HAMAYOON KHAN Versus CHAIRMAN PAKISTAN TELECOMMUNICATION, ISLAMABAD
1. MUHAMMAD YAQOOB, J.--- This petition for leave to appeal has been preferred by the petitioner/plaintiff against the impugned judgment/order dated 19-8-2009 rendered by the Division Bench of Chief Court Gilgit-Baltistan, whereby the learned Division Bench has dismissed the Civil 1st Appeal bearing No.14 of 2006 by declaring it as meritless.
2. The brief background of the litigation as narrated by the parties are, that on 4-5-2006, the petitioner/plaintiff filed a civil suit bearing No. 163 of 1996 for recovery of Rs.10,52,445/- along with 8% inflation against the respondents/defendants with the plea, that on the verbal promise of respondents/defendants, the petitioner/plaintiff carried out the additional work on site by breaking the land to level the same and prepared it for foundation-wall. After completion of the project respondents did not pay the additional amount of Rs.10,52,445/- to the petitioner/plaintiff. In the plaint it has further been narrated that at Islamabad a meeting was held on 29-2-1996, wherein it was decided that if the petitioner/plaintiff would carry out the additional work on site, he might submit a detail report to the authorities for consideration and approval.
3. In the light of meeting held on 29-2-1996, petitioner/plaintiff submitted a detail report prepared by the "Northern Areas Associates and Consulting Engineers and Planners Gilgit" but no response has been given to the report. Ultimately petitioner left with no option but to file the instant recovery suit in the Court of Civil Judge 1st Class Gilgit. On the other side respondent/defendant has vehemently denied the claim of petitioner/plaintiff regarding the additional work done by him at "Domsat Earth Station Gilgit". They have also strongly denied the version of petitioner/plaintiff regarding oral agreement.
4. In the light of pleadings, learned trial Court, framed nine (9) issues and provided fair opportunity to both the parties for adducing evidence in pro and contra. Petitioner/plaintiff has adduced only one P.W. in support of his claim, whereas respondents/defendants have not produced any evidence and relied on the statement of their attorney and the documentary evidence.
5. This Court has granted leave to appeal after hearing the learned counsel Mr. Sharif Ahmed Advocate for the petitioner by considering his contention to the effect that both the lower Courts have acted negligently by misreading and non-reading of the evidence if so its legal effect; short order, dated 13-11-2009 is reproduced hereinbelow for legal and factual clarification:---
6. "After hearing the learned counsel and perusal of record with his assistance we find force in his contention that the concurrent finding on the question of fact was the result of gross misreading and non-reading of evidence. Notice is accordingly issued to the respondents for a date in office."
7. Arguments heard and record perused, learned counsel for petitioner argued and submits that the learned Division Bench of Chief Court had not followed the provisions of Qanun-e-Shahadat, as the claim of the petitioner has been admitted by the respondent/defendants, as such the impugned judgments/decrees of both the learned lower Courts below are not maintainable and liable to be set aside. He further strongly pressed, that the impugned judgments/decrees of both the Courts below are the result of misreading and non-reading of the statements and the documentary evidence adduced by the petitioner/ plaintiff, therefore, the judgments/decrees being un-warranted by law are liable to be set aside.
8. On the other side counsel for respondents Malik Shafqat Wali, Senior Advocate, strongly opposed the arguments advanced by the counsel for the petitioner/plaintiff with the submission, that the suit of plaintiff/petitioner is not maintainable as the same is clearly time-barred, he vehemently argued that the plaintiff/petitioner does not enjoy any cause of action against the respondents/defendants, because, parties to the suit have not entered into an agreement regarding breaking of land etc. He further pointed out that the contract awarded to the contractor was on the basis of work done which was expired on 30-6-1992. Petitioner hopelessly failed to complete the contract awarded to him with in the stipulated period despite of issuing several notices, resultantly, the respondents have been paid the entire amount of the work done at site by imposing penalty on 30-6-1992. Moreover on 26-6-1992, the petitioner/plaintiff has submitted his final bill amounting to Rs.4,36,641.94, wherein he has not mentioned any right regarding "additional work". At the end it has also been requested that this leave to appeal may be dismissed with costs.
9. We have considered the contentions raised by the counsel for parties and with their able assistance also gone minutely through the record of the case with full care and caution. Perusal of the record shows, that petitioner/plaintiff has initially filed a civil suit bearing No.123 of 1993, on 24-10-1992, for recovery of Rs.50,000 against the respondents which was rejected by the trial Court vide order, dated 18-9-1993. Thereafter the present suit has been filed on 12-11-1996, for recovery of Rs.10,52,445. Just to substantiate his claim, plaintiff/ petitioner produced only one P.W. besides the documentary evidence, while the respondents relied on the statement of their attorney and placed on record documentary evidence vide Exh. D/1 to Exh.D/18, which shows complete failure of petitioner/plaintiff to accomplish the work awarded to him within a stipulated period. Petitioner/plaintiff has adduced only one witness namely Engineer Ejaz Mahmood son of Kamal-ud-Din, but he does not support the version/claim of the petitioner, as witness P.W.1, does not know any thing about the additional work done by the petitioner/plaintiff on site. The final bill submitted by the petitioner dated 26-6-1992, vide Exh. D/4 is a sound material piece of evidence, wherein the petitioner/plaintiff only claimed Rs.4,46,643 for the work done and did not say anything regarding the additional work carried by him. Although it is admitted by both the parties, that petitioner/plaintiff has received the said amount without any protest.
10. Moreover, a specific question put by Division Bench of this Court, that any agreement regarding additional work done by plaintiff is available on file. The learned counsel for available on record. However, it was promised by respondents/defendants that additional amount would be paid to the petitioner/plaintiff after completion of the project but the petitioner/plaintiff remained failed to prove the "Specific promise" made by respondents through oral as well as documentary evidence.
11. So far as the plea of admission taken by the learned counsel for petitioner, we have found nothing in written statement as well as in the statement of attorney Raja Anis son of Muhammad Bashir Khan, in charge Earth Station Danyore. The said witness did not accept the promise, oral agreement and the additional work done by the petitioner/plaintiff.
12. From perusal of the material available on record' we are of the opinion, that the petitioner/plaintiff could neither prove any additional work had been particularly done, nor any oral agreement between the parties regarding the alleged additional work carried out by the petitioner/plaintiff. The concurrent findings of the two Courts below on the material issues are fully supported by the evidence on record, therefore, we find no force in his contention that the concurrent finding on the question of fact was the result of gross misreading and non-reading of evidence, as such both the learned lower Courts have rightly dismissed the suit and the 1st Appeal filed by the petitioner/plaintiff.
13. For what has been discussed above, we found no substance in this petition for leave to appeal, which is hereby dismissed with no order as to costs.
14. M.H./80/Glt. Petition dismissed.