CH. IJAZ AHMAD, J.--- The brief facts out of which present appeal arises are that the appellant published a short tender notice for the supply of articles consisting of following articles on hire/rent basis in daily JANG' in its publication dated 17.4.1987 which were required for a function to be arranged by the appellant on the tour of the then Prime Minister of Pakistan, at Thang:-
(i) Sofa Set Fancy;
(ii) Chair Parachute (i.e) Chair Pipe Plastic;
(iv) Chair Nawari;
(v) Qalin (Carpet) Fancy
(vi) Carpet Red in Colour;
(vii) Qanat Gulqari;
(viii) Darri;
(ix) Shamiana Gulqari.
2. The respondent submitted tender for the supply of said articles which was accepted by the appellant oh 20.4.1987. The appellant also issued a work order to respondent/plaintiff on 23.4.1987.
Appellant also. Advanced a sum of Rs.2,00,000/- to the respondent in furtherance of the expenses of tender which was received by the respondent on 25.4.1987. The respondent supplied the aforesaid articles to the appellant and performed his part of the obligation allegedly to the entire satisfaction of the appellant and local administration. Respondent submitted bills for Rs.12,30,294 with the following break-up:-
(i) Bill for the rent of the Articles suppliedRs.11,18,104.00
(ii) Bill for breakage/shortage of the Articles.Rs. 1,12,190.00 The appellant failed to pay the said amount to the respondent /plaintiff. The respondent/plaintiff being aggrieved filed a suit for recovery of Rs.7,29,294/- alongwith compensation of 20% per annum on 25.1.1989 before the learned Civil Judge, 1st Class, )hang. The contents of the plaint reveal that a sum of Rs.601000/- was paid to the respondent/plaintiff by the ' appellant/defendant and the remaining amount of Rs.7,29,294/- was withheld without any justification. The contents of the plaint further reveal that a sum of Rs.18030/- was deducted as income tax from the bill. The respondent/plaintiff approached the appellant that the appellant has no justification or excuse to back out or reduce the rates once the contract had been duly performed. The appellant filed written statement, controverted the allegations levelled in the plaint. Out of the pleadings of the parties the Trial Court framed the following issues.-
(1) Whether the defendant withheld payment of Rs.5,17,104 without justification out of the bills submitted by the plaintiffs regarding the supply of furniture, etc. On the eve of visit of the Prime Minister? OPP
(2) Whether the plaintiffs are entitled to, recover Rs.1,00,000/- as compensation for discomfort, mental torture and travelling expenses, etc. As detailed in para No, 11 of the plaint? OPP
(3) Whether the plaintiffs are entitled to get compensation at the rate of 20% as profit on -the amount due in connection with the disputed bills? OPP
(4) Whether the plaintiff has no cause of action/locus standi to bring the suit? OPD'
(5) Whether the plaintiffs are estopped by their act and conduct to bring the suit? OPD
(6) Whether the suit is time-barred? OPD
(7) Whether this Court lacks jurisdiction to try the suit? OPD
(8) Whether the suit is not maintainable in view of preliminary objections Nos. 5 and 7? OPD.
(9) Whether the material supplied by the plaintiffs was sub-standard? OPD.
(10) Whether a Committee including the representative of the plaintiffs was instituted regarding the payment of the disputed bills and on the report of the said Committee Rs.527000/- due to the plaintiffs were sanctioned fro payment to the plaintiffs? OPD.
(10-A) Whether the plaintiff is entitled to recover Rs.1,12,190/- from the defendant for breakage and shortage of the articles supplied at the occasion? OPD
(11) Relief.
3. The Trial Court decided all the issues in favour of the respondent/plaintiff except issue No. 2 and decreed the suit to the extent of Rs.6,29,294/- with profit at the rate of 6% per annum from the date of institution of the suit to the payment of decretal amount and with costs, vide impugned judgment and decreed dated 26.4.1992, hence the present appeal.
4. The learned counsel for the appellant submits that some dispute arose between the appellant and the respondent after the function was over to the extent that sub-standard articles were supplied by the respondent/plaintiff. A Sub-Committee was constituted consisting of 8 persons including the respondent. The Committee had given report against the respondent/plaintiff on 6.2.1988 which was produced before the Trial Court and marked as Ex.D/1. The report Ex.D/1 reveals that respondent/plaintiff was guilty of supplying substandard articles which were not in accordance with the agreement arrived at between the appellant and the respondent/plaintiff, therefore, respondent/plaintiff was not entitled to any amount over and above which had already been paid by the appellant. The learned Trial Court has erred in law to ignore the report of the Sub- Committee on surmises and conjectures. The respondent/plaintiff had given his consent for constitution of Sub-Committee, therefore, the respondent/plaintiff was not in a position to wriggle out from the report of Committee on the well-known principle of estoppel and waiver. According to him this fact has not been considered by the learned Trial Court in its true perspective. He further submits that report was duly proved on record by the appellants by producing DW-2 Allah Ditta Sub-Engineer. He further submits that the Trial Court has erred in law to discard the evidence of the appellants on surmises and conjectures. He further urges that respondent/plaintiff did not prove his case by producing independent witnesses, the respondent/plaintiff produced contractors who had given the articles to respondent/plaintiff, therefore they are interested witness, the Trial Court decided the case by misreading and non-reading of the record.. He further urges that when the respondent/plaintiff had adopted a specific procedure for settlement of the dispute with the, appellant then respondent/plaintiff had no authority to file a suit for recovery against the appellant on the well-known principle of approbation and reprobation. He further urges that Trial Court misread Ex.D/1 Ex.D/4 and Ex.D/5. (The competent authority constituted a Sub-Committee consisting of following persons:- ( 1 ) A.D.L.G.
(2) Chief Officer.
Ch. Muhammad Boota, Councilor. Muhammad Nawaz Bhatti, Councilor. Nasir Mehmood, Councilor.
Rana Allah Ditta, Sub-Engineer. Malik Muhammad lqbaL and
(8) M. Nadeem.
The committee submitted its report on 6.2.1988 which was approved by the house of the appellant, which is attached as-Ex. D/5.
5. The learned counsel for the respondent/plaintiff submits that the Trial Court has given finding of fact against the appellant after proper appreciation of evidence. He further. Submits that report of the Sub-Committee was not signed by the respondent/plaintiff therefore, Trial Court was justified to discard the ex parte report against the respondent/plaintiff. He further submits that the rates were agreed between the parties before the supply of goods as is evident from Ex.P/19 (page 56 of the paper book). The respondent/plaintiff submitted bills to the appellants after supplying the articles in accordance with the terms cf the agreement. The appellant did not raise any objection at the time of supply of aforesaid articles, therefore, appellant had no authority under the law to raise such type of objections that the articles supplied by the respondent/plaintiff were substandard, at a belated stage. He further urges that appellant did not produce any independent evidence on record to show that the respondent/plaintiff did not supply the articles in terms of the agreement arrived at between the parties and the appellant only produced DW-2 Allah Ditta who is admittedly employee of the appellant, therefore, he was interested witness.
6. We have given our anxious consideration to the contentions of the learned counsel for the parties and perused the record ourselves.
7. It is admitted fact that report of the Sub-Committee was not signed by the respondent/plaintiff and therefore, Trial Court was justified to reject the ex parte report of the Sub-Committee: It is pertinent to mention here that the appellant failed to bring on record any document to show that the aforesaid report of the Sub-Committee (Ex.D/1) was bi-ought to the notice of the respondent/plaintiff. The appellant admittedly did not produce any independent witness to dislodge the claim of the respondent/plaintiff whereas the claim of the respondent/plaintiff in respect of amount in dispute had thoroughly been corroborated by oral as well as documentary evidence produced on record. As mentioned above evidence produced by the appellant/defendant in rebuttal was not confidence inspiring. Respondent/plaintiff not only himself appeared as his on witness but also produced witnesses i.e. PW-1 Muhammad Nawaz, PW4 Sardar Muhammad, and PW-6 Haji Ashiq Hussain who had supplied the article sin question to the respondent/plaintiff for the purpose of onward supplying the articles to the appellant. Therefore, oral evidence of respondent/plaintiff was further corroborated by documentary evidence brought on the record. The Trial Court has appreciated the evidence of the respondent/plaintiff in-depth.
We have re-appraised the evidence, perused the record and have reached the same conclusion as were drawn by the Trial Court (except the finding on issue No. 10-A). In reaching this conclusion we are fortified by the following judgments:- Consolidated Shipping. (Pvt.) Ltd. v. Bamber Shipping A.-G. Anelestrasse (38 F.L. 9490, Vaduz/Liechtensteint West Germany and another (1991 M LD 1367); and Ch. Sher Muhammad v. Messrs Rooldoo Muhammad Din and Co. (1988 CLC 1852).
8. In view of what has been discussed above we upheld the finding of the Trial Court on issues Nos.
1 to 10, however, we find that the learned Trial Court decided issue No. 10-A in favour of the respondent/plaintiff on surmises and conjectures. The respondent/plaintiff failed to bring on record sufficient material to prove issue No. 10-A, therefore, Trial Court erred in law to decide issue No. 10-A in favour of the respondent/plaintiff, therefore, on re-appraisal of the evidence we have come to the conclusion that, findings on issue No. 10-A are not based on any cogent evidence on the record and are reversed.
9. In view of what has been discussed above, we partly accept the appeal and modify the judgment and decree of the Trial Court to the extent of issue No. 10-A, thus, suit of the respondent/plaintiff is decreed to the extent of Rs.5,17,104/- with profit at the rate of 6% per annum from the date of institution of the suit to the payment of the decretal amount and with costs.