GOVERNMENT OF PAKISTAN through Secretary Defence Islamabad Versus HAMID HUSSAIN

ORDER

MUHAMMAD ALAM, J.--- Through this appeal, appellants/plaintiffs have challenged judgment/order dated 28/10/2015, passed by the Senior Civil Judge Gilgit, whereby, suit (Civil Suit No.105/2005) of appellants/plaintiffs has been dismissed.

2. In plaint of the suit, appellants/ plaintiffs averred that in the year 1998 they awarded a contract to the respondent for supply of he-goats in Domail, Buniyal, Shikma and Gulturi areas. The agreement of said supply was arrived at between parties on 09-02-1998. In the light of the same, respondent had agreed to supply the live he-goats from 1s1 July 1998 to 30-07-1999 at the rate of Rs.38.30/- per kilo. Respondent failed to act upon the agreement and appellants had to extend the time of supply for 68 days. On failure of respondent to do the supply even within the extended days, appellants were free to obtain the supply on the risk and costs of respondent. So, appellants had to award the contract to another contractor at the rate of Rs.65/- per kilo and as a result thereof, appellants had to incur additional costs of Rs.2264630/-, the suit amount. Respondent admitted correctness of the agreement but denied the averments of plaint, in reply to the contents of plaint and averred that he had fully supplied the live he-goats within the stipulated period of the agreement. Learned trial court framed the following issues:-

1. Whether suit is not maintainable in the present form? OPD

2. Whether suit is within time? OPP

3. Whether defendant failed to supply the he goats although obtained 698 days extension from the plaintiffs? OPP

4. Whether appellants/plaintiffs have competently awarded the contract of supply of he-goats to another contractor at the risk and costs of respondent?

5. Whether appellants had to incur the costs of Rs.22,64,630/- as additional expenses because of awarding the contract to another contractor at the risk and cost of respondent, in view of failure of respondent to carry out the suit contract despite obtaining a number of notices from the appellants? OPP

6. Whether the contract period was a year commencing from 01/07/1998 to 30/07/99? OPD

7. Whether defendant completed the supply in accordance with the contract, obtained completion certificate and also obtained the final bill? OPD

8. Relief.

3. Learned trial court has given his findings on the said issues as under:--

Issue No.1 Against defendant.

Issue No.2 In favour of the plaintiffs.

Issue No.3 Against plaintiffs.

Issue No.4 Struck off as redundant.

Issue No.5 Against plaintiffs.

Issue No.6 In favour of defendant.

Issue No.7 In favour of defendant.

Issue No.8 Suit dismissed.

4. We have heard learned counsel for parties and have gone through the material available on file. Our findings on issues are as under:--

Issue No.1: Respondent is defendant of the case and has not challenged findings of the trial court on issue No.1, therefore, we do not upset the said findings.

Issue No.2: Burden of proof of this issue is on appellants/plaintiffs and findings of the learned trial court on this issue are in their favour. Respondent is defendant of the case and has not challenged findings of the trial court on issue No.1, therefore, we do not upset the said findings.

Issue No.3: There is no evidence showing grant of period of 68 days for the respondent enabling him to complete the short supply of any meat etc. We, therefore, hold that the findings of the learned trial court are correct although above referred reference is wrong.

Issue No.4: We do not agree in the findings of the learned trial court and instead hold that there is no evidence in proof of this issue. So our findings on this issue are against the appellants/plaintiffs. Findings varied accordingly.

Issue No.5: Findings of the learned trial court on this issue are correct. This issue is very important issue of the case. Appellants did not produce any evidence in proof of this issue. Exh.P/1 to Exh.P/11 are the documentary evidence but are not relevant in proof of this issue. In his statement, representative for appellants/plaintiffs has clearly stated that the suit was filed because of any audit objection. Learned trial court has rightly not relied on documentary evidence Exh.P/1 to Exh.P/11 as the same documents have been prepared in the office of appellants/plaintiffs. Moreover, it is clear from the documents that all the documents have been prepared from 10/06/1999 to 29/07/99. This shows that the documents prepared by the appellants are completed within about a month or so, showing balance of 28,000 kilograms supply of meat. Appellants did not file any document showing supply of the short supply of meat by the respondent through another contractor on risk and cost of the respondent. Findings of the trial court on this issue are upheld.

Issue No.6: Parties to the case are not at issue on this issue. Findings accordingly.

Issue No.7: Findings of the learned trial court on this issue are correct except the references referred in the findings on this issue.

5. The result is that appeal dismissed holding meritless. This file be consigned to record.

ZC/45/GB Appeal dismissed.