JUDGMENT

Muhammad SaleemJessar, J.-Through this Civil Revision Application the applicant has challenged Judgment and Decree dated 24.12.2010 passed in Civil Appeal No.97 of 2010 whereby he allowed the appeal filed by the respondent and set aside Judgment dated 24.03.2010 and Decree dated 30.03.2010 passed by learned 1^st Senior Civil Judge, Khairpur Mir’s whereby he dismissed Civil Suit No.189/2009 (Old No.227/2006) (Re-Hoat Ali Vs. Province of Sindh and others) filed by the respondent.

Brief facts giving rise to the filing of instant Civil Revision are that the respondent/plaintiff is approved “A” Class contractor with the applicants/defendants and is pre-qualified for the Irrigation works. The applicant / defendant No. 4 floated a tender, vide notice No.TC/G/55/355 dated 16.04.1998, through widely circulated newspapers inviting the sealed tenders in “V-I Forms” from the approved “A” Class Irrigation contracts for the works as described in the plaint.

The respondent/plaintiff deposited Rs.36,000/- as earnest money in the National Bank of Pakistan Branch, Mirwah (0-212) in favour of applicant / defendant No. 4. The respondent also filed the sealed Tender in B-I Form and made the lowest offer for execution of the work. The defendants accepted the offer of the plaintiff and the defendant No. 2 sanctioned the estimate of the work and proposed expenditure. The defendants awarded the contract to the respondent/plaintiff after observing all the codal formalities. As the defendants faced urgency, hence they asked the plaintiff to execute and complete the work as early as possible, in order to avoid any mishap and assured the plaintiff that necessary formality of issuance of the work order in favor of the plaintiff would be completed in due course of time. The respondent/plaintiff executed and completed the work accordingly and incurred an amount of Rs.18,00,000/- (Eighteen hundred thousand rupees) over the execution and completion of the work. Grievance of the respondent is that the defendants with ulterior motive withheld the payment of Rs.18,00,000/-on the ground that there is no work order issued in favor of the plaintiff/respondent and without work order the plaintiff was not entitled to receive payment of Rs.18,00,000/- hence the plaintiff approached higher authorities against the defendants for payment of Rs.18,00,000/-. Applicants / Defendants No: 1 to 4 directed applicant/defendant No. 5, Assistant Executive Engineer Barrage Division Sukkur, to visit the site and submit a report, who visited the site and reported that the plaintiff has executed and completed the work as per instructions of the defendants. The defendants without any lawful justification and reasons have withheld the payment of Rs.1800,000/- of the plaintiff. The plaintiff approached the applicants/defendants for payment of the aforesaid amount but the defendants totally refused to make payment of the said amount to the respondent/plaintiff, hence he filed the suit.

After the admission of suit and service of notice upon the applicants/defendants they appeared and filed their written statements wherein they denied the claim of the respondent/plaintiff by stating therein that contract was not awarded to the plaintiff nor work order was issued to him. There is nothing on record of the applicants /defendants regarding filling of sealed tender by the plaintiff or awarding of suit contract to him. It was further pleaded that the plaintiff has no cause of action to file the suit and the suit of the plaintiff was not maintainable and prayed for dismissal of the suit

After framing of the issues, recording of evidence of the parties and hearing the arguments advanced by the counsel for the parties, the trial Court dismissed the suit of the respondent by judgment and decree dated 24.3.2010 and 30.3.2010 respectively. The respondent/plaintiff challenged the judgment and decree passed by the trial Court by filing a civil appeal which was allowed by the Appellate Court vide impugned judgment and decree which has been assailed by the applicants/defendants in the instant civil revision application.

I have heard the arguments advanced by learned counsel for the parties and perused the material available on the record.

Learned A.A.G. appearing for the applicants contended that the appellate court erred in passing the impugned judgment and decree which are not sustainable in law and on facts. He further contended that the Appellate Court has not appreciated properly the evidence adduced by the parties and has passed the impugned judgment in a hasty and mechanical manner. He further contended that the appellate court has not assigned cogent and sound reasons for its findings. He further contended that, in fact, the contract was not awarded to the respondent nor the work order was issued in his favour. According to him, there is nothing on record regarding the filling of sealed tender by the respondent or awarding of the contract to him. He further contended that no cause of action accrued to the respondent for filing the suit, thus the same was rightly dismissed by the trial Court and the appellate court has reversed the findings of the trial Court without any legal justification. He further contended that the appellate court while delivering the impugned judgment has given undue weight to the arguments advanced by the counsel for the respondent, whereas the arguments advanced on behalf of the applicants/defendants were not taken into consideration. He prayed for allowing the revision application and setting aside the impugned judgment and decree passed by the appellate court and restoration of the judgment and decree passed by the trial Court. In support of his contentions he relied upon the case-law reported in PLD 1957 Karachi 663, PLD 1976 Karachi 623, PLD 1977 Karachi 297, 1997 CLC 893, 2012 CLC 377, 2010 SCMR 1408, 2004 PTD 1944, 2009 CLC 759, 2003 MLD 1485, 2001 MLD 401 and 2006 YLR 1496.

Conversely, learned counsel forthe respondent/plaintiff, while supporting the impugned judgment and decree passed by the Appellate Court, contended that the findings of the Appellate Court are based on sound and cogent reasons. He further contended that the written statement filed by the applicants/defendants was not supported by them before the trial Court. He further contended that in their examination in chief the applicants admitted the facts stated in the plaint. He further contended that the findings given by the trial court on additional issue attained finality as the same was not challenged by the applicants by filing any appeal. He further contended that the applicant did not cross-examine witnesses of the respondent, as such the assertions made by them in their examination-in-chief are deemed to have been accepted by the applicants. According to him, in the presence of a valid contract between the parties, the absence of any work order does not make any difference. He further contended that the documentary evidence could not be rebutted by oral evidence. He further contended that the pleas not raised by the applicants before the lower courts, cannot be raised at the revisional stage. He prayed for dismissal of the revision application and upholding the impugned judgment passed by the Appellate Court. In support of his contentions, he relied upon the case-law reported in 2018 CLC 1524, 2003 SCMR 41, 2016 MLD 1926, 2008 SCMR 521, 2017 CLC 495, 2018 YLR 1557, 2006 SCMR 721, PLD 2009 Lahore 518, PLD 2008 SC 571, 2018 SCMR 1385 and 2017 CLC 1085.

Before touching the merits of the case, it may be observed that the revisional jurisdiction of this Court under section 115 C.P.C. has very limited scope. Such jurisdiction can be exercised only in those cases where the subordinate court has exceeded its jurisdiction or has declined to exercise its jurisdiction or has acted in exercise of its jurisdiction in a manner contrary to law or in a manner not warranted by law. Besides, from the perusal of section 115 CPC, it transpires that the remedy of filing civil revision before this Court can be availed in case no appeal lies against the order which has been impugned in the revision application. For the sake of convenience Section 115(1) C.P.C., is reproduced as under:

“115.-1[(1 )} The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears;

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit;”

In the instant case remedy by way of filing Second Appeal under section 100 CPC was available to the applicants, however, the applicants instead of availing that remedy, have filed civil revision. It may be observed that Section 100 CPC provides that second appeal could be filed when the decision of Lower Court is contrary to law or usage having the force of law; when some material issue of law is not decided; and when there is a substantial error or procedural defect which resulted in the erroneous or defective decision. In the instant case the grounds on which the applicant has filed instant civil revision are covered by the grounds on which a Second Appeal under section 100 CPC could be filed, therefore it was incumbent upon the applicant to prefer the Second Appeal under section 100 CPC instead of preferring civil revision application under section 115 CPC, particularly when it has been specifically provided in Section 115 CPC, that the civil revision could be filed only when no appeal lies against the order proposed to be assailed. From the perusal of the grounds of the Revision Application and the arguments advanced during the course of hearing of revision application, it seems that the applicant has raised the grounds which fall under the purview of section 100 CPC. For instance; in para01 of the Grounds of revision application it is mentioned that the judgment and decree of the Appellate Court are ‘against the law, facts and equity’ which is covered by clause (a) of Section 100 CPC. Similarly, Ground No.10 of the revision application says, “That the judgment and decree of the learned IInd Additional District Judge, Khairpur, are against all canons of law and justice, and liable to be set-aside”. Such ground is also covered by clause (a) of Section 100 CPC.

In this connection, reference may be made to a decision given by Honourable Supreme Court in the case of Cantonment Board Rawalpindi Vs. Mohammad Sharif through legal heirs reported in PLD 1995 S.C. 472 wherein it was held as under:

“As regards the first contention, it may be observed that the judgment and decree dated 11-3-1960 passed by the learned District Judge Rawalpindi, was appealable, therefore no revision was competent before the learned High Court under section 115 CPC.”

In another case reported as Sheikh FaqeerMohamamd Vs. Mohammad Din (1993 SCMR 1955), Honourable Supreme Court held as under:

“Position thus crystallizes that the respondent had the right to file a second appeal and no revision lay under section 115 C.P.C. As held in PLD 1970 SC 506 a revision does not lie where the order is appealable with the District Court. Even in cases where the second appeal lies, to the High Court revision will not be maintainable against that judgment and decree.”

In view of above legal position instant Civil Revision Application is not maintainable on this score, as the remedy of filing the second appeal under section 100 CPC was available to the applicants which were not exhausted and instead the applicants opted to prefer instant civil revision application.

Even on merits the applicants/defendants do not have a good case. It seems that the respondent/plaintiff in order to support his case, examined himself and also called two official witnesses namely, Mohammad Ilyas (Ex.25) and Faizullah (Ex.26). P.W. Mohammad Ilyas in his evidence deposed as under:

“I have received summons of this Court for evidence. I am serving as Sub Engineer in Irrigation Department. I know the plaintiff. The plaintiff is Government Contractor in our department. The plaintiff was awarded a contract on emergency basis for earth work of non- inspection path from RS 32 to 33 R/site and RS 45 to 52 or/site (sic) along with Rohri Bank canal. At that time of awarding the contract to the plaintiff, I was posted atRohri Canal Begmaji Section. The plaintiff completed earth work. The measurement of the work was conducted by the then Ass: Executive Engineer Rohri canal Sub Division Khairpur."

PW Faizullah deposed as under:

"This court has issued summons to Executive Engineer, West Division, Khairpur for production of documents. I have been authorized by Executive Engineer West Division Khairpur to give evidence and produce documents on his behalf. 1 produce authority as Ex:26-A, letter dated 09.07.1998 as Ex: 26-B (Original seen and returned), photo state copy of a letter dated 10.11.2000 at Ex: 26-C and photo state copy of a letter dated 25.11.2000 as Ex: 26-D"

It seems that the aforesaid two official witnesses have supported the claim of the respondent. P.W. Faizullahalso produced certain documents including inquiry report vide Exh.26/C and 26/D before the trial Court on behalf of the Executive Engineer Irrigation West Division Khairpur Mir’s. However, the said two witnesses were not cross-examined by the official defendants. Not only this but even the plaintiff/respondentHoatAli, who also examined himself before the trial Court, was also not cross-examined by the defendant's side, as such the evidence of the official witnesses, as well as evidence of plaintiff Hoat Ali, has gone un-challenged and un-rebutted. In this connection, reference may be made to a recent judgment of this Court passed in the case of Haroon Zia Malik Vs. Mst. FarihaRazzak and 6 others reported in 2018 Y L R 1557 wherein it has been held as under:

“It is a settled rule of evidence as also laid down in the reported case of NurJehan Begum (1991 SCMR Page-2300), if a witness is not cross-examined in respect of the material portion of his evidence, then that part of the evidence is considered to be admitted, therefore, the above portion of the evidence adduced by Respondents is in fact admitted by the present Appellant.”

In another case reported as Mohammad Akram Qureshi and another Vs. Pakistan Defense Housing Authority (2017 CLC 495 [Sindh]) this Court held as under:

“The record also reveals that the Plaintiffs' statement under paras. 10, 11, 12 and 13 of the affidavit-in-evidence [Exh.P-5], which is a material part of latter's [Plaintiff] testimony have not been subjected to cross-examination, hence, the same shall be deemed to have been admitted. It is by now a settled principle of law that any deposition made in the examination-in-chief, if not subjected to cross-examination, shall be deemed to have been admitted. Reliance can be placed on M/s. Akbar Brothers v. M Khalil Dar (PLD 2007 Lahore 385)

It is also significant to point out here that the defendants/applicants side examined only one witness namely Sharafuddin, Assistant Executive Engineer Irrigation West Division Khairpur(Ex: 32). The said witness of the defendants did not produce even a single document during the course of his evidence against the claim of plaintiff Hoat Ali, rather the evidence of the said witness supported the respondent’s case. It would be advantageous to reproduce hereunder the relevant portion from the evidence of the said witness:

"The tender of the suit contract was invited in daily newspaper Kawish in the year 1998. The plaintiff had filed the Tender with the highest rate. The tender of the plaintiff was accepted but subsequently, it was canceled by S.E Irrigation.”

In his cross-examination he admitted as under:

“It is correct to suggest that tender submitted by the plaintiff was accepted. It is incorrect to suggest that tender of the plaintiff was not canceled. It is correct to suggest that I have not filed any document to show that the tender of the plaintiff was canceled. It is correct to suggest that according to our record the plaintiff had completed the suit contract."

From the perusal of the evidence adduced by the respective parties, it is crystal clear that respondent/plaintiffHoat Ali succeeded in establishing his claim before the trial Court as neither he, nor his witnesses were cross-examined by the other side. Not only this, but even the own officials of the applicants/defendants also supported the case of the plaintiff/respondent. No material was produced on behalf of the applicants/defendants in order to rebut the claim of the plaintiff/respondent. On the contrary, the documents produced by the official of the defendants namely Faizullahas Ex: 26-A to 26-D fully support the claim of the plaintiff/respondent. Needless to emphasize the well-settled principle of law that facts which have been admitted by any party need not be proved any further, therefore as the witness of the applicants/defendants himself made admissions which amounts to acceptance of the respondent’s claim, thus even that was sufficient for allowing the claim of the respondent/plaintiff. In this connection, reliance may be placed to a case reported as Nazir Ahmed through Legal Heirs Vs. Mohammad Rafiq land 4 others (2016 MLD 1926 [Lahore]) wherein Honourable Lahore High Court held as under:

“12. Undeniably, the predecessor of petitioner himself admitted in his statement, referred above, before Court of law that land in question was not partitioned. Such admission acts as an estoppel against the party making it. Even otherwise, such statement constitutes judicial admission which cannot be overlooked. The admissions have to be construed strictly. It is also well established that facts admitted need not to be proved especially when such admission has been made before the Court of law as a result whereof the earlier suit was disposed of. Reference can be made to the case Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21).”

It seems that the applicants/defendants have laid much stress on the fact that the respondent has completed the work without the issuance of any work order in his favour. Such plea is also devoid of force for the reasons; firstly, that if it is presumed that the said work was completed by the contractor/plaintiff without issuance of work order even then the said fault is on the part of concerned officials of the defendants/applicants and due to such fault on their part the plaintiff/appellant cannot be deprived of his huge legitimate amount incurred by him on the completion of work awarded to him verbally or otherwise which is admitted by the officials of the defendants in their evidence and proved by virtue of the documents brought on record. It is also settled principle of law that one cannot be penalized on account of lapse and negligence made by other, particularly by a government department/agency. Secondly; even an oral agreement is also not prohibited, particularly in case of an emergency. In the instant case, the applicants/defendants have not denied the execution of contract but the only defense taken by them is that the respondent/plaintiff was not authorized to carry out and complete the work without the issuance of any work order having been issued in his favor. I am afraid, this assertion is not tenable in law. In this connection, it would be pertinent to make reference to a judgment of Honourable Lahore High Court passed in the case of Government of Punjab through Secretary Health Department, Lahore, and 2 others Vs. Khyber International Printer through Proprietor reported in PLD 2009 Lahore 518 wherein while relying on Article 173(3) of the Constitution, it was held as under:

“An observant reading of this provision of the Constitution would show and show clearly that an oral agreement was not prohibited. It is not the case of the defendants/appellants that the oral agreement was not made with free consent of the parties or the parties were not competent to contract or consideration of the contract was not lawful or its object was not lawful or the oral agreement was otherwise void. Section 10 of the Contract Act. 1872 did not exclude an oral contract from being enforced although in case of an oral contract clearest and more satisfactory evidence would be demanded by the Court. A reference to Chapter 1, para.2(note)(I) of the purchase Manual Government of Punjab would also be apt. This provision deals with transactions in case of emergency situations.”

Yet in another case reported as Messrs M.A.KHAN & CO. through Sole Proprietor Mohammad Ali Khan Vs. Messrs PAKISTAN RAILWAY EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. Through Principal Officer/Secretary, Karachi (2006 SCMR 721) Honourable Supreme Court held as under:

“The tender notice is an invitation which is extended for making offer and it is not an offer or proposal and similarly offer made by a person without acceptance does not create any promise or agreement but acceptance of an offer or proposal by the person who called for tender would constitute an agreement. The acceptance of the offer may be express or implied or it can be gathered from the conduct of parties and the circumstance of the case. The acceptance of an offer would give rise to an agreement which if is enforceable in law is a valid contract and the contract is complete as soon as the offer is accepted and the terms of the contract required to be reduced in writing would be only incidental to the completion of the contract. Ina contract by correspondence if the acceptance of the offer is established through the letters, the non-execution of the formal agreement would not be essential to constitute a valid contract. The letters of offer and acceptance indicating the term agreed upon by the parties would constitute a valid contract which would not be affected by subsequent negotiation and the terms of the contract would necessarily be judged from the letter of acceptance.”

In view of the above legal and factual position, it is apparent that the respondent/ plaintiff had proved its claim and in support thereof, he had produced oral as well as documentary evidence which could not be rebutted by the applicants/defendants, rather their own witness also supported the claim of the respondent. Thus, it seems that the findings given by the trial Court while dismissing the suit of the plaintiff/respondent were not in accordance with the factual as well as legal aspects of the case and the Appellate Court has rightly reversed such findings for which it has furnished sound and cogent reasons.

So far as the case-law relied upon by the applicants/defendants is concerned there is no cavil to the proposition laid down therein, however, the said judgments seem to be distinguishable as the facts and circumstances of the instant case and that of cited cases are quite different.

The upshot of the above discussion is that the instant civil revision application is dismissed. Consequently, impugned judgment and decree dated 24.12.2010 passed by learned IInd Additional District Judge, Khairpur Mir’s, in Civil Appeal No.97 of 2010 are maintained, resultantly the suit of the plaintiff/respondent vide civil suit No. 227/2006 (old) and civil suit No.189/2009 (new) Re: Hoat Ali vs. Province of Sindh & others, stands decreed as prayed. However, there will be no order as to costs. Let R & Ps of civil suit No.227/2006 (old) and new civil suit No.189/2009 be remanded to 1^st Senior Civil Judge, Khairpur Mir’s along with copy of the judgment for compliance and record.

JUDGE

Irfan/PA