' MUHAMMAD SAIR ALI, J.--- Regular First Appeal No,80 of 1995 and R.F.A. No,288 of 2002 arise from the same judgment and decree dated 29-11-1994 wherefore the two appeals are decided through this judgment.
2. Appellant on 2-3-1993 filed a suit for recovery of Rs,4,62,790 against the recpondent on the basis of an oral agreement of May, 1992 to construct a shop for the respondent at the rate of Rs,170 per square foot for the ground floor and Rs,210 per square foot for the first floor. In his plaint, appellant as plaintiff claimed to have completed his part of the agreement in September, 1992 by constructing the said shop at a total price of Rs,7,14,260 and pleaded that respondent paid only a sum of Rs,2,68,000 out of the said bill. Appellant thus, sought decree for recovery of the purported balance amount of Rs,4,62,790 through the suit alongwith interest under section 34 of Civil Procedure Code.
3. Respondent filed a contesting written statement and raised a counter-claim for recovery of Rs,60,000 against the appellant, by stating his defence in paras.3 and 4 of the written statement as under:-- "3. .... In September, 1992 the plaintiff handed over a bill statement prepared in his own hand writing and according to that statement the plaintiff showed total amount as Rs,7,768,710 and Rs,5,60,000 were accepted as received in advance and the balance was shown as Rs,2.08,710. It is pertinent to submit here that in the present suit the total cost is shown as Rs,7,14,260 which clearly proved that the previous calculation of the plaintiff was wrong.
4. In fact when the plaintiff handed over the above said statement to the defendant, the defendant issued the following cheques in the name of the plaintiff:
(i) Cheque No,92248797 dated 15-10-1992, Rs,1,00,000,
(ii) Cheque No,34900101 dated 20-10-1992, Rs,1,00,000, and these cheques were encashed by the plaintiff. After that the plaintiff again demanded Rs,60,000 for the work which was yet to he done but did not do up till now and defendant again issued a Cheque No,34900105 dated 21-11-1992 amounting to Rs,68,000 (8 thousand previous balance) which amount was received by the plaintiff from the bank on 22-11-1992 and in this way the plaintiff received total amount of Rs,8,28,000 and in this way even if the previous calculations of the plaintiff are considered as correct, then the plaintiff received Rs,1,14,740 in excess against his own prepared bill. And if the present cost mentioned in the present suit is considered as correct, then the plaintiff received Rs,1,14,740 in excess from the defendant. However, the defendant claims Rs,60,000 from the plaintiff as set-off on the basis of previous calculations."
4. From the pleadings of the parties following issues were framed:--
(1) Whether the plaintiff constructed ground floor and first floor as per settlement between the parties? OPP
(2) Whether the cost of construction is Rs,7,14,260? OPP
(3) Whether the plaintiff is entitled to receive Rs,4,46,260 from the - defendant as outstanding amount? OPP
(4) What is the exact calculation and measurement of covered area? OPD
(5) Whether defendant is, entitled to receive Rs,60,000 from, the plaintiff? OPD
(6) Whether the plaintiff has received an amount of Rs,60,000 in excess? OPD
(7) Relief.
5. In evidence appellant appeared as his own witness (P.W.1) while respondent presented two witnesses i,e,, D.W.1 and D.W.2 including himself appearing as D.W.2. Respondent also brought on record during appellant-plaintiff's cross-examination as Exh.D.1 the alleged bill given to him by the appellant for the construction of the shop.
6. The learned Civil Judge, Lahore through judgment and decree dated 29-11-1994 deciding Issues Nos.2, 3 and 6 against the appellant-plaintiff and Issues Nos.4 and 5 against the respondent- defendant, dismissed appellant's suit as well as respondents' counter-claim in the form of set-off.
7. Appellant, feeling aggrieved, assailed the above said judgment and decree dated 29-11-1994 of the learned Civil Judge, Lahore through present appeal Regular First Appeal No,80 of 1995 tilted Khurram Bashir v. Muhammad Khalid while the respondent against rejection of his counterclaim of Rs,60,000 filed an appeal in the Court of learned District Judge, Lahore owing pecuniary constrains.
Since Regular First Appeal No,80 of 1995 was pending .In this Court against judgment and decree dated 29-11-1994 therefore, respondent's appeal against the same judgment and decree was lifted from the Court of learned District Judge, Lahore and was numbered as Regular First Appeal No,288 of 2002 titled Ch. Muhammad Khalid v. Khurram Bashir. Both the appeals were heard together.
8. The learned counsel for the appellant read out the deposition of the appellant as P.W.1 to state that appellant had proved his case and the learned trial Court illegally held Issues Nos.2, 3 and 6 against the appellant. Contrarily, the learned counsel for the respondent supported the impugned judgment and decree to the extent of dismissal of appellant's suit and by re-analysing the contents of Exh.D.1 claimed Rs,60,000 as set-off against the appellant.
9. We have considered the submissions of the leaned counsel for the parties and have also examined the pleadings and evidence presented by the parties.
10. In our opinion, decision of the case entirely hinges upon the admitted document brought on record as Exh.D.1 by the respondent by confronting the same to the appellant-plaintiff (P.W.1) during his cross-examination. Appellant admitted that Exh.D.1 was written in his hand but stated that Exh.D.1 was the estimate given by him to the respondent prior to commencement of construction. Appellant however, did not deny, rebut or disprove the contents of Exh.D.1. He only denied that Exh.D.1 was the final bill to the respondent given in September, 1992. Contrarily, the respondent as D.W.2 in his deposition stated that appellant in August, 1992 gave him the final bill (Exh.D.1) for Rs,7,68,000 for the construction of the shop and that appellant therein admitted to have received a sum of Rs,5,60,000 in advance thereby claiming in Exh.D.1 the outstanding balance amount of Rs,2,08,71.0 only Exh.D.1 is thus an admitted document. Appellant claims Exh.D.1 to be an estimated bill while respondent claims it to be the final bill for construction of the shop. Respondent on the basis of concluding entries in Exh.D.1 also pleaded set-off for Rs,60,000 stating that the same has been admitted in Exh.D.1 by the appellant.
11. In our opinion the bare reading of Exh.D.1 adequately determines the status and nature of this document. The first two entries relate to exact covered area of ground floor and the first two entries square footage) which have been multiplied by agreed rates of Rs,170 for ground floor and Rs,210 for the first floor to reach the construction cost of the two floors. The third entry in Exh.D.1 is the cost of stairs. These entries being relevant are reproduced hereunder: Rate ground floor 87-6" x 21-6" = 18816 sft x 170=3,19,770 87-6" x 21-6" = 1881 sft x 210=3,95,010 Stairs 15,000 Total7,29,780 ' After the above entries, exact measurement to fractions of RCC beam, its cost per square foot at the rate of Rs,70, consumption of steel in exact running footage alongwith its weight (728 kilograms to be exact) at the rate of Rs,16 has been worked out. Similarly exact measurements of brick work and bath tiles with their rates and total cost have also been calculated in Exh.D.1. In the concluding part total construction cost has been worked out to be Rs,7,68.710 and from this cost advance amount of Rs,5,60,000 has been decreased to reach the outstanding balance of ' Rs .2,08,710.
12. We are thus of the considered opinion that exactitude of covered area of each floor, definite measurements of RCC beam, bricks and tiles and steel weightage multiplied by the rates charged adds up-to the total amount of construction cost claimed in Exh.D.1 by the appellant from the respondent. As such Exh.D.1 was not an estimate of costs but was the final bill of costs and claims for the work done by the appellant. Each entry therein speaks of its finality. Exh.D.1 records the following end total of appellant's final claims:-- Total amount Rs,768,710 Advance Rs,5,60,000 Balance Rs,2,08,710 ' By deducting advance amount of Rs,5,60,000 from the total cost of Rs,7,68,710 appellant obviously admitted to have received the said amount and thereby gave a final bill of Rs,2,08,710 to the respondent for payment.
13. Furthermore, as per statement of appellant as P.W.1, he completed the work in September, 1992.
Respondent as D.W.1 deposed that it was in August/September, 1992 that Exh.D.1 was given by the appellant to respondent as final bill. This evidence on record clearly proves that this bill was given by the appellant to the respondent in September, 1992 upon completion of the shop with abovesaid outstanding amount of Rs,2,08,710 only. In para.4 of the plaint and in his cross- examination as P.W.1, appellant as plaintiff admits to have received through cheques a total sum of Rs,2,68,000 from the respondent on the following dates which is the case of the respondent as well:--
(i) Cheque No,92248797 dated 15-10-1992 for Rs,1,00,000
(ii) Cheque No,34900101 dated 20-10-1992 for Rs,1,00,000
(iii) Cheque No,34900105 dated 21-11-1992 for Rs,68,000 ' The appellant-plaintiff thus received between 15-10-1992 and 21-11-1992, a total sum of Rs,2,68,000 from the respondent through above-stated three cheques. This receipt was after the date of the completion of shop in September, 1992 and after the submission of the final bill i,e,, Exh.D.1 in August/September, 1992 by the appellant who thus, received a total sum of Rs,8,28,000 from the respondent in full and final settlement of his claim for construction of the suit shop.
14. As to the claim of Rs,60,000 raised by the respondent against the appellant, we believe that this claim was an afterthought and was pleaded as a counterblast in the written statement. The learned counsel for the respondent tried to support this claim on the basis of two entries made in blank ink in Exh.D.1 while the entire bill had been written in blue ink with one flow and by one hand.
The entries in black ink are evidently different and appear to have been incorporated in Exh.D.1 subsequent to the submissions of bill or may be the suit. Furthermore, respondent at no stage prior to the date of the written statement raised the claim of Rs,60,000 against the appellant-plaintiff. In our opinion the abovesaid amount of Rs,8,28,000 was an amount paid to the appellant by the respondent as full and final settlement of the outstandings and respondent has not been able to support his claim of Rs,60,000 through any cogent evidence.
15. In view of the above we do not find, any legal or factual infirmity in the impugned judgment and decree dated 29-11-1994 passed by the learned Civil Judge, Lahore dismissing appellants' suit as well as respondent's counterclaim.
16. These appeals are thus dismissed with no orders as to costs.