MUNICIPAL COMMITTEE OF SHAHDADPUR Versus JUMO KHAN AND ANOTHER

M. HAYAT JUNEJO, J. ‑This is a defendant's First appeal against the judgment and decree of Mr. Hamza Khan M. Qureshi, Additional District Judge, Tharparkar at Sanghar, whereby the learned Judge decreed the suit of the plaintiff (respondent No. 1) for Rs. 30,810‑6‑0 with proportionate costs to be paid to the respondent No. 1 within one month from the date of the decree. The interest claimed by the respondent No. 1 was, however, disallowed.

2. The plaintiff (respondent No. 1) alleged that he entered into an agreement with the defendant No. 1 (appellant in this appeal) on 8th February 1955, under which the respondent No. 1 had undertaken to conduct repairs of road leading from the Railway Station Shahdadpur up to the point of Octroi Post on Hala Road. Under the contract the respondent No. 1 was required to carry out the work of repairs on the road which was only 12 feet wide, but in fact he was actually male to carry out the repairs of the road which was at certain places 24 feet wide and at other points its width varied from 14 feet to 22 feet. The respondent No. 1 completed the work under the said contract and his liability extinguished with the completion of the work. The defendant/appellant, however, refused to make payment according to the work actually rendered on the spot and relying on certain entries made in the measurement books which were not genuine, refused to pay proper dues to the respondent No. 1 who was really entitled to Rs. 86,550‑6‑0 but was paid only Rs. 52,740.00; and the net balance of Rs. 33,810‑6‑0 was outstanding against the appellant. The respondent No. 1, therefore, made representations and finally served a notice on the appellant. Failing to get any relief the respondent No. 1 filed a suit in the Court of the learned First Class Sub‑Judge, Sanghar on 17‑1‑1962. According to the plaint the cause of action arose on 20‑1‑1959 when the last payment of Rs. 10,000.00 was made by the appellant. It was inter alia prayed that the plaintiff (respondent No. 1) be given Rs. 33,810‑6‑0 with commercial interest at the rate of six per cent. from the date of the institution of the suit till actual payment was made; together with the costs of the suit.

3. In his written statement respondent No. 2 (defendant No. 2 in the suit), namely. Zamir Hyder stated that he had been wrongly shown as a defendant as he was not a party to the suit. Zamir Hyder further stated that he had always taken contracts from the Municipality independently and the payment received by him was not in connection with the contract which was the subject‑matter of this suit.

4. The appellant in his written statement stated that there was no understanding with the respondent No. 1 to do any work over and above that mentioned in the agreement itself. It was also denied that the respondent No. 1 was directed verbally by any officer of the appellant to carry out the work in excess of that which was shown. In the estimate and which was agreed upon in writing. The appellant alleged that the respondent No. 1 failed to carry out the work according to the estimate and in terms of the contract and he also failed to complete the work in time, in fact he never completed it despite repeated notices. On account of this, the appellant was constrained to cancel the contract given to the respondent No. 1 and the remaining work was entrusted to Zamir Hyder, respondent No. 2 who was paid Rs. 26,000.00 for this purpose. It was further alleged In the written statement that according to the measurements of the work recorded by the officers of the appellant, the respondent No. 1 was entitled to the amount of Rs. 22,895‑9‑0 only out of which an amount of Rs. 21,000.00 had been already paid to him as a running bill during the course of the work and only the balance of Rs. 1,895‑9‑0 remained to be paid to the respondent No. 1, who was liable for the deduction of Rs. 1,810.00 on account o fine for not completing the work and the amount of Rs. 3,000.00 on account of over‑payment as per audit report for the year 1954‑55. On this account, it was contended that the respondent No. 1 was actually paid in excess of what he was entitled to. The appellant's case also was that the respondent No. 1 had drawn Rs. 34,740‑6‑0 on the basis of a forged order of the Deputy Commissioner by deceitful means. It was denied that the respondent No. 1 was entitled to Rs. 86,550‑6‑0.

5. On the pleadings of the parties, the following issues were framed :‑

(l) Whether the plaintiff committed breach of contract by his failure to complete the work and by his having deserted the same?

(2) Whether the defendant was not justified in alleged can cellation of the contract and getting the remaining work done by defendant No. 2 according to the terms of agreement, on plaintiff's failure to complete the work and on his com muting breach of the contract, and if so what will be its effect?

(3) Whether the plaintiff is entitled to the amount claimed by him?

(4) What should the decree be?

It may be mentioned that no other issues were framed nor was any other amendment sought for by the appellant at any stage of the suit.

6. The learned Additional District Judge held that the respondent No. 1 had not committed any breach of contract by his failure to complete the work. Although under the heading of "findings" it has been inadvertently mentioned that the finding on issue No. 1 was "in the affirmative", it appears that this was merely a clerical error as the reasons given by the learned Judge would clearly show. In view of this finding on issue No. 1 the learned Judge held that issue No. 2 did not arise. Similarly on issue No. 3 the learned trial Judge's findings were in favour of respondent No. 1.

7. Before considering the merits of this appeal we would like to dispose of two preliminary objections raised by Mr. Nomani. The learned counsel for the appellants contended before us that the suit of the first respondent was time‑barred as the last instalment of payment was made to him on 1‑1‑1959, but the suit was filed by him only on 17‑1‑1962, i. e. after more than three years, which was the period of limitation prescribed under Article 56 read with section 20 of the Limita tion Act.

8. In this connection the first respondent's case as men tioned in para. 17 of his plaint was that the cause of action arose on 20‑1‑1959 which was the date on which last payment was made by the appellant. This position was not controverced in the written statement filed by the appellants nor was the plea of limitation taken therein. Moreover, no issue on this question was framed, nor was the plea of limitation raised at any stage in the suit.

The rules of pleadings as provided in the Civil Procedure Code are very clear. The material provisions with regard to the denial in the written statement are contained in Order VIII, rules 2, 3, 4 and 5. Under rule 2, it is incumbent on the defen dant to raise in his pleadings all matters which show the suit not to be maintainable. In this connection issue of limitation is specifically mentioned as an illustration. Rules 3 and 4 require that the defendant must deny each allegation of fact of which he does not admit the truth (except damages) and further that such denial should not be evasive. Rule 5 provides that‑

"Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted 1n the pleading of the defendant, shall be taken to be admitted except as against a person under disability."

In Mudanna Virayya v. Mudanna Adenna and others (AIR1930PC18), their Lordships of the Privy Council held that although a plea of limitation may have been mentioned in the written statement a well as in the grounds of appeal, if no issue was directed to be upon the question before the trial Judge and the point had not been taken at the Bar during the trial it could not be allowed to be urged in appeal. In the present case, the question of limitation raised is not purely a question of law but a mixed question of law and fact. The date on which the last payment was made to the respondent No. 1, according to his plaint is now disputed by the appellant. This was however, not done at any earlier stage. In these circumstances, we are not inclined to allow this objection to be raised for the first time during the course of the hearing of this appeal; as that would necessitate an enquiry into facts.

9. The learned counsel for the appellant next contended that inasmuch as the amount offered under Exh.49, namely, Rs. 34,740‑6‑0 was received by the respondent No. 1, this acceptance on his part operated as a discharge under section 63 of the Contract Act, which reads as follows:‑

"Every promisee may disperse with or remit, wholly or in part, the performance of the promise made to him, or may extend the time for such performance, or may accept instead of it any satisfaction which he thinks fit."

Tire learned counsel in particular relied on illustration (c) to this section which is in the following terms:‑

"A owes B 5,000 rupees. C pays to B 1,000 rupees, and B accepts them, in satisfaction of his claim on A. This payment is a discharge of the whole claim."

This contention also was not raised at any stage in the trial Court nor has it been taken even in the memorandum of appeal.

The learned counsel for the appellant, however, contended that this was a point of law and could, therefore, be urged by him even at this stage. While there can be no quarrel with the general proposition canvassed by the learned counsel, we are not inclined to agree with him that the contention raised by him is a pure question of law. As observed by their Lordships of the Supreme Court in Abdullah Khan and others v. Nisar Mohammad Khan and others (P L D 1965 S C 690):‑

"A pure question of law means a question which not only does not require any investigation into facts, but which could not have been met by a plea of fact if raised at the proper stage and ordinarily it will be a good argument as against a plea being a plea of law that It could have been met by an: allegation of fact."

In the present case if this plea had been taken by the appellant in his written statement or even at a later stage in the trial Court, the respondent No. I could have repudiated the same by leading evidence to show that the payment of Rs. 34,740‑6‑0 was received by him as a part payment and not in satisfaction of his entire claim. On the document itself, namely, Exh. 49, there is no acknowledgment or even an endorsement by the respondent No.1 to show that he had accepted payment of this amount in satisfaction of his entire claim against the appellant. Indeed, there is no evidence at all on record to substantiate this contention of the learned counsel for the appellant. Besides, mere acceptance of this amount did not necessarily mean that the respondent No. I was aware of the contents of Exh. 49, as there is no evidence on record to this effect. In fact the case of the appellant was that payment of Rs. 34,740‑6‑0 was not even sanctioned but the same was obtained by respondent No. 1 on the basis of a forged document namely, Exh. 66, The appellant could not possibly take this stand as advanced by the learned counsel before us, in its written statement, as in that case the defences taken by him would have been self contradictory.

In any view of the matter, as observed by their Lordship, of the Supreme Court in Abdullah Khan and others v. Nisar Mohammad Khan and others cited above, points involving enquiry into facts or to which answer could be on facts if raised in trial Court, cannot, in absence of strong reasons be allowed to be raised for first time in appeal. We have, accordingly, no hesitation in overruling this contention of the learned counsel as well.

10. We shall now consider the evidence on issue No. 1 which is the most important point for determination in this appeal. The entire case of the appellant on this question rests on the oral evidence of Faiyaz Hussain, D. W. 3, who was an Overseer employed by the appellant. Municipality from 1954‑56. He admitted in cross‑examination that before he recorded measurements of the work done by the respondent No. 1, the latter had made an application against him and some others to the Deputy Commissioner, Sanghar regarding demands of illegal gratification. The learned trial Judge was, there fore, justified in not placing implicit reliance on his oral testimony.

11. It has not been disputed by the appellant at any stage that the entire work on the road from Shahdadpur Railway Station up to Hala Octroi Post had been completed and that an amount of Rs. 86,550‑6‑0 was due thereon. This can be seen from Exhs. 47 and 48, namely, the report of Assistant Engineer, Gambat Sub‑Division and the report submitted by the Executive Engineer, Nawabshah Roads Division to the Deputy Commis sioner, Sanghar. In his report to the Deputy Commissioner, Sanghar (Exh. 48) Mr. S. M. Askari Taqvi, Administrator of the appellant‑Municipality has also stated that the total amount as per the calculations of the office for the entire work came to Rs 86,550‑6‑0. This was based on the report submitted by the Chief Engineer of the Municipality (Exh. 67).

The case of the appellant, however, all along was that a part of this work was done by Zamir Hyder, respondent No. 2 and as the latter was paid Rs. 26,000 for this work this amount had to be deducted from the total amount claimed by the respondent No. 1. The appellant did not examine Zamir Hyder. In the written statement filed by the latter, (Exh. 20) Zamir Hyder stated that he had always taken contracts from the Municipality independently and he had received payments for those contracts. In other words, he denied that any payment was made to him by the appellant‑Municipality for this particular contract. This admission of respondent No. 2 no doubt could not be admissible against the appellant. The fact however, remains, that if the appellant had entered into any such contract with Zamir Hyder and had in fact paid him a huge amount of Rs. 26,000.00 for that purpose he could have very easily produced a copy of the agreement itself in addition to the receipt for payment and other correspondence etc. relating to this work. All these documents would have normally remained in the custody of the appellant and respondent No. 1 could not be expected to be in a position to say anything regarding them. The burden of proof in such a case would lie on the appellant and he could have easily discharged that onus by leading documentary evidence relating to the contract alleged to have been entrusted to Zamir Hyder. Instead, the appellant‑Municipality contended themselves by relying on the oral word of D. W. Faiyaz Hussain, who had a grievance against respondent No. 1 as the latter had made allegations regarding demands of illegal gratification against this witness.

12. It is a settled principle that the best evidence of which the case in its very nature is susceptible should always be presented. Sections 91 and 92 of the Evidence Act are common illustrations of what in English Law is known as "the best evidence rule". As observed by Taylor in his Treaties on the Law of Evidence "when better evidence than that which is offered is withheld, it is only fair to presume that the party has some sinister motive for not producing it, which would be frustrated if it were offered."

Similarly in Dinomoyi Debi v. Roy Luchmiput Singh (7 I A 8) their Lordships of the Privy Council observed as follows:‑‑

"It is a cardinal rule of evidence not one of technicality but of substance, which it is dangerous to depart from, that where written documents exist they shall be produced as being the best evidence of their own contents."

The evidence of respondent No. 1 Jumo Khan and his Road Mistri Kadir Baig, P. W. 2 showed that the entire work originally entrusted to the respondent No. 1, was carried out by him during the period of extension granted to him by the Munici pality. The letter: of respondent No. 1 (Exh. 80) addressed to the General Board of the Municipality on which reliance is placed by the learned counsel for the appellant, is not really inconsistent with their evidence that on the request of respondent No. 1, extension of time was granted to him to complete this job. These two witnesses are also supported by Exh. 47, namely the report of Assistant Engineer, Gambat Sub‑Division, as well as by the report of the Executive Engineer, Nawabshah Roads Division, namely, Exh.

48. The case of respondent No. 1 received support from certain admissions in Exh. 49, which is the report of Mr. S. M. Askari Taqvi, Administrator of the appellant Municipality. In addition, Exh. 52, the report dated 14‑I1‑1958 of Mr. Ghulam Nabi Memon, successor of Mr. Taqvi also supports the case of respondent No. 1.

For the reasons given above we agree with the learned trial Judge that the appellant had not discharged the onus of proving that Zamir Hyder had completed the road repair work initially entrusted by the appellant to the respondent No. 1, or that the appellant had paid a sum of Rs. 26,000.00 to Zamir Hyder, respondent No. 2 on this account. It accordingly, follows that the respondent No. 1 had neither committed any breach of contract nor had he failed to complete the work as alleged by the appellant. We feel that the learned trial Judge was correct in coming to the conclusion that the respondent No. 1 could not be penalized to the extent of Rs. 1,810.00 as suggested in Exh. 49; and that this respondent was entitled to receive a total amount of Rs. 86,550‑6‑0 which was the amount due to him on account of the work done by him.

13. The respondent No. 1 had admitted having received a sum of Rs. 34,740.00 from the appellant in three instalments of Rs. 14,740.00, Rs. 10,000.00 and Rs. 10,000.00 paid to him on 1‑10‑1958, 1‑12‑1958 and 20‑1‑1959 respectively. He claimed Rs. 33,810‑6‑0 on the basis that out of a total amount of Rs. 86,550‑6‑0, Rs. 18,000.00 were paid to him as running bills and Rs. 34,740‑6‑0 were paid to him as per the orders of the Administrator in three instalments as stated above.

The case of the appellant on the other hand was that the respondent No. 1 was paid Rs. 21,000.00 as running bill. The only material on record to support this assertion of the appellant is again the oral testimony of Faiyaz Hussain, D. W.

3. This interested witness is, however, falsified by his own report, Exh. 44 (which appears on page 31 of the paper‑book), regarding the details of advances paid to the respondent No. 1. This report dated 25‑1‑1956 shows that the respondent No. 1 was paid Rs. 16,000.00 as advance till 25‑1‑1956 and subsequently, he was paid Rs. 2,000.00 only thereby making a total of Rs. 18,000.00. This document supports the evidence of respon dent No. 1 that only Rs. 18,000.00 (and not Ra. 21,000.00) were paid to him as his running bill.

14. The appellant produced entry, Exh. 74, from the Audit Report, Exh. 78, to prove that an over payment of. Rs. 3,000.00 was made to the respondent No. 1 in the year 1954‑55 and this amount was rightly deducted from the amount claimed by the respondent No. 1.

15. No other contention was raised before us by the learned counsel for the appellant. We, therefore, bold that the learned Additional District Judge, Tharparkar at Sanghar had rightly decreed the first respondent's suit for Rs. 30,810‑6‑0 (Rupees thirty thousand eight hundred ten and annas six) without allow ing any interest to him.

For the reasons given above this appeal fails and is hereby dismissed; but in the circumstances of this case, we would leave the parties to bear their own costs.

K. B. A.

Appeal dismissed.