KARACHI METROPOLITAN CORPORATION Versus Messrs AKHTAR & CO.
This suit has been filed by K.M.C. for recovery of Rs. 20,51,399.12 against the defendant, M/s. Akhtar & Co., through its proprietor Mazhar Saeed. The defendant was served through publication but did not file any appearance,. Written statement was also not filed and the case was fixed for final disposal. O 3‑4‑1988 and 5‑4‑1988, evidence of Dr. B.H. Khalid (Ex. 3), the only witness o behalf of the K.M.C., was recorded. Defendant had been called absent. I heard the argument of Mr. S.M. Muslim Naqvi, learned counsel for the plaintiff.
2. The case of the plaintiff is that they own and maintain a slaughter house at Landhi, Karachi and award contracts for collection of slaughtering fee in respect of cattle slaughtered in that slaughter house at Landhi. For the period from 1‑7‑1982 to 31‑12‑1982, a public auction was held for grant of such contract and the defendant offered the highest bid of Rs. 9,53,700 which was accepted and the contract was awarded to the defendant. Possession of the slaughter house was also given to the defendant for purposes of collecting slaughtering fee. This contract period was to expire on 31‑12‑1982 and, therefore, a public notice was issued for holding auction of the contract on 27‑11‑1982 for the period from 11‑1‑1983 to 30‑6‑1983. According to the plaintiff such auction was held and one Sadiq son of Haji Nabi Bux Gabol offered the highest bid of Rs. 12 lacs and this highest bid was approved but the contract did not materialise as the defendant filed a Civil Suit No. 5228/82 in the Court of 4th Senior Civil Judge, Karachi and obtained an ex parte status quo order and continued to collect the slaughtering fee under the cover of the status quo order beyond his contractual period. However, by order dated 21‑2‑1983, on an application filed under Order VII, Rule 11, C.P.C. by K.M.C., defendant in the suit before the Civil Courts, the plaint of the defendant was rejected. It is the case of the plaintiff that after rejection of the plaint and vacation of the status quo order, the plaintiff took over slaughter house on 21‑2‑1983 at 1.00 p.m. and issued and displayed a public notice at the slaughter house for information of the public. The defendant, however, filed two appeals in the District Court and obtained another status quo order and under cover of such status quo order, according to the plaintiff, forcibly took over possession of the contract space in the slaughter house from the staff of the plaintiff on 23‑2‑1983 and started collecting slaughtering fee again. The appeals filed by the defendant were dismissed id default on 18‑7‑1983, but one appeal was restored by the learned VIIIth Additional District Judge, Karachi on 20‑7‑1983 and the order of status quo was also restored. Finally the appeal was also dismissed for non‑prosecution on 15‑9‑1983. According to the plaintiff, the period for which the contract for collecting of slaughtering fee had been granted to the defendant expired on 31‑12‑1982, but by making misrepresentation and on the basis of wrong affidavits, the defendant was able to obtain status quo order. from the lower Courts and under cover of such status quo orders continued to collect slaughtering fee upto 15‑9‑1983. According to the plaintiff for this period of 8‑1/2 months i.e. from 1‑1‑1983 to 15‑9‑1983, the plaintiff suffered loss of Rs. 15,06,535.45 as follows:‑‑
"(a) Loss of Rs. 12 lacs for the period from 1‑1‑1983 to 30‑6‑1983. The plaintiff has calculated this amount on the basis of highest bid received in the open auction held on 27‑11‑1982.
(b) Loss of Rs. 4,31,250 for the period from 1‑7‑1983 to 14‑9‑1983. This amount has been calculated by the K.M.C. on the basis of the highest bid of Rs. 20,70,000 received at the auction held on 28‑6‑1983.
A sum of Rs. 5,44,863.67 has also been claimed as interest at 14% per annum on the aforesaid amount.
According to the plaintiff, however, the defendant has only paid a sum of Rs.1,24,714.53 out of the principal sum of Rs. 16,31,250. The plaintiff has called upon the defendant repeatedly to pay the balance amount but the defendant failed to pay the same and in the circumstances the present suit was filed.
3. As observed earlier, the defendant has not entered appearance and on behalf of the plaintiff Dr. B.H. Khalid, Chief Veterinary Officer, K.M.C. appeared and gave evidence as Ex. 3 and produced several documents. The evidence of Dr. B.H. Khalid supports the case of the plaintiff. The case of the plaintiff has gone uncontroverted as no appearance has been made by the defendant. The witness of plaintiff has produced documents to show the bids received in 2 auctions held for the contract periods from 1‑1‑1983 to 30‑6‑1983 and 1‑7‑1983 to 30‑6‑1984 as Ex. 3/5 and 3/17. The witness has also produced copies of the plaint of the suit filed by the defendant in the Civil Court at Karachi, various orders passed by the learned 1Vth Senior Judge, Memo. of Appeal No. 18/83 in the Court and the orders passed by the Appellate Court.
From the evidence given by Dr. B.H. Khalid and documents produced by him which include copies of the pleadings and orders passed by the lower Courts in the suit and appeal instituted by the defendant it follows that the defendant had no right to the extension of the contract period which expired on 31‑12‑1982 and he was able to retain possession of the slaughter house and continued to collect slaughtering fee, which he was not entitled to do for the period after 31‑12‑1980. In any case, his suit and appeals have been dismissed and, therefore, he is liable to pay damages to the plaintiff for collecting slaughtering fee unauthorised for period from 1‑1‑1983 to 15‑9‑1983. The basis on which the plaintiff has calculated their damages are the highest bids received for the two later periods of contracts and in my view the plaintiff has correctly calculated the damages for which they are entitled to a decree against the defendant. The plaintiff is also entitled to interest. After adjusting the amount of Rs. 1,24,714.55 paid by the defendant toy the plaintiff the figure of the loss is reduced to Rs. 15.06.535.45.
4. The suit of the plaintiff is accordingly decreed against the defendant in the sum of Rs. 15,06,535.45, with interest at the rate 14% per annum on this amount with effect from 1‑1‑1983 till realization. The plaintiff shall also be entitled to costs.
AA./K‑102/K
Suit decreed.