' JAVED IQBAL, J.---This appeal under Article 185(2d) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the judgment, dated 12-11-2002 passed by Peshawar High Court in Regular First Appeal No, 7 of 2002 whereby the appeal preferred on behalf of appellant has been dismissed and judgment and decree passed on 21-12-1999 of learned Civil Judge, Karak has been affirmed to the extent of decretal amount and the rate of interest has been modified to 8% instead of 18% per annum.
2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that M/s. China Petroleum Engineering Construction Corporation was awarded the contract for construction and upgrading work on Indus Highway 55 between Karapa and Karak by National Highway Authority. In September, 1995 the appellant entered into a sub-contract with M/s. 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 pf the N-55 Indus Highway. The respondent/plaintiff s 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 thatrespondent/plaintiff 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."
3. The learned trial Court, after completion of mandatory formalities and recording the evidence pro and contra, decreed the suit for Rs,38,68,587 alongwith interest at the rate of Rs,18% with effect from 1-3-1997 till the execution of decree by means of judgment and decree, dated 21-12-1999.
Being aggrieved an appeal was preferred which has been rejected by the learned High Court vide judgment impugned, hence this appeal.
4. Sardar Liaqat Ali, learned Advocate Supreme Court entered appearance on behalf of appellant and contended strenuously that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is argued that the conclusion as arrived at by the learned trial Court and affirmed by the High Court has no nexus whatsoever with the evidence which has come on record which in fact was never perused diligently. It is also contended that Exh.P.W.1/1 to Exh.P.W.1/5 and Exh.P.W.1/6 being inadmissible could not have been considered by the Courts below which aspect of the matter has been ignored without any rhyme and reason and the authenticity, legality and validity of the documents got exhibited on behalf of respondent could not be determined and in absence whereof no decree could have been passed in favour of the respondent. It is urged emphatically that Exh.P.W.1/6 which consists of 191 pages qua the details of work and considered as admissible by the Courts below was never admitted or approved by the consultant which should have been discarded. It is further contended that full and final payment amounting to Rs,82,73,093 was made to the respondent on their final bill (Exh.D.W.1), dated 10-7-1997 and no subsequent claim could have been entertained by the Courts below. It is urged with vehemence that theclaim of set-off as stated by Mr. Zahao in his statement was not considered at all which resulted in grave prejudice against the appellant.
5. Raja M. Akram, learned Senior Advocate Supreme Court appeared on behalf of respondent and supported the judgment impugned for the reasons enumerated therein with the submission that respondent has substantiated its claim by producing worthy of credence oral and documentary evidence which could not be rebutted.
6. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. We have thrashed out the entire oral and documentary evidence with the eminent assistance of learned counsel and gone through the judgment of learned Civil Judge, Karak as well as judgment impugned. After having gone through the entire record we are of the considered view that respondent has substantiated its claim by producing cogent and concrete evidence which has rightly been considered and relied upon by the Courts below. We have perused the plaint thoroughly wherein all the details qua the work done within stipulated period have been mentioned. Besides that the amount received for the work done has also been mentioned in an unequivocal manner which could not be controverted in the written statement. The claim of set-off was never pleaded in accordance with the provisions as laid down in Order VIII, Rule 6, C.P.C. Which, inter alia, provides that "where in a suit for the recovery of money the defendant claims to set-off 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 till the same character as they fill in the plaintiff's suit, the defendant may, at the firt 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-off". A careful perusal of the written statement would reveal that the claim ofset-off was never pleaded which should have been pleaded in an unamibiguous manner in the written statement. There is no denying thefact that the effect of set-off pleaded in a written statement is that suchstatement shall have the same effect as a plaint in cross suit. In this regard we are fortified by the dictum laid down in case titled AhmadSaeed Kirmani v. Muslim Commercial Bank Limited 1993 SCM R 441.
' The claim of set-off could not have been made by Mr. Zahao while his statement was being recorded which could not be pleaded in a specificmanner at the opportune moment and has rightly been discarded. If any authority is required reference can be made to Niamat Ali v. Jairam Dass PLD 1983 SC 5.
7. The respondent has substantiated his claim by producing worthy of credence evidence. We have carefully examined the statement of NisarAhmad P.W.1 who got exhibited various documents, Exh.P.W.1/1 (subcontract executed between the parties), Exh.P.W.1/2 (final bill), Exh.P.W.1/3 (receipt of final bill), Exh.P.W.1/5-6 (details qua the work done and details of payment of receipts), Exh.P.W.1/7 (running bills), which could not be rebutted. No objection whatsoever was made regarding the admissibility of above mentioned documents which objection cannot be allowed to raise before this Court which was never agitated either before the trial Court or learned High Court. Nisar Ahmad (P.W.1) was never questioned regarding the genuineness, validity and authenticity of the above mentioned documents which amounts to admission. We are not persuaded to agree with the main objection of learned Advocate Supreme Court on behalf of appellant regarding the authenticity and genuineness of Exh.P.W.1/6 consisting of 191 pages indicating the details of work got done through the respondent for the reasons that each page of Exh.P.W.1/6 was signed by the representative of the appellant. It is not the case of appellant that Exh.P.W.1/6 consisting of 191 pages was never signed by their representative. How the admissibility of a document prepared on behalf of the appellant duly signed by its representative could have been challenged which was admitted before trial Court without raising any objection worth the name and moreso, its authenticity and genuineness was never challenged.
8. We have also adverted to the statement of Mukhtar Ahmad, Project Director of National Highway Authority whose statement was got recorded as Court witness and by whom a few documents Exh.C.W.1/1 to Exh.C.W.1/5 were got exhibited which could not be rebutted. Mukhtar Ahmad has stated in a categoric manner that entire payment for the assigned work had been made to the appellant. It is not understandable that after receiving the entire amount why payment could not be made to the respondent being sub-contractor by whom the said work had been completed.
The statement of Mr. Zahao, the Highway Engineer CPECC hardly renders any assistance to the case of appellant as no documentary evidence could be produced showing that the work assigned to respondent was never completed.
9. In the light of what has been stated above the respondent has proved its claim by producing cogent and concrete oral evidence duly supported with various documents which could not be rebutted. The question as to whether the work assigned to respondent has been completed or not being a question of fact has been determined by the learned trial Court after appreciating the evidence with diligent application of mind, determination whereof has been affirmed by the High Court which being unexceptionably cannot be reversed by this Court without sufficient lawful justification which is lacking. It is well-settled by now that this Court cannot undertake the task of re-appraisal of evidence unless its substantial departure from settled principles concerning appreciation of evidence has been made. This Court does not interfere in concurrent findings of fact save in most exceptional circumstances which are not available in this case. It is worth mentioning that usually this Court does not interfere in the conclusion of the High Court which appears to be based upon adequate evidence both oral as well as documentary. In this regard we are fortified by the dictum laid down in the following authorities:--- ' Abdul Majid and others v. The State 1971 SCM R 31; British India Steam Navigation Co. Ltd. v. Abdul Razak-Abdul Kader PLD 1967 SC 68; Shamshad. Ali Shjah and others v. Syed Hassan Shah and others PLD 1964 SC 143; Sarfaraz Ali Khan v. Crown PLD 1951 FC 41; Muhammad Sharif v. Abdul Majid 1986 SCM R 190; Mst. Sadiq Jan v. Muhammad Rashid and others 1985 SCM R 860; Siraj Din v.
Naseeruddin and another 1977 SCM R 511; Jalal alias Jalla and 4 others v. The State 1972 SCM R 273; Md. Anwarullah Mazumdar v. Tamina Bibi and 5 others 1971 SCM R 94; Safdar Muhammad and another v. Akram and others 2002 SCM R 807; Khair Din and others v. Ch. Qudrat Ullah 1986 SCM R 763.
No jurisdictional flaw, error or misreading/non-reading of evidence could be pointed out by the learned Advocate Supreme Court on behalf of appellant on the basis whereof the conclusion arrived at by the learned trial Court and duly concurred by the learned High Court being well based could be reversed. The appeal being meritless is dismissed with no order as to costs.