HAJI MUHAMMAD KHAN and 2 others/ vs ISLAMIC REPUBLIC OF PAKISTAN and

1. ' WALI MUHAMMAD KHAN, J.---Haj Muhammad Khan and others, heirs of Abad Khan 'A' Class Contractor, through the instant direct appeal, call in question the judgment of the Lahore High Court dated 22-12-1990 in R.FA. No,160/89, whereby the appeal filed by the respondents was partially accepted, the judgment and decree of the trial Court decreeing their suit for a sum of Rs,5,99,901 was modified and instead a decree for Rs,37,883 only was passed in their favour with interest at the rate of 10% per annum from 6-11-1974 till the date of the suit viz., 20-6-1977 and on the so calculated sum, further interest at the rate of 14% from the date of the suit till the date of payment of the decretal amount.

2. ' The appellants also filed Civil Petition for Leave to Appeal No,172-L/91 against the same judgment of the Lahore High Court. The Government respondent No,1 also filed Civil Petition for Leave to Appeal No,31/92 challenging the same judgment only to the extent of award of interest on the modified decree of Rs,37,883. This judgment will dispose of all of them as they arise out of the same judgment of the High Court and common questions of law and facts are involved.

3. ' The facts of the case, briefly stated, are that Abad Khan, predecessor in-interest of the appellants, offered tender for work advertised by the Government/respondent No,1 and his offer being the lowest was accepted and an agreement duly executed on 12-3-1974. The original estimate of the work was admittedly increased to Rs,9,11,000 which fact found mention in the contract deed signed between the parties on 24-5-1974 (Exh.D.4). The Contractor started executing the work and submitted his first running bill amounting to Rs,3,12,840 in which an amount of Rs,1,11,114 was paid to him on 21-5-1974. In the meantime, some dispute arose between the parties which is not in dispute now. The contractor submitted the second running bill for a sum of Rs,8,29,731 on 8-7-1974 out of which he was paid only Rs,2,29,830. He filed a suit for the recovery of Rs,5,99,901 on account of the work actually executed by him and Rs,55,000 on account of loss suffered by him when he was directed to stop the stone pitching work and also Rs,1,63,000 on account of interest at the rate of 10% per annum from 6-11-1974 to 6-4-1977. The same was contested and the allegations contained in the plaint were denied. The defendants/respondents alleged that the contractor was entitled to the payment for the work actually executed at the site. Necessary issues in the case were framed, evidence produced by the parties pro and contra thereon recorded and the learned trial Judge decreed the claim of the plaintiffs to the extent of Rs,5,99,901 and dismissed their suit regarding other claims. The appeal filed by the respondents was partially accepted through the impugned order.

4. ' We have heard Mr. Fazal-i-Ghani, Advocate for the appellants, Ch. Fazal-i-Hussain, Advocate for the respondents and have perused the record of the case.

5. ' The controversy between the parties, requiring adjudication in the instant appeal, is whether the appellants had completed the work according to the agreement executed between the parties and the final bill submitted by them represents the true state of affairs or, as alleged by the respondents, they are not entitled to the aforesaid amount and their claim as per the actual work done has already been satisfied by the department concerned with a balance of Rs,37,883 as decreed by the High Court. The respondents base their objection on the entries of the measurement book wherein the work for which the amount of Rs,5,99,901 is claimed is not entered, whereas the plaintiffs/appellants rely on the measurement contained in Exh.D.4 (pages 54 to 57 of the paper book) duly signed by Inspector of Work Spl. Main Line Branch, Pakistan Railway, Wazirabad and Assisstant Engineer, Spl., Pakistan Railway, Wazirabad on 26-7-1974 which was forwarded to the Divisional Superintendent Railway by the contractor vide his letter dated 6-11-1974 (page 58 of the paper book) and the amount claimed vide Exh.P.5/1 (page 59 of the paper book).

6. The learned trial Court did not doubt the authenticity of these documents and placing reliance thereon passed a decree for this amount in favour of the plaintiffs/petitioners/appellants. However, the learned High Court did not concur with it in this respect and ignored these documents from consideration for the simple reason that the exectuion thereof had not been proved according to law and that Muhammad Nasim, Executive Engineer Railways when confronted with the said documents under cross-examination as D.W.1, refused his signatures on Exh.P.4 and dubbed them as forged. Therefore, the question which cropped up for consideration before the High Court was as to who was, under the law of evidence, obliged to prove the execution of the documents. No doubt, the plaintiffs/appellants relied upon them in support of their claim and under the maxim of Secundum allegata et probata (he who alleges a fact must prove it), the plaintiffs were required to satisfy the Court about the correctness and genuineness of documents relied upon by them.

7. However, the instant case stands on a different footing.

8. ' Document Exh.P.4 not only bears alleged signatures of responsible officers of the respondents but their immediate officer viz., the Divisional Superintendent Pakistan Railways was duly informed of the same in time on 6-11-1974 much earlier to the institution of the suit of 21-6-1977 and he was duty-bound to inquire from his subordinates about the correctness of the document and if they had denied their signatures on them and alleged forgery, he could proceed against the contractor in this respect. The silence of the department over this important controversy can lead to the only presumption that the measurement was made by the officials concerned who signed the document Exh.P.4 but for reasons best known to them denied their existence. The learned Judges of the High Court could themselves make a comparison of the disputed signatures of the officials of the department with their admitted signatures available in the other record of the department. We ourselves made this exercise and on our direction the measurement books of the disputed work containing the signatures of Assistant Engineer who was in charge of the work were produced and on comparison of the signature of the Assistant Engineer on them with the one on Exh. P.4, we are of the opinion that they fully resemble each other. In the peculiar circumstances of the case, since the documents were in possession of the department, the burden of proof had shifted to them to disprove the genuineness of the document in question and the signature of their employees there on.

9. ' As regards the omission of the measurements recorded in Exh.P.4 from the properly maintained measurement book suffice it to say, that the mean urement book remained in the exclusive custody of the engineer in charge of the work and he had to make entries therein, of course, according to the measurements made on the spot in the presence of the contractor concerned.

10. The engineer in charge was expected to incorporate the entries of Exh.P.4 in the measurement book and if he derelicted in the performance of his duty, the contractor could not be made to suffer for it particularly when he was handed over copy of details of the measurements duly signed by the engineer (Exh.P.4).

11. In view of the foregoing discussion, we accept the instant appeal, set aside the judgment of the High Court and restore that of the trial Judge with the result that the suit of the plaintiffs/appellants stands decreed for a sum of Rs,5 99,901.

12. ' Civil Petition for Leave to Appeal No, 172-L/91, in view of the acceptance of Appeal No, 164/91, has become infructuous and is dismissed.

13. ' Civil Petition for Leave to Appeal No,31/92 filed by the Government is converted into Appeal. Fazal- i-Ghani, counsel for Haj Muhammad Khan and others, has abandoned their claim to the interest, therefore, while accepting Appeal No,164/91 the interest claimed has not been awarded to Haj Muhammad Khan and others plaintiffs/appellants. Since the judgment of the High Court has been set aside, this appeal too, has become infructuous and is disposed of accordingly.