that plaintiff had entered into an agreement (sub-contract) for execution of work mentioned therein with appellant/defendant vide Exh.P.W.1/2. The respondent/plaintiff, as per this witness has completed the work mentioned in the annexure with final bill Exh. P. W.1 3. The total amount for the work done comes to Rs.1,18,41,679, but respondent/plaintiff has been paid only Rs.79,73,092. A sum of Rs.3,84,358 is also due as interest, therefore, the total payable/outstanding amount against the appellant comes to Rs.42,52,945. As per this witness the respondent/plaintiff has performed the following work:-- The above mentioned work performed by the respondent/plaintiff is duly supported by Exh.P.W.I/6, which consists of 191 pages, each page shows the work done by the respondent/plaintiff which is duly checked by the consultant or the Engineer of the appellant. Not a single document has been placed on record by the appellant to rebut the above mentioned documentary evidence placed on record by the respondent. Oral assertion of the solitary witness produced by the appellant namely Mr. Zhao was not sufficient to rebut the voluminous and credit--worthy evidence which was duly authenticated by the consultant.
16. Secondly, neither in the written statement nor in the evidence led by appellant a single word has been stated disputing or challenging the correctness of Exh. P.W.1/3 or Exh.P.W.1/6, therefore, in absence of any rebuttal on the record in the shape of documentary evidence by the appellant, the documentary evidence produced by the respondent/plaintiff which was placed on record without raising any objection from the appellant's side was to be relied upon and the learned trial Court has rightly taken into consideration the said evidence. The assertion of Mr. Zhao, the Project Engineer CPECC that the respondent/plaintiff had performed the following work:--- S. No.Items of work Quantity
1. Clearing and Graving 32704 M2
2. Nature grant compaction 32704 M2
3. Embankment with Rock Material65544 M2"
The above statement was not backed by any documentary evidence, therefore, the same cannot be taken as correct.
17. So far as the construction and maintenance of access road as mentioned in Item No.6.4 of the agreement is concerned, the diversion road was not only constructed but was maintained also by the respondent/plaintiff because it was after the construction of the said road that respondent/plaintiff was able to transport plant and material to and from their work areas. The work done in this respect finds mention in second running bill at Serial No.5 Exh.P.W.1/8. This document was also placed on record without raising any objection from the appellant's side.
Moreover, the best proof for completion of this work is that the appellant had made the payment of the cost of access road mentioned in Exh.P.W.1/8. Had the access road not been constructed and maintained then why and how the appellant paid the said amount is a question which requires to be answered by the appellant.
18. So far as the hiring charges of Motor Grader, Roller and Machinery are concerned, the appellant has not denied having hired Motor Grader, Roller and Machinery.
19. The appellant has raised plea in the written statement that 24600 M3 Rock cutting was not done by the respondent/plaintiff, therefore, they were not entitled to get any amount for the same. The learned counsel representing the respondent stated at the bar that the agreement Exh.P.W.1/2 would show that the construction of embankment was to be done with common/rock material. If less rock was cut, it would not make any difference because the construction of embankment was completed and there was no separate item under the heading "cutting of common or rock" as such no deduction on account of less cutting of rock is justified and no deduction can be made. It was also stated that the respondent/plaintiff has not claimed any amount for cutting of 24600 M3 rock. The final bill Exh.P.W.1/3 shows 'that .The respondent/plaintiff has not claimed for 69000 M3, but has only claimed the amount for the work done. Mr. Mukhtar Ahmad, Project Director NHA, who was examined as Court-witness, placed on record copies of various documents Exh. C. W.1/1 to 1/5 and stated that the National Highway Authority had paid to the appellant for the work done by it. It is obvious from the statement of C.W.1 that whatever work was done by respondent/plaintiff, appellant has received the amount for the work done by respondent from Messrs National Highway Authorities, therefore, there is no lawful justification for the appellant to make less payment to the respondent/plaintiff for the work performed by it. The above discussion of the evidence led by the parties take us, to irresistible conclusion that the plaintiff had established its case through cogent documentary as well as oral evidence which could not be rebutted by appellant. The learned trial Court has rightly appreciated the evidence and we have not been able to find out any misreading/non---reading of evidence.
20. The argument of the learned counsel for the appellant that the learned trial Court had failed to apportion the onus of proof of issues on the parties, therefore, the appellant was prejudiced also has no force at all. It is settled law that each material proposition affirmed by one party and denied by the other forms the subject of distinguish issue. It is also a matter of common knowledge that issues are of two kinds i.e. Issues of facts and issues of law. The learned trial Court in the case in hand had framed as many as six issues. No doubt the onus of proof was not assigned to the parties, but the question which arises here is whether the non-assignment of burden of proof to the parties has caused any prejudice to the case of the appellant, answer to this question is in negative. Parties knew their case. They led the evidence, which they wished to adduce in support of their respective claims. No objection was raised by either party either about non-framing of any issue or about the apportionment of onus of proof. If the appellant was aggrieved for non- assignment of burden of proof to the parties, it could have raised an objection by filing an application before the learned trial Court, which was not done. The other remedy which was available to it was that it could file revision petition for non---apportionment of the onus/burden to prove the issue, which too was not done. Reliance in this regard is placed on Refique Saigol v.
Broome and Wellington (6, Minshull Street, Manchester) and another (PLD 1963 (W.P.) Lahore 455).
21. What to speak of causing prejudice for non-assignment of burden of proof to the parties, the august Supreme Court of Pakistan has even held that if issues are not framed, but allegations are made in the plaint and they challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such points and to give decision on it without framing any issue. In Province of East Pakistan v. Major Nawab Khawaja, Hassan Askary (PLD 1971 SC 82) it was; held:--- "He further contended that this point was not even taken in the notice under section 80 of the Civil Procedure Code. This objection was also taken in the High Court and was repelled on the ground that no prejudice has been caused to the appellant by not framing any specific issue on it. The parties have led evidence in support of their cases and it was on this evidence that decision has been given by the Courts below. In my opinion, the procedure adopted by the Courts below cannot be said to be illegal. If issues are not framed but allegations are made in the plaint and they are challenged in the written statement, it is open to the Court to allow the parties to lead evidence on such point and to give decision on it without framing any issue. "
22. Likewise in Fazal Muhammad Bhatt: and another v. Mst. Saeeda Akhtar and others (1993 SCM R 2018) it was held:--- "The pleadings and the issues as originally framed show that the parties were fully aware what was the subject---matter of controversy and what evidence was to be led by each one. The Court did not prevent the parties from leading evidence at the trial with regard to the defects in the gift. The non-framing of a specific issue in such circumstances is inconsequential. It was held by this Court in the Province of East Pakistan v. Major Nawab Khawaja Hasan Askary and others (PLD 1971 SC 82) that if issues are not framed but allegations made in the plaint are challenged in the written statement and the Court has allowed evidence to be led, then a decision rendered without framing of the issues is not illegal. That has been the established law in the sub-continent as would appear from Sayed Muhammad v. Fatteh Muhammad 22 Indian Appeals 4)."
23. Keeping in view the above mentioned dicta laid down by the august Supreme Court of Pakistan it can be safely held that no prejudice was caused to the appellant for non-assignment of burden of proof to the parties. The learned trial Court while rightly taking into consideration the averments of the written statement in which it was pleaded that the respondent/plaintiff did not perform its part of the contract had held that the burden to prove that the respondent/plaintiff failed to perform the agreement was on the appellant which it had failed to discharge. In M.R. Seturotnam Aiyar and others v. Venkatachela Goundan and others (AIR 1920 PC 67) it was held:--- "The question as to the burden of proof is not pertinent when the relevant facts are before the Court, and all that remains for decision is what inference should be drawn from them. "
24. The argument of the learned counsel that the appellant had taken up tote plea of "set-of" regarding explosive charges etc., but the same was not taken into consideration by the trial Court and that the appellant was entitled for "set-of" also has no substance in it. The perusal of the written statement shows that no plea of "set-of" was set forth in the written statement. It is the requirement of Order 8, Rule 6, C.P.C. That particulars of "set-of" must be given in the written statement. The said Rule is quoted below for convenience:--- "Where in a suit for the recovery of money the defendant claims to set-of against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the particulars of the debt sought to be set-of. Effect of set--of,---(2) The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-of; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. (3) The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-of. "
Since no plea regarding set-of was taken in the written statement, therefore, no issue regarding the same was framed by the learned trial Court. It was for the first time in the statement of Ms. Zhao that he mentioned certain amounts which were allegedly payable by respondent/defendant. The learned counsel for the appellant cited a judgment titled as "49 Fuller v. Happy Shopper Markets Ltd. And another" of English Jurisdiction, but the same has no relevance to the case in hand because in England legal "set-of" was allowed by the Courts of Common-Law and equitable "set- of" by the Courts of Equity. Moreover, the law of the land in respect of "set-of" is clear. In Niamat Ali v.
Jairam bass (PLD 1983 SC 5) it was held:-- "Thus a plea of legal set-of, in its essential character is a defence and a counter-claim combined, defence to the extent of the plaintiff's claim and a claim by the defendant in the suit itself for the balance. This rule read with Order XX, rule 19, C.P.C. Permits what is in essence a counter-claim of a specific kind, namely, where it is for an ascertained amount exceeding the plaintiffs claim in his suit for recovery of money. The doctrine of equitable set-of even in respect of an unascertained sum of money is based on the principle that if there be some connection between the, plaintiff's claim for a debt and the defendant's claim to set-of, it will be inequitable to drive the defendant to a separate suit. Instances of such equitable set-of are when the claims of the two parties arise out of the same transaction or transactions which can be regarded as one transaction or the cross- demands are so connected in their nature and circumstances that they can bet looked upon as part of one transaction.
Likewise in Syed Ahmad Saeed Kirmani v. Messrs Muslim Commercial Bank Ltd., Islamabad (1993 SCM R 441) it was held:-- "On the basis of this principle claim for an equitable set-of for an un-certained amount is maintainable. Where a party claims a set-of he has to comply with the rules of pleading contained in the Code of Civil Procedure. By claiming set-of in an amount which exceeds the claim of the plaintiff, the defendant in effect pleads to write of the plaintiff's claim and claims a decree for the balance amount. It is therefore, in the nature of written statement as well as a plaint/counter-claim for purposes of claiming the balance amount. Therefore, the rules of pleading should be followed in all cases including cases where damages are claimed. The claimant must state the particulars and basis of the claim and if it is quantified the basis of such quantification as well. It would not be a proper pleading in such cases to merely state that due to breach committed by the defendant the claimant is entitled to "damages. "
25. Since the appellant had failed to take up the plea of "set-of" in the pleadings, therefore, the learned trial Court rightly did not take into consideration the amount claimed by the appellant.
26. Keeping in view the above mentioned discussion, we are of the view that the respondent/plaintiff has successfully proved its case and the learned trial Court has appreciated the evidence properly. We have not been able to find out any misreading or non-reading of evidence or any illegality warranting interference.
27. So far as the decree with respect to the amount of interest at the rate of 18% is concerned, we feel that the same is on high side. As per clause 3.4 of the agreement Exh.P.W.1/2, in the event of non-payment within the period prescribed for the payment of bills interest would accrue to sub- contractor at the rate of 8% per annum upon all sums unpaid from the date on which the same should have been paid, therefore, keeping in view the above clause of the agreement the rate of interest is modified to 8% instead of 18%. The amount of the decree shall remain intact. With the above modification the appeal in hand is dismissed with no orders as to costs.
1.Clearing and graving, 27787.553 M2 2.Nature grant compaction 27787.553 M2 3.Formation of embankment with common material6205.266 M3 4.Formation of embankment of rock material 51742.527 M3