P L D 2017 Balochistan 105
Before Muhammad Ejaz Swati and Nazeer Ahmed Langove, JJ ABDUL RAHIM and another ---Appellants
Versus
CHIEF SECRETARY BALOCHISTAN, GOVERNMENT OF BALOCHISTAN and 2
others ---Respondents
Regular First Appeal No.40 of 2012, decided on 29th April, 2017.
Civil Procedure Code (V of 1908) ---
----O. VII, R.2 ---Money suit ---Contract for construction of road---Damages, recovery of ---
Scope ---Plaintiffs were awarded contract for construction of road---Contention of plaintiffs was
that due to law and order situation in the area, insurgents fired rockets and missiles on the labour
and machinery which resulted in stoppage of work and government, in circumstances, was
responsible to pay damages ---Suit was dismissed by the Trial Court---Val idity---Plaintiffs could
not deviate from the terms and conditions of contract agreed upon between the parties ---Law and
order situation, if any, could have been handled with the help of local administration---Plaintiffs instead of resorting to legal cours e, opted an easy and shortcut way to sue the government with
another unjustified demand that they be accommodated by awarding another contract ---Such
demand was not only beyond the scope of contract awarded to the plaintiffs but beyond the
premises of law ---Plaintiffs had failed to establish their claim through reliable and confidence
inspiring evidence and did not approach the Court with clean hands by suppressing material facts with regard to award of actual contract ---Plaintiffs were not entitled for the relief claimed for ---
Impugned judgment passed by the Trial Court was based on proper appreciation of evidence ---
Appeal was dismissed in circumstances.
Nemo for Appellants.
Muhammad Saleem Balochi, A.A.G. for Respondents.
Date of hearing: 22nd March, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J ---Instant appeal is directed against the
judgment/decree dated 19th March, 2012 passed by learned Civil Judge -II, Quetta whereby the
suit filed by the appellants was dismissed.
2. Brief facts of the case are that the Government of Balochistan advertised the tender in
daily newspapers in respect of construction of 10 km road from Sharug to Murdar via Gumbati.
The plaintiff/appellant No.1 also participated in the process and succeeded to obtain the contract.
After observ ing Codal formalities he along with the plaintiff No.2 started construction of road
with mutual consent as co- sharers. It was further stated that due to worst law and order situation
in the area, insurgents fired rockets and missiles on the labours and mac hinery of the
plaintiffs/appellants and caused them heavy loss besides kidnapping workers which finally
resulted in stoppage of the work. It was further stated that the Government of Balochistan had
assured the plaintiff/appellant No.1 that in case of any loss former will be responsible to pay the
damages, as such the plaintiffs/appellants approached the defendant/respondent No. 3 for
redressel of their grievances by submitting various applications but in vain, hence the instant suit with the prayer as unde r:-
i. A decree may kindly be passed in favour of plaintiffs for Rs.9500000/ - (9.5
Million Rupees) for machinery which was crashed by the militants by firing rockets.
ii. A decree may kindly be passed in favour of plaintiffs for Rs.3000000/ - (3 Million
Rupees) which was paid by plaintiffs to the abductors who had abducted/kidnapped the workers of plaintiffs and plaintiffs had paid above ransom for the release of above workers to the insurgents.
iii. A decree may kindly be passed in favour of plaintiffs for Rs.1600000/ - (1.6
Million Rupees) whereas three tractors of plaintiffs had been demolished in the attack of
delinquents.
iv. That the interest @ 30% mark up on original amount of 14.1 Million may also be
passed in favour of plaintiffs and against the defen dants.
v. Any other relief which this Hon'ble Court may deem fit and proper in the
circumstances of the case may also be awarded in favour of plaintiffs and against the
defendants.
3. After service of notices, the defendants/respondents filed their written statements wherein
they raised certain legal objections in respect of maintainability of the suit and contested the same on merits as well.
4. After framing issues and exhausting their respective sides by the parties, the learned trial
court after hearing them through counsel and evaluating evidence did not agree with the claim of
the plaintiffs/appellants, as such dismissed the suit filed by the plaintiffs, hence instant appeal.
5. The appellants submitted that the judgment/decree impugned passed by the l earned trial
court is contrary to the law, facts and principles of natural justice because the appellants have established their claim at the strength of oral and documentary evidence but the trial court without application of judicial mind dismissed the s uit. They added that in their written
statements despite admission of appellants' claim by the defendants the trial Court dismissed the suit in clear violation of Order XII, Rule 6, C.P.C. The learned trial Court erred in law by holding that the plaintiffs /appellants were unable to prove their case against the
defendants/respondents. They maintained that the judgment/decree impugned is the result of misreading and non- reading of evidence, particularly when the evidence furnished by the
defendants/respondent s was in conflict with their written statement but this important aspect of
the case was also not attended to by the learned trial Court. They criticized the judgment by
submitting that while discussing issues the learned trial Court traveled beyond the pr oceedings
which definitely was unwarranted under the law on the basis whereof the judgment/decree impugned are liable to be set aside and suit filed by the plaintiffs/appellants deserves to be decreed as prayed for.
6. It may not be irrelevant to mention h ere that the instant appeal is pending before this
court for the last more than five years but without any progress mainly on the part of the appellants who apparently are adopting delaying tactics to further linger on the matter on one pretext or the othe r. Above all neither the appellants themselves nor their counsel is appearing
before the court for last one year without any justifiable excuse/reason, therefore, in such circumstances we have left with no other option except to decide the matter on merits after
hearing the learned Additional AG present in the court.
The learned Additional AG strenuously opposed the appeal by submitting that the
judgment/decree impugned passed by the learned trial court is based on correct appreciation of
evidence. No ille gality, irregularity, misreading, non- reading of evidence, omission or inherent
defect could be pointed out in the judgment impugned warranting interference by this Court. He opposed the contention raised by the appellants by submitting that very suit file d by the
plaintiff/s/appellants and the claim contained therein was not maintainable, because the same is based on clear violation of terms and conditions agreed upon between the parties (duly accepted by the appellants/plaintiffs) prior to awarding contra ct. He added that suit filed by the plaintiffs
being frivolous and scandalous in nature should have been dismissed with heavy costs. He requested for dismissal of suit.
7. We have carefully perused memo of appeal as well as the record and considered the
arguments advanced by the learned AAG. The record indicates that the plaintiffs/appellants after observing procedural formalities succeeded to get the contract in respect of construction of Road from 'Sharug' to 'Gambati section' measuring t otal 10 km, however, the task could not be
accomplished, as per contention of the plaintiffs/appellants due to worst law and order situation in the area owing to which even they suffered a lot in terms of money, mental torture and physical violence at the hands of militants. Be that as it may, in our considered view it doesn't mean to depart from the terms and conditions of the contract agreed upon between the parties. Law and order situation, if any, could have been handled with the help of local Administr ation
but the appellants at their own instead of resorting to legal course chose an easy and shortcut way to sue the respondents with another unjustified demand that in lieu thereof they may be accommodated by awarding another contract in the adjacent peaceful area. Such a demand itself was not only beyond the scope of contract awarded to the appellants but outside of the premises of law.
8. Adverting to the merits of the case it is manifest from the record that the
plaintiffs/appellants failed to establish their claim through reliable and confidence inspiring
evidence either oral or documentary. PW.1 and PW.2 who alleged that the appellants were assured that they and their labor will be provided support but both the witnesses failed to specify the names of those officers who had given assurance and that the giver of assurance had what authority and that whether the appellants were assured that the support will be in the shape of
money, which too in millions. Had there any such assurance why the same was not incorporated
(in writing) in black and white. Similarly in their testimony the witnesses produced by the plaintiffs failed to name the persons who allegedly were abducted by the culprits with demand of ransom amount or that regarding the abduction whether the appellants lodged any FIR or otherwise. So much so the appellants failed to produce the persons who were allegedly abducted,
before the court for recording their statements confirming that they were abducted and eventually
released after payment of ran som. All the above lacunas lead us to irresistible and definite
conclusion that the plaintiffs/appellants did not approach the court with clean hands and have
suppressed material facts in respect of award of actual contract to the appellant/plaintiff No. 1 ,
what happened when the defendant/respondents No. 2 appeared before the court and submitted his written statement he raised objection that the very suit filed by the plaintiff is not maintainable because he is not the actual person entrusted the task/cont ract, on which he filed
amended suit by impleading Abdul Rahim/appellant No. 1 as real contractor or meaning thereby that neither the plaintiffs approached the court with clean hands nor brought any document/agreement for shifting the contract or part ther eof to the appellant No. 1 and most
importantly under what authority?.
10. Admittedly the plaintiffs/appellants were legally bound to prove their claim through
reliable, unimpeachable and tangible oral and documentary evidence but they miserably failed to
do so as such are not entitled for the relief claimed for. Perusal of the record shows, quite clearly and unmistakably that the judgment/decree impugned passed by the learned trial court is based on proper appreciation of evidence. Even on reappraisal of e vidence we could not form a
contrary view to that of the trial court, hence is not open to any exception.
In view aforementioned facts and circumstances of the case appeal filed by the appellants
is hereby dismissed with no order as to costs. Decree sheet be drawn.
ZC/118/Bal. Appeal dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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