1. 'Through these applications bearing C.M.As. Nos.8267, 8270 and 8273 of 2001 in Suit Nos.1033 of 1998, 1034 of 1998 and 344 of 1999 under Order XLVII read with section 151, C.P.C. The plaintiff seeks review of the order, dated 1-9-2001 in the above suits after the Honourable 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 application/s in all the three suits with a view to bringing to bear the above situation upon the facts of these cases relating to quantification 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. Khawaja, learned counsel for the plaintiff, in view of the above order of the Honourable Supreme Court stressed his arguments on the ground that after a detailed report was submitted by the Official Assignee who acted as Commissioner in the above matter followed by no objection on behalf of the defendant, the said report dated 24-3-1999 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 tiled 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 fide 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 Honourable Supreme Court and as such the order dated 1-9-2001 is liable to be set aside.
5. Reliance is placed on the cases of Akbar Ali and others v. Province of Punjab and others 1990 CLC 718, Zaheer-ud-Din and others v. Mst. Khurshida Begum 1996 CLC 580 and Muhammad Nisar Dossa and 5 others v. Muhammad Hussain Dossa and 16 others PLD 2000 Kar.
6. 283.
7. ' Mr. Arif Khan, learned counsel for the defendant, has opposed the application on the ground that neither any appeal vac 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 Honourable Supreme Court was passed on 4-10-2001. The application for obtaining certified copy was moved on 6-10-2001, copy was compared and ready for delivery on 12-10-2001 but was collected on 18-10-2001 and as such present application filed on 31-10-2001 is barred by limitation.
8. ' His next contention is that the present application is second review application which is hit by the provisions of Order XLVII, rule 9(1), C.P.C. And without bringing this fact to the notice of the Honourable Supreme Court the mere fact of withdrawal of the application with a definitive finding would not override the statutory provision. In support of his contention learned counsel has placed reliance upon the case of Muhammad Ali v . Malik Bashir Ahmed and 2 others 1997 SCM R 622.
9. Learned counsel has also pointed out that no fresh grounds have been pleaded but only earlier grounds are repeated. That the Official Assignee has only measured the work at the request of the contractor as the order dated 21-9-1998 passed by this Court was only for the purpose of measurement of work and for this reason the report submitted in pursuance of the order did not reflect upon the quality of work done by the contractor. With a view to distinguish the application Mr. Arif Khan stated that the application, C.M.A. No,10976 of 1996 was moved with the object of determining the quality and quantity of defective work, which was not dealt with earlier, as the earlier report of the Official Assignee only pertains to the measurement and no quantitative analysis was carried out by the Official Assignee. In this context learned counsel further argued that the evidence was necessary to prove the issue pertaining to the liability on account of the defects in the work which came to notice subsequently and are covered under Issue No,7 settled by the 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 application is not maintainable. Learned counsel has further 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 but burst at the pressure of 2.2 bars showing much inferior quality. The test report to this effect was obtained from the K.D.A. 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.
10. ' 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 Encyclopaedic English Dictionary which are reproduced as follows:-- "Quality 1.n 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, show 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 qualite f.L qualities "statis (quails of what kind; see ITY)].
11. Evaluate 1. Assess, appraise.
2. A find or state the number of amount of. B find a numerical expression for. Evaluation.
12. Evaluative/adj. Evaluator n. (back-form. F. Evaluation f.F. Evaluation f. Evaluer (as E-Value)."
13. ' 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.
14. 75.
15. ' In view of the observations of the Honourable 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 by 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 calls 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 facts 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.
16. ' Learned counsel for the plaintiff was unable to show that such no objection to the first report pertains to matters beyond the contents of the report and the defendant gave up his right, to any further investigation to determine the quality and quantity.
17. ' The application for review of the order dated 27-11-2000 appointing Messrs NESPAK to investigate the matter and submit their report, the review was decided vide orders dated 1-9-2001.
18. ' The appointment of a subsequent Commissioner to further investigate into the matter in the present case when the report of Official Assignee itself state that certain measurement could not be recorded. Secondly as a result of discovery of defects that came to the knowledge of the defendant latter while the matter was under adjudication a situation is prima facie created where it has become necessary to consider the appointment of a Commissioner to achieve something which the previous one failed in achieving. The object of issuance of a commission for local investigation under the provisions section 41 read with the Second Schedule to Arbitration Act, 1940 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.
19. 75.
20. ' 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 TLR The King's 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, althea bad concrete must be made good.
21. Similarly defective work discovered after issue of requisite certificate by the surveyor, after payment was made and the work was handed over the contractor and even the period of maintenance provided under the contract had expired was held legally investigated by a new surveyor and the work badly done in the vicarage - road and Hampton wick-roads was required to be re-executed. On failure of the contractor the claim for costs incurred after the sewer was taken up and re-laid with concrete and flagstones were allowed in Cunliffe v. The Hampton Wick Local Board (1893) 9 TLR 378.
22. ' In case of Akbar Ali (supra) the facts are quite distinguishable from the facts of this case and no point with regard to a report on quality and quantity discovered subsequently is discussed as in the present case is.
23. ' In case of Zaheer-ud-Din (supra) cited by learned counsel for the plaintiff, the question was pertaining to cross-examination of the party before the Commissioner and the Court was of the view that such an omission cannot be supplied by the Court at' a later stage. However, no such question is involved in the present case.
24. ' In case of Muhammad Nisar Dossa (supra) the objection raised by the shareholders who themselves refused to participate in the elections held under the orders of the Court through the Official Assignee acting as Commissioner, was dismissed and the report of the Commissioner was upheld.. This case is distinguishable from the facts of the present case.
25. ' In addition to the above.It was also' pointed out by Mr. Arif Khan that the learned counsel for the plaintiff has not brought to the notice of the Honourable Supreme Court the fact that the matter has already been considered in review and a second review of the same order is barred under the provisions of Order XLVI, rule 9, C.P.C. However, it is not necessary to go into details of the same as I am of the humble opinion that in view of the above discussion in pursuance of the observations of the Honourable Supreme Court, the (measurement) quantification covered by the first report on 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 counsel have been explained above.
26. Accordingly, these applications are dismissed alongwith C.M.As. Nos.8266, of 2001, 8269 of 2001 and 8272 of 2001 calling for suspension of the order dated 1-9-2001.