PROVINCE OF PUNJAB through Chief Secretary and 5 others vs Malik

' RANA BHAGWAN DAS, J.---Leave to appeal is sought against the judgment of Lahore High Court, dated 17-2-1999 passed in RFA No,149 of 1994 affirming the judgment and decree passed in a suit for recovery of Rs,12,61,409.90 filed by the respondents.

2. Respondents filed a suit for recovery on the averments that in a public notice they had submitted their quotations for supply of tents etc. On the occasion of Horse and Cattle Show held in the month of March, 1986; that their quotations were accepted; that an agreement was entered into between the parties and a work order dated 11-2-1986 was issued by the petitioners to the respondents. It was asserted that the respondents supplied various items required by the petitioners and total hiring charges came to Rs,18,96,061.90 which remained due and payable by the petitioners. Later, a sum of Rs,6,34,652 was received by the respondents leaving a balance of Rs,12,61,409.90, hence the suit along with damages at the rate of 20% per annum of the amount due and payable.

3. Petitioners resisted the suit but did not dispute the agreement between the parties. Plea taken by the petitioners was that the respondents were obliged under the agreement to supply the articles after obtaining receipt fromthe authorised officer and since they failed to do so, they were not entitled to hire charges as claimed. Divergent pleadings of the parties were reflected by the trial Court in the issues as under:--

(i) Whether the plaintiffs have not come to this Court with clean hands? If so, its effect. OPD.

(ii) Whether the plaintiffs supplied the articles mentioned in the plaint? OPP.

(iii) Whether the plaintiffs were required to get the signatures of authorised Officer in token of supply of articles? OPD.

(iv) If issue No,3 is proved in affirmative, what is the effect of non-signing of receipts regarding the delivery of articles by unauthorised officer? OP Parties.

(v) Whether the plaintiffs are entitled to recover a sum of Rs,12,61,409.90 from the defendants? OPP.

(vi) Relief.

4. Both the parties adduced evidence which resulted in a decree to the tune of the amount of suit in favour of the respondents while dismissing the claim for damages. Both the parties filed separate Regular First Appeals before the High Court which failed vide judgment impugned in this petition. No petition has been filed by the respondents with regard to the refusal of their claim of damages.

5. Learned counsel appearing in support of the petition contended firstly that the respondents-firm being unregistered, suit filed by it was invalid and incompetent in view of section 69 of the Partnership Act and secondly that as a result of earlier Writ Petition No, 5002 of 1986 filed by the respondents resulting in a consent order followed by payment of Rs,6,34,652 in pursuance of the said compromise the suit filed by the respondents was hit by the principle of res judicata.

6. Conversely, Mr. Jehangir A. Jhoja, learned counsel for the caveator submitted that the petitioners did not raise both the questions of fact and law before the trial Court and are, therefore, legally estopped from raising the mixed questions of fact and law before this Court at this belated stage.

7. Perusal of the impugned judgment supports the view propounded by learned counsel for the caveator as none of the contentions raised before this Court was agitated before the trial Court as well as the learned High Court.

8. Adverting to the first contention of the learned counsel for the petitioners it may be observed that as the petitioners did not raise the issue as to lack of registration of the respondents' firm under the provisions of Partnership Act in their written statement, the respondents were not obliged to submit a certificate of registration or to make any statement on this aspect notwithstanding an averment in paragraph 2 of the earlier writ petition as pointed out by the learned counsel. Since there was no occasion to establish registration of the firm or to rebut the allegation of petitioners before the trial Court, recovery suit filed by the respondents in the name of the firm can hardly be said to be incompetent for alleged lack of registration. It is well settled that the parties are not entitled to set up a case or to lead evidence on issues which does not arise from their pleadings.

Indeed the parties are legally bound by their pleadings and their evidence must be restricted to the points in controversy in the strict sense. Reliance on the judgment of this Court reported as Iftikhar Hussain Khan of Mamdot v. Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550) and Single Bench judgment from the High Court of Sindh reported as Province of Sindh v. Royal Contractors (1996 CLC 1205) is wholly misplaced and out of context in the peculiar facts of the case in hand .

9. Reverting to the second contention raised by the learned counsel for the petitioner, it may be observed that the earlier round of litigation between the parties resulted in a consent order whereby the dispute was referred to Assistant Commissioner (General), Lahore, with the understanding that the respondents were to be provided with the details of items supplied by them and the amount due to them on that account with an observation that in case the respondents felt dissatisfied with the decision of the Assistant Commissioner it shall be open to them to approach the High Court again. Learned counsel vigorously urged that pursuant to the consent order claim of the respondents was examined by the Assistant Commissioner who found that they were not entitled to any amount higher than the amount approved by the General Arrangements Committee on the recommendations made by the Scrutiny Committee headed by the Deputy Commissioner, Lahore, Dr. Qazi, learned Advocate Supreme Court is of the view that the only course open to the respondents was to approach the Lahore High Court in terms of the consent order and it was not entitled to invoke the jurisdiction of Civil Court after having accepted a sum of Rs,6,34,652 without any demur from the petitioners which was a past and closed chapter and fresh suit barred by the principle of res judicata.

10. We regret, we cannot subscribe to this contention of the learned counsel as the controversy raised in the earlier writ petition was neither finally heard nor decided on merits nor was the matter directly and substantially in issue substantially the same as raised in the subsequent civil suit.

Furthermore, ordinarily High Court does not embark upon a detailed inquiry into questions of fact arising out of contractual obligations between the parties.

11. In order to attract the principles of res judicata following five conditions must be complied with:-

(1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit.

(2) The former suit must have been a suit between the same parties or between parties under whom they or any one of them claim.

(3) The parties as aforesaid must have litigated under the same title in the former suit.

(4) The Court which decided the former suit must have been a Court competent to try the subsequent suit in which such issue is subsequently raised.

(5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

12. A glance at the memorandum of writ petition in the earlier round of litigation tends to indicate that the respondents had essentially impugned the decisions dated 28-8-1986 and 30-8-1986 laying down different yardsticks for the payment of bills in the said petition whereas in the subsequent suit respondents claimed a definite amount on account of the services rendered and the goods supplied as per the terms and conditions of the contract complaining breach of the agreement. Admittedly, the subsequent suit filed before the Civil Court could not have been filed before the Lahore High Court as the said High Court does not try suits of civil nature on original side while disputed questions of fact could not be inquired into in the exercise of Constitutional jurisdiction. Apart from the circumstances that the matter in issue in both the proceedings was distinct and different the principle of res judicata may not be attracted in the circumstances of the case for the obvious reason that the subsequent suit could not be competently heard and decided by the Lahore High Court.

13. Indeed Civil Court is generally considered to be the appropriate forum for resolution of such disputes. It is well settled that the Civil Court is a Court of general and ultimate jurisdiction to try all suits of civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Claim of the respondents, therefore, was neither barred by law nor hit by the provisions contained in section. 11, C.P.C. As misunderstood. Reliance on Abdul Majid v. Abdul Ghafoor Khan PLD 1982 SC 146 and Asif Jah Siddiqi v. Government of Sindh (PLD 1983 SC 46) is, therefore, completely misconceived and of no assistance.

14. As to the merits of the claim of the respondents, learned High Court has elaborately discussed the same in paragraph 5 of the judgment, which reads as under:-- "The learned counsel for the appellants has reiterated before us that the amount claimed as hiring charges was not due and payable by the appellants. He is, however, unable to refute that the articles in question were received by the appellants and were duly used by them. In this behalf receipt Exh. P-1 to Exh. P-81 were produced by the respondents and were proved by P.W.2, P.W.5, P.W.6, P.W.7, P.W.8, P.W.9' and P.W.12. The bills submitted by the respondent have been produced as Exh. -83 to Exh. P-89. However, the most important evidence in this behalf is furnished by Exh. P-91 which are minutes of the meeting held under the Chairmanship of the Commissioner, Lahore Division, Lahore, who was the Convenor of the Show in which it is clearly stated that a sum of Rs,17,58,962.90 are due and payable to the respondent on account of hiring charges which could not be paid for non-allocation of sufficient funds. Same is the position with regard to Exh.P-93, in accordance with which sanction has been awarded for Rs,17,05,805.90 as hiring charges for furniture etc. This sanction has been made on the bill submitted by the respondent. In the face of these two documents it cannot be claimed by the appellants with any success that the amount claimed by the respondent was not due and payable by them."

15. Learned counsel for the petitioner is unable to rebut the above said statements of fact which clearly dispel the impression that the suit brought by the respondents was wrongly decreed. It is rather the other way round in that the petitioners, contrary to the admitted terms of the contract wrongly withheld genuine claim of a citizen without any legal or moral justification. It is expected of every citizen and more particularly the State functionaries to honour the agreements rather than to fall back on the commitments and to enter into luxuries of uncalled for litigation at public expense.

It would have been just, fair and commendable on the part of the petitioners to have frankly conceded to the reasonable and just claim of the respondents rather than to agitate the same for a period over a decade.

16. Resultantly, there is absolutely no merit in this petition which is accordingly dismissed and leave to appeal refused.