PLJ 2025 Quetta 66 (DB)
Present: G UL HASSAN TAREEN AND ZAHEER -UD-DIN KAKAR , JJ.
M/s. NATIONAL CONSTRUCTION LIMITED through Project Manager (West) Islamabad --
Appellant
versus
PROJECT DIRECTOR, QUETTA WATER SUPPLY &ENVIRONMENT IMPROVEMENT
PROJECT WASA and another --Respondents
RFA No. 20 of 2020, decided on 30.5.2024.
Limitation Act, 1908 (IX of 1908) --
----Art. 115--Civil Procedure Code, (V of 1908), O.XXXVII --Contract for water supply and
sewerage-- MOU-- Violation of contract --Withholding of amount --Suit for recovery --Dismissed --
Limitation --Self -serving statement of attorney --Termination of contract --Challenge to --Suit
instituted by appellant was barred by limitation under Article 115, Act 1908 of which appellant
had not claimed exemption from law of limitation in his plaint in view of Order VII rule 6, Civil
Procedure Code 1908--Statement/affidavit of appellantâs attorney, being self serving statement,
alone was not sufficient for proof of claim of recovery of Rs. 782.330 million--Despite numerous
warnings, appellant had failed to resume works which demonstrates his poor interest towards
completion of assigned vital project --No relief was claimed against such termination nor any
compensation as damages was claimed on account of termination of contract nor had made any
prayer for a direction to allow completion of contract --Trial Court had rightly held that appellant
was not entitled for claimed sum --Appellant had failed to prove claim --Appeal dismissed.
[Pp. 70, 71 & 72] A, B, C & D
Mr. Abdullah Khan Kakar, Advocate for Appellant.
Mr. Azizullah Khan Khilji, Advocate for Respondent No. 1.
Date of hearing: 16.5.2024.
JUDGMENT
Gul Hassan Tareen, J.-- Aggrieved from the ex -parte judgment and decree dated 16 November
2020 passed by the learned Civil Judge -IV, Quetta, whereby Civil Suit No. 102/2019 instituted
by the appellant for recovery of Rs. 782.330 million was dismissed. 2. Brief facts of the case are that appellant and Respondent No. 1 had entered into a
Memorandum of Understanding on 19 December 2004 and a formal contract for emergency
work was executed on 12 December 2005 and contract for main work was executed on 26 June
2006 for the major water supply and sewerage works on cost plus basis. Appellant commenced
work and started submission of running bills to the Respondent No. 2 who after examining the same, recommended to the Respondent No. 1 for payment. Later, appellant and Respondent No. 1 entered into five supplementary contracts, described in para No. 2 of the plaint. During course of execution of the assigned work, a newly appointed Superintending Engineer took charge of
PMU in 2009 and started interference in the work. Differences arose and the Respondent No. 1
had withheld the payment of Rs. 412.750 million from 9th running bill which ultimately
accumulated to Rs. 782.330 million. Appellant had instituted civil suit for redressal of his grievances which was dismissed up to the stage of the Supreme Court. In prayer clause, appellant prayed for recovery of Rs. 782.330 million and costs of proceedings.
3. Despite service of summons, none entered appearance on behalf of respondents; as such,
they were proceeded ex-parte . The learned Trial Judge framed following issues: -
â1. Whether suit of plaintiff is not maintainable under the Law of Limitation?
2. Whether plaintiff is entitled for recovery of Rs. 782.330 million as outstanding amount
against Defendant No. 1?
3. Whether plaintiff is entitled for relief claimed for?
4. Relief?â
Appellant filed affidavit of its attorney, Zulqarnain Latif Rana who entered into witness box.
After hearing arguments and going through the written arguments, the Trial Court decided issue
Nos. 1 and 2 against the appellant and resultantly, dismissed the suit vide impugned ex- parte
judgment and decree dated 16 November 2020.
4. Mr. Abdullah Khan Kakar, learned counsel for the appellant contended that while
deciding the issue of limitation, the learned
trial judge has incorrectly referred to the Article 56,
Schedule -I, the Limitation Act 1908, whereas, appellantâs suit was governed by Article 149
Schedule -I, the Act 1908 which provides sixty years time limitation. Learned counsel placed
reliance on the following case laws:
Ghulam Haider v. Muhammad Hussain (2005 SCMR 975)
Government of Pakistan v. Muhammad Bashir (PLD 2005 Lah 74).
On merits, learned counsel contended that since, suit was not contested by the respondents and
appellantâs claim was un -rebutted, consequently, the Trial Court should have decreed the suit.
5. Mr. Azizullah Khilji, learned counsel for the Respondent No. 1 supported the impugned
judgment.
6. Heard. Record perused.
7. Following points for determination are framed:
a. Whether suit instituted by appellant was governed by Article 56 Schedule -I, the Act 1908
or by Article 149?
b. Whether appellant had proved his claim of recovery of Rs. 782.330 million?
Point for determination (a), decision thereon and reasons for the decision.
8. Appellant had claimed recovery of Rs. 782.330 million for the assigned work vide MoU,
contracts and five supplementary work. In the para No. 3 of plaint, appellant had pleaded that in
2009, a newly appointed Superintending Engineer took charge of MPU as such, differences arose and Respondent No. 1 had withheld appellantâs payment of Rs. 412.750 million from 9th running bill which ultimately piled up to Rs. 782.330 million. Though appellant had not pleaded any specific date of withholding 9th running bill by the Respondent No. 1, however, in 2009, the
9th running bill was withheld. Appellant instituted civil suit for recovery of Rs. 782.330 million on 17 December 2019. Indeed, appellant had instituted suit for recovery of price of work done by him. The learned trial judge has held that appellantâs suit was governed by Article 56 Schedule -I,
the Act 1908, which reads as under:
Description of suit Period of
limitation Time from which
period begins to
run.
56. For the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment. Three year When the work is done
Article 56 applies to a suit for the price of work done by the plaintiff for the defendant at his request, where no time has been fixed for payment, however, where time has been fixed for payment, Article 56 would not apply. In the instant case, clause 4, 2nd paragraph of the MoU had fixed time for payment which reads as under:
âThe 2nd party contractor will submit bills to the consultant on monthly basis, which will be verified by the consultant within 07 days from the date of receipt of bills. The 1st party
will make payment to 2nd party in accordance with the certification of consultant within
14 days from the date of receipt of bill from the consultant.â
The time of 14 days was fixed for payment of bill as such Article 56 has erroneously been applied by the Trial Court while deciding issue No. 1. Actually appellantâs suit was governed by Article 115, Schedule -I, the Limitation Act 1908, which reads as under:
Description of suit Period of
Time from which
period begins to
limitation run.
115. For compensation
for the breach of any contract, express or implied, not in writing registered and not herein specifically provided for Three year When the contract is broken, or (where there are successive breaches) when the breach in respect of which suit is instituted occurs, or (where the breach is continuing) when it ceases.
The Article 115 applies to oral contracts, and to contracts which are in writing but not registered.
The word âcompensationâ in Article 115 is not restricted to a claim of damages, but also includes
claim for a certain sum. The Trial Court ought to have applied Article 115 instead of Article 56
for, time for payment was fixed in the MoU. Under Article 115, a period of three years commences from the day when the contract is broken or where there are successive breaches when the breach in respect of which the suit is instituted occurs or where the breaches continues when it ceases.
9. As hereinabove mentioned, according to appellantâs own pleading, Respondent No. 1
withheld the payment of 9th running bill in 2009, as such, breached the afore reproduced term of the MoU. Appellant should have had to institute suit for recovery of the pleaded claim within three years when the 9th running bill was withheld by the Respondent No. 1, as such, suit instituted by the appellant on 17 December 2019 was barred by limitation under Article 115, the Act 1908 of which appellant had not claimed exemption from the law of limitation in his plaint in view of Order VII rule 6, the Civil Procedure Code 1908.
10. Appellantâs learned counsel referred to the Article 149, Schedule -I, the Act 1908. Article
149, is applicable to suits by the Central Government or any Provincial Government. Benefit of
this Article could not be claimed by a private person. Hence, reliance on this Article by the appellantâs learned counsel is misconceived.
Thus, suit was not governed by Article 56, and reference of such Article by the Trial Court was not correct interpretation of Article 56. However, appellantâs suit was governed by Article 115, the Act 1908 which provides three years limitation and appellantâs suit under Article 115, the Act 1908 was barred by limitation. Reliance is placed on the case reported as Muhammad
Jahangir v. Executive Engineer (1999 MLD 788). The relevant therein is reproduced hereunder:
âGuided by the above rule I am clear in my mind that appellant had initiated an action for recovery of balance amount as price for work done, supply of articles payment of security deposited with the employer on successful completion of the contract. The action embraced three reliefs namely the recovery of the Face of articles supplied to employer; the balance of price in lieu of work done and the payment of security lying with the employer. This suit clearly fell within ambit of Article 115 having conclude d, that Article
115 applied to the appellantâs suit. It is to be seen that this is a residuary Article which
applied to the actions arising out of contract which are not specifically provided
otherwise. It lays down a period of three years for filing a suit commencing from the day when contract is broken or where there are successive breaches, when the âresearch, in respect of which the suit is instituted, occurs or where the breach is continuing when it ceases. The expression âbreachâ is used to indicate the accrual of cause of action. This
expression is defined by Blackâs Laws Dictionary in following terms: -
âA cause of action âaccruesâ when a suit may be maintained thereon. Dillon v.
Board of pension Comârs of City of Los Angeles, 18 Cal. 2d, 427, 116 P.2d 37,39. Cause of action âaccruesâ on date that damage is sustained and not date when causes are set in motion which ultimately produce injury.â
Point for determination (b), decision thereon and reasons for the decision.
Appellant failed to lead any material evidence before the Trial Court showing that Respondent No. 1 had illegally and in violation of MoU and contracts withheld the amount of 9th running bill. Appellantâs attorney appeared before the Trial Court and merely affirmed contents of his affidavit. The attorney did not have tendered in evidence any document in proof of his pleaded claim. Statement/affidavit of appellantâs attorney, being self serving statement, alone was not sufficient for proof of claim of recovery of Rs. 782.330 million. Appellant failed to prove that he had executed the assigned work to the satisfaction of the Respondent No. 1 and the contract was illegally terminated. Letter of termination dated 29 February 2016 shows that, despite numerous warnings, appellant had failed to resume the works which demonstrates his poor interest towards completion of the assigned vital project; as such, the Federal Government had eventually excluded the project from the Federal PSDP. Appellant had not challenged the termination of contract in the suit. Though appellant had pleaded that the contract was illegally terminated, but no relief was claimed against such termination nor any compensation as damages was claimed on account of termination
of contract nor had made any prayer for a direction to allow completion of the contract. Thus, the
Trial Court had rightly held that appellant was not entitled for the claimed sum. It is, therefore, concluded that appellant had failed to prove claim of recovery of Rs. 782.330 million.
11. For the foregoing reasons, no case is made out for interference in the impugned judgment
of the Trial Court. Case laws cited by appellantâs counsel are distinguishable.
Resultantly, this appeal is dismissed. No order as to costs. (Y.A.) Appeal dismissedThis 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,
let us know.