2007 S C M R 969

[Supreme Court of Pakistan]

Present: Rana Bhagwandas and Hamid Ali Mirza, JJ

ENAYAT SONS (PVT.) LTD.----Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Finance and others----

Respondents

Civil Petition No.462-K of 2006, decided on 6th December, 2006.

(On appeal from the judgment, dated 3-8-2006 in Civil Revision No.56 of 2003 passed
by the High Court of Sindh, bench at Sukkur).

Per Hamid Ali Mirza, J; Rana Bhagwandas, J. agreeing.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---Contract Act (IX of 1872), Ss.15 & 16---Recovery of damages---

Principle of estoppel----Applicability---Coercion or undue influence---Proof---Factual
controversy---Suit for damages decreed by Trial Court in favour of plaintiffs, was
dismissed by Appellate Court and revision filed by plaintiffs was dismissed by High
Court---Plea raised by plaintiffs was that Certificate of No Demand issued by them was
due to coercion and undue influence exerted by authorities---Validity---Plaintiffs gave
Certificate of No Demand to the authorities in respect of final payment made to them
stating therein that they had no further claim under the contract beyond the net amount
of final bill---.Such statement of No Demand towards and no further claim by plaintiffs
operated as estoppel against them---Plaintiffs did no lead any evidence in respect of
coercion or undue influence within the meaning of Ss.15 and 16 of Contract Act, 1872,
to prove that such Certificate of No Demand was given by them under coercion and
under undue influence having been exercised by authorities---Case of plaintiffs was
based on factual controversy between the parties in respect of claim of damages on
which concurrent findings were arrived at by Appellate Court and affirmed by High
Court---When there being no misreading or non-reading of evidence was pointed out,
such concurrent findings of fact could not be interfered with in by Supreme Court---
Plaintiffs failed to point out any substantial question of law within the meaning of
Art.185(3) of the Constitution---Leave to appeal was refused.

Sualeh Sons (Pvt.) Ltd. v. Karachi Development Authority 1997 CLC 893; Muhammad
Hussain v. Sheikh Muhammad Tufail and others 1981 SCMR 877; Asmatullah Khan
and others v. Jhangi Khan and others 1995 SCMR 207; Waris Khan and 2 others v.
Mst. Zainab Nisa and others 1997 SCMR 526; Karachi Tannery (Pvt.) Ltd. v.
Muhammad Yousaf through Legal Heirs 2002 SCMR 680; Sardar Muhammad and
another v. Akram and others 2002 SCMR 807; Messrs Huffaz Seamless Pipes
Industries Ltd. v. Messrs Security Leasing Corporation Ltd. 2002 SCMR 1419 and
Yaqub Masih Jacob v. Mrs. Louisa De 'Souza 1992 SCMR 1799 rel.

Per Rana Bhagwandas, J.

(b) Contract Act (IX of 1872)---

----Ss. 15 & 16---Constitution of Pakistan (1973), Art. 185 (3)---Recovery of damages-

--Judgment at variance---Principles---Suit for damages decreed by Trial Court in
favour of plaintiffs was dismissed by Appellate Court and revision filed by plaintiff
was dismissed by High Court---Validity---In the event of conflict between judgments
of Trial Court and Lower Appellate Court, preference should be given to the views of
Lower Appellate Court, who had the opportunity of examining and analyzing the
evidence of parties---Such rule was neither absolute nor inflexible---In case the
judgment of Appellate Court was not well founded and reasons assigned for taking a
different view from that of Trial Court appeared to be not warranted by record, it could
not be preferred---Lower Appellate Court had carefully, correctly and consciously
analyzed, oral as well as documentary evidence which had been rightly affirmed and
not interfered with by High Court---Judgments of both the forums below were thus, not
open to any exception---In view of concurrent findings of fact by two Courts below,
including High Court, no ground was made out for interference by Supreme Court in
exercise of its jurisdiction---No question of law of public importance was spelt out---
Leave to appeal was refused.

Bilal A. Khawaja, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-
on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 10th October, 2006.

JUDGMENT

HAMID ALI MIRZA, J.--- This civil petition for leave to appeal is directed against
judgment dated 3-8-2006 in civil revision No.56 of 2003 passed by learned Single
Judge of the High Court, of Sindh Bench at Sukkur whereby the said revision was
dismissed maintaining the judgment and decree of the First Appellate Court.

2. Brief facts of the case are that the petitioner filed suit for recovery of damages
amounting to Rs.98,70,367 together with markup and cost before the learned Senior
Civil Judge, Sukkur which suit was decreed in the sum of Rs.67,77,317 vide judgment
and decree dated 30-8-1997. The respondent filed Appeal No.29 of 1997 (new No.52
of 2002) which appeal was allowed vide judgment and decree dated 15-9-2003 thereby
judgment and decree dated 30-8-1997 passed by Senior Civil Judge were set aside and
suit of the petitioner was dismissed. Petitioner preferred Civil Revision No.56 of 2003
before the High Court of Sindh Bench at Sukkur which was heard by learned Single
Judge of the High Court and dismissed vide impugned judgment, hence this petition
for leave to appeal.

3. We have heard learned counsel for the petitioner who submitted that the Senior Civil
Judge had correctly appreciated the evidence on record and had construed the law on
damages properly in accordance with law, which did not warrant interference by
learned Additional District Judge and by the learned Single Judge of the High Court
and that the First Appellate Court and the revisional Court have committed serious
error of law by setting aside well-reasoned judgment of the Senior Civil Judge.

4. I do not find substance and merit in the contentions of learned counsel for the
petitioner.

5. The petitioners/plaintiffs, a private limited company, were assigned the construction

work of quarters for Group-VII at Panoakil Cantt. and such contract was given to them
as per written agreement mentioning terms and conditions in respect of the period
during which the contract was to be completed and amount of contract to be paid to the
petitioners/plaintiffs. Petitioners were paid running bills from time to time in view of
the work done by the petitioners. Ultimately final bill for the work done was submitted
which was paid by the respondents to the petitioners and such "No further Demand
Certificate" was also given by the petitioners before the final payment was made by
them. However, after the receipt of final payment on their "No further Demand
Certificate" to the respondents, the petitioners/plaintiffs filed the civil suit in the Court
of law. The petitioners/company claimed following loss as per his statement mentioned
in the petition in para.8 as under:--

(a) Cost incurred in undertaking survey of the new Rupees

location of the proposed quarters which was not included 42,600
in the original scope of works
(b) Extra cost incurred on account of change of location 7,74,279
of the proposed quarters
(c) Markup of denied payments:
(i) In the various running bills 73,202
(ii) Payments denied on account of no-payment dues due 7,38,039
to delay in the approval of Deviation Orders Nos.6 to 11.
(iii) Denial of Rs.2,019,826 from running bills Nos.13 to 897,409
18
(iv) Loss incurred on account of arbitrary reduction of
rates and quantities in Deviation Orders Nos.4, 7, to11.
(a) Amount denied 7,50,533
(b) Markup on (a) 3,05,576
(v) Amounts denied to the petitioner company through
non-issuance of Deviation Orders Nos.12, 13, and 14.
(i) Amount involved 496,009
(ii)Markup on (i) be 173,445
 (vi) Amounts denied on account of untenable/arbitrary
recoveries from the final bill.
(i) Amount involved 75,000
(ii) Markup on (i) be 13,500
(vii) Loss incurred on account of idling of labour due to 11,00,000
non-payment of the running bill in January; 1983 at the
notified rate of Rs.1,00,000 per day
(viii) Loss suffered on account of extended overheads/ 4,430,775
Supervisory costs/preliminaries for the period of delay of
18 months.
Total 98,70,367

6. I have gone through the judgments of the Appellate Court and of the learned Single
Judge of the High Court minutely and carefully. I find that each item of claim of
petitioners has been considered and appreciated in view of oral and documentary
evidence on record which findings were of factual controversy between the parties.
The findings of the trial Court have been reversed by the First Appellate Court which
findings of fact have been affirmed by the learned Single Judge of the High Court in
accordance with law who found no misreading and non-reading of evidence. The
petitioners have failed to prove the claims in respect of damages as no evidence as
required by law could be brought by them on record. The learned Single Judge at page
14 of the impugned judgment has observed:--

"No suggestion was put to the respondents' witness that any of the items of
work of DOs Nos.4, 7 to 11 were reduced or the rates of any of the items of
work of these DOs were reduced. Respondents' witness has categorically stated
that the 11 DOs have been paid accordingly which means that they have been
paid according to their text and tenure coupled with the measurement obtained
from the measurement book. By this evidence, the respondents have discharged
their burden and it was upon the applicant to have confronted the respondent
witness to the item of its claim for the take of admission or produced some
independent corroborative evidence to establish its claim which is not done. I
may also note that the applicant has itself produced respondents letter dated 19-
1-1991 D-114 in which applicant's claim on these DOs is denied. There is also
no suggestion to the respondent witness that the two items of work referred to
in the respondent's letter dated 19-1-1991 D-114 were not decided. The overall
conclusion of the above discussion is that the applicant has not been able to
prove from evidence its claim on account of reduction of rates and quantities in
DOs Nos.4, 7 to 11."

At page 18 of the judgment it is observed:--

"P.W.1 in his evidence has stated that applicant has done additional work on
verbal order but has produced not a single letter of confirmation. P.W.3 in his
evidence has stated that applicant was issued 15 DOs out of which 11 were
paid. He has not produced the remaining 3 DOs which are said to have been
issued and not paid. The admitted fact is that the respondents have issued 11
 DOs which have been paid while the 3 DOs Nos.12, 13 and 14 were prepared
by the applicant itself while the contracted work was completed and final bill
paid except DO No.12 which was submitted near about the time, of payment of
final bill. In the face of condition of contract as quoted above which being not
complied, to me, there was no justification of allowing applicant's claim for
DOs Nos.12, 13 and 14. The third item of claim allowed by the trial Court is in
respect of loss incurred on account of idling of labour due to non-payment of
running bill in January, 1988... Applicant witnesses in their oral evidence have
said nothing specifically with regard to this claim. P.W.1 in his evidence has
stated that:--

"Due to delay in payment of final bill we paid the salary etc. to the staff."

.... The applicant in its evidence has not disputed the explanation of delay in
making of payment of running bills given by the respondents in their written
statement Apart from this all the 18 running bills produced in file No.B Exhibit
19 have been paid to the applicant The above chart demonstrates the time
which was taken by the respondents for making the payment of the running
bills to the applicant and in the case of running bill for February, 1988, 25 days
were taken yet no grievance is made by the applicant to the time taken in
making of this payment. The inference that can be drawn is that the time which
has been taken by the respondent in making payment of the running bills to the
applicant as noted in the above charge was a reasonable time under the General
Condition of 'the contract and there has been no amount of excessive and
unconscionable delay. Yet the grievance on account of this claim raised by the
applicant is of only eleven days and in view of the above chart, in my respectful
view, such a claim could hardly be justified."

At page 27 of the impugned judgment:--

"Be that as it may there is no material evidence on the record to show that any
delay was caused in completion of the contract which can be justifiably
attributed to the respondents or that there is any independent evidence to show
that the applicant has incurred any loss or damage on account of delay in the
completion of work. The record shows that the delay in completion of work has
mostly been for the reason as stated in the applicant's own letter for which the
respondents cannot be held responsible. Merely granting of extension and by
non-imposition of penalty will not in it self lead to an inference that delay was
on account of the respondents and that it is liable to compensate the applicant."

It may also be pointed out that the petitioners gave Certificate of No Demand to the
respondents in respect of final payment made to them stating therein that they have no
further claim under the contract beyond the net amount of the said final bill. The said
statement of No Demand towards no further claim by the petitioners will operate as
estoppel against them. Reference may be made to Sualeh Sons (Pvt.) Ltd. v. Karachi
Development Authority 1997 CLC 893, wherein learned Single Judge of Sindh High
Court as he then was (Rana Bhagwandas, J.) observed:--
 "Defendant sanctioned payment of Rs.5, lac on account of escalation in prices
in full and final satisfaction of claims made by plaintiff. Having .accepted this
payment without any protest plaintiff is legally estopped from questioning same
after a lapse of nearly three years by stating that acknowledgment was executed
by him under duress."

In the instant case the petitioners have not led any evidence in respect of coercion or
undue influence within the meaning of sections 15 and 16 of the Contract Act to prove
that the said certificate of No Demand was given by them under coercion and under
undue influence having been exercised by the respondents. It may also be observed
that no plea with regard to coercion or undue influence appeared to have been taken in
the plaint (the plaint is not filed with the paper book). Reference may also be made to
decision of this Court in Muhammad Hussain v : Sheikh Muhammad Tufail and others
1981 SCMR 877 wherein this Court held that when petitioner is found to have been
blowing hot and cold in same breath and making different contradictory positions as
and when it so suited him the said conduct of the petitioner would not entitle him to
any relief in the constitutional jurisdiction of the High Court and therefore, not entitled
to grant of leave to appeal before this Court. In the instant case entire record would
show that the case of the petitioners is based on factual controversy between the parties
in respect of claim of damages on which concurrent findings have been arrived at by
the First Appellate Court and affirmed by the High Court. The said concurrent finding
of fact arrived at when there being no misreading or non-reading of evidence is pointed
out, the same as held by this Court time and again cannot be interfered with in the
constitutional jurisdiction by this Court. Reference may be made to Asmatullah Khan
and others v. Jhangi Khan and others 1995 SCMR 207, Waris Khan and 2 others v.
Mst. Zainab Nisa and others 1997 SCMR 526, Karachi Tannery (Pvt.) Ltd. v.
Muhammad Yousaf through Legal Heirs 2002 SCMR 680, Sardar Muhammad and
another v. Akram and others 2002 SCMR 807, Messrs Huffaz Seamless Pipes
Industries Ltd. v. Messrs Security Leasing Corporation Ltd. 2002 SCMR 1419 and
Yaqub Masih Jacob v. Mrs. Louisa De Souza 1992 SCMR 1799.

7. In view of fact that there are concurrent findings of fact of the Appellate Court and
affirmed by the High Court and no misreading and non-reading in the evidence has
been pointed out and further no substantial question of law being involved in this
petition within the meaning of Article 185(3) of the Constitution of Islamic Republic of
Pakistan, therefore, no interference is called for in the constitutional jurisdiction of this
Court, consequently leave to appeal is declined and the petition is dismissed.

(Sd.) Hamid Ali Mirza, J

I concur but have added my separate note.

(Sd.) Rana Bhagwandas, J

8. RANA BHAGWANDAS, J.--- At the hearing of this petition at Karachi Registry of

this Court, it was vehemently contended by Mr. Bilal A. Khawaja, learned Advocate
Supreme Court for the petitioner-Company that the petitioner was constrained to sign
various documents, including "no demand certificate" and the final bill in respect of
the contract executed by him under coercion and undue influence. Precisely quoting
the learned counsel, it may be observed that he had used the maxim "economic
coercion" on the part of the employer, who had allegedly withheld the payment of
various running bills and by delaying such payments made the Directors of the
Company to starve. Since the entire pleadings of the parties and the evidence were not
available before the Court, truly speaking, I had formed a tentative opinion to grant
leave to examine the aforesaid question of law. Nevertheless, my learned brother
Hamid Ali Mirza, J was inclined to dismiss the petition, therefore, the announcement
of judgment was reserved.

9. Now since entire record is made available by the High Court on my requisition, I
have verified from the' contents of the memo of plaint as well as evidence adduced at
the trial of the suit, which clearly contradicts the submission made before the Court. In
the first instance, the plaintiff/petitioner had not raised the issue of undue influence and
economic coercion played by Garrison Engineer, Pano Akil Cantonment or Chief
Engineer Army, Rawalpindi and secondly in the evidence it was all along conceded
that all payments on account of running bills for execution of the contract and work
were received without any protest or demur. In view of candid admission by the
Directors of the plaintiff-Company that they had submitted various running bills,
which were passed after certain deductions and the payment was received without any
protest and reservation, it does not lie in the mouth of the plaintiff to agitate, for the
first time, at this stage that they kept silent on account of undue influence of the
respondents within the meaning of the expression as employed in section 16 of the
Contract Act, 1872. No doubt in the facts and circumstances of the suit, respondents
were in a dominating position to dictate their terms and influence the plaintiff to accept
the payments, whatsoever, released, there is hardly any pleading, much less any
evidence, on the issue supporting the view of the learned counsel. I have, therefore,
changed my tentative opinion of rendering a split judgment and would agree with the
conclusion arrived at.

10. It is well-settled proposition of law that in the event of a conflict between the
judgments of trial Court and the First Appellate Court, preference should be given to
the views of the Appellate Court, who had the opportunity of examining and analysing
the evidence of the parties. The rule is, however, neither absolute nor inflexible. In case
the judgment of the Appellate Court is not well-founded and the reasons assigned for
taking a different view from that of the trial Court appear to be not warranted by
record, it cannot be preferred. In the present case, oral as well as documentary
evidence has been analysed carefully, correctly and consciously by the Appellate
Court, which has been rightly affirmed and not interfered with by the High Court,
therefore, the judgments of both the above forums are not open to any exception.

11. Needless to reiterate, in view of concurrent findings of fact by two Courts below,
including the High Court, no ground is made out for interference by this Court in the
exercise of extraordinary constitutional jurisdiction. Furthermore, no question of law of
public importance is spelt out therefore the petition must fail and is hereby dismissed
with no orders as to costs.

M.H./E-6/SC Petition dismissed.

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