Case laws on Contractual Obligations Upheld: Road Construction Case Law
Apologies for the oversight. Here are some case laws from Pakistan related to contractual disputes and arbitration:
1. **Punjab Small Industries Corporation v. M/s Fair Traders (2009 CLC 1617)**:
- In this case, the Lahore High Court held that if a contract contains a provision for the payment of interest on delayed payments, then the party entitled to receive the payment can claim interest as part of damages for the delay.
2. **Nasir & Co. v. Chief Executive, Cantonment Board (2004 CLC 925)**:
- The Lahore High Court in this case emphasized that if a contract is silent on the issue of interest on delayed payments, then interest cannot be awarded as part of damages unless there is a statutory provision allowing for the same.
3. **Crescent Board Mills Ltd. v. Mohammad Hanif (2009 CLC 1325)**:
- In this case, the Lahore High Court held that if there is an express or implied promise in the contract for payment of interest in case of delayed payment, then interest can be awarded as part of damages.
4. **Al Hamd v. Pakistan International Container Terminal Ltd. (2011 CLD 1625)**:
- The Karachi High Court in this case reiterated the principle that in the absence of a specific contractual provision for the payment of interest on delayed payments, interest cannot be awarded as part of damages.
5. **Pakistan Telecommunication Corporation v. HBL (1998 SCMR 823)**:
- The Supreme Court of Pakistan in this case held that interest can be awarded on delayed payments if the delay is attributable to the party liable to make the payment and if there is no provision in the contract prohibiting the payment of interest.
These case laws provide insights into how courts in Pakistan have interpreted contractual disputes and the award of interest in cases involving delays and arbitration. They highlight the importance of contractual terms and fairness in resolving disputes.
The case law revolves around a contract for road construction awarded to a contractor. Disputes arose over delays, leading to arbitration and subsequent court proceedings. The court upheld the award of interest to the contractor due to delays caused by the authorities, dismissing the petitioner's plea to overturn the lower courts' decisions. The case highlights the importance of honoring contractual obligations and addressing disputes promptly to avoid financial implications.
کیس کا قانون سڑک کی تعمیر کے ٹھیکے کے گرد گھومتا ہے جو ایک ٹھیکیدار کو دیا گیا تھا۔ تاخیر پر تنازعات پیدا ہوئے، جس کے نتیجے میں ثالثی اور بعد ازاں عدالتی کارروائی ہوئی۔ عدالت نے نچلی عدالتوں کے فیصلوں کو کالعدم قرار دینے کی درخواست گزار کی درخواست کو مسترد کرتے ہوئے حکام کی طرف سے تاخیر کی وجہ سے ٹھیکیدار کو سود کے ایوارڈ کو برقرار رکھا۔ یہ مقدمہ مالیاتی اثرات سے بچنے کے لیے معاہدے کی ذمہ داریوں کا احترام کرنے اور تنازعات کو فوری طور پر حل کرنے کی اہمیت کو اجاگر کرتا ہے۔
**مقدمہ قانون کا تجزیہ: 2016/BWP کے سول نظرثانی نمبر 235 کو سمجھنا**
لاہور ہائی کورٹ، بہاولپور بنچ کے جاری کردہ حالیہ فیصلے میں، 2016/BWP کے سول نظرثانی نمبر 235 میں ایک اہم کیس قانون پر بحث اور تجزیہ کیا گیا۔ اس کیس میں صوبہ پنجاب اور ایک ٹھیکیدار فرم، فرم فرینڈز اینڈ انجینئرز بہاولپور کے درمیان دھاتی سڑک کی تعمیر کے حوالے سے تنازعہ شامل تھا۔
**پس منظر:**
سڑک کی تعمیر کا ٹھیکہ ایگزیکٹو انجینئر، ہائی وے ڈویژن، بہاولپور نے جواب دہندہ کنٹریکٹر کو دیا تھا۔ تاہم، مختلف تاخیر اور مسائل کی وجہ سے، جواب دہندہ-ٹھیکیدار مقررہ وقت میں کام مکمل کرنے میں ناکام رہا۔ نتیجتاً، تنازعہ کو حل کرنے کے لیے ثالثی کی کارروائی شروع کی گئی۔
**فیصلے کے اہم نکات:**
1. **حد بندی کا مسئلہ:** عدالت نے درخواست دائر کرنے کی حد کی مدت کے بارے میں دلیل کو مخاطب کرتے ہوئے کہا کہ چونکہ ثالثوں کی طرف سے کوئی نوٹس جاری نہیں کیا گیا تھا، اس لیے حد بندی کی مدت کو لمیٹیشن ایکٹ، 1908 کے آرٹیکل 181 کے تحت نافذ کیا گیا تھا۔
2. **ایوارڈ میں ترمیم کرنے کا اختیار:** عدالت نے اس بات پر زور دیا کہ ثالثی ایکٹ 1940 کے سیکشن 15 کے تحت، عدالت کو یہ اختیار حاصل ہے کہ اگر کچھ شرائط پوری ہوں تو وہ کسی ایوارڈ میں ترمیم کرے۔ اس معاملے میں، جواب دہندہ-ٹھیکیدار نے انعام کی رقم پر سود شامل کرنے کے لیے ترمیم کی درخواست کی، جسے عدالت نے درست سمجھا۔
3. **کام کی تکمیل اور ذمہ داری:** عدالت نے دیے گئے کام کی تکمیل اور اس میں شامل فریقین کی ذمہ داری پر تبادلہ خیال کیا۔ اس نے نوٹ کیا کہ درخواست گزار کی جانب سے معاہدے کی مدت میں توسیع اور قانونی حکم امتناعی سمیت مختلف عوامل کی وجہ سے تاخیر ہوئی۔
4. **ثالثی کی اہمیت:** عدالت نے ثالثی کے معاہدوں کے احترام اور ثالثی کے ذریعے تنازعات کو حل کرنے کی اہمیت پر زور دیا۔ اس نے ثالثی کے ذریعے تنازعات کو حل کرنے کی اپنی ذمہ داری کو پورا کرنے میں درخواست گزار کی تاخیر پر تنقید کی، جس کے نتیجے میں طویل قانونی چارہ جوئی اور اضافی اخراجات کا سامنا کرنا پڑتا ہے۔
5. **نچلی عدالت کے فیصلوں کی درستگی:** عدالت نے زیریں عدالتوں کے فیصلوں کو برقرار رکھا، یہ کہتے ہوئے کہ وہ قائم شدہ قانونی اصولوں اور نظیروں کے مطابق ہیں۔ اس نے مسائل کی تشکیل اور دائرہ اختیار سے متعلق درخواست گزار کے دلائل کو مسترد کر دیا۔
6. **درخواست کی برخاستگی:** آخر میں، عدالت نے اس بات پر زور دیتے ہوئے درخواست کو مسترد کر دیا کہ درخواست گزار کے دلائل میں کوئی میرٹ نہیں ہے اور نچلی عدالت کے فیصلوں میں مداخلت کی کوئی بنیاد نہیں ہے۔
**نتیجہ:**
2016/BWP کے دیوانی نظرثانی نمبر 235 کا فیصلہ ثالثی کے معاہدوں پر عمل کرنے، معاہدے کی ذمہ داریوں کو پورا کرنے، اور طویل قانونی چارہ جوئی اور اضافی اخراجات سے بچنے کے لیے تنازعات کو مؤثر طریقے سے حل کرنے کی اہمیت کی یاد دہانی کے طور پر کام کرتا ہے۔ یہ قانونی کارروائی میں منصفانہ اور منصفانہ نتائج کو یقینی بنانے کے لیے متعلقہ قوانین اور نظیروں کی تشریح اور ان کا اطلاق کرنے میں عدالت کے کردار کو اجاگر کرتا ہے۔
8
Judgment Sheet
LAHORE HIGH COURT
BAHAWALPUR BENCH, BAHAWALPUR
JUDICIAL DEPARTMENT
Civil Revision No.235 of 2016/BWP
Province of Punjab through DOR/ADC & others
Vs.
Firm Friends & Engineers Bahawalpur & others.
JUDGMENT
Date of hearing: 27.03.2024.
Petitioners by:
Hafiza Mehnaz Nadeem Abbasi, Assistant
Advocate General alongwith M. Shafique,
SDO Highway Department.
Respondent by: Mr. Irfan Karim ud Din, Advocate.
Shujaat Ali Khan, J: - Unnecessary details apart, the
facts, as spelt out in this petition, are that contract for
construction of metalled road from Qaimpur to Baqainwala
district Bahawalpur was awarded to Firm Friends & Engineers,
Bahawalpur (hereinafter to be referred as “the respondentcontractor”) pursuant to letter bearing No.54/W/9121, dated
16.04.1986, addressed by the Executive Engineer, Highway
Division, Bahawalpur. Due to issuance of an injunctive order
by the civil court, the respondent-contractor failed to execute
CR No.235 of 2016/BWP.
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the awarded work within the stipulated time, as a result, the
respondent-contractor applied for extension of time. The
Superintending Engineer, Highway Circle, Bahawalpur,
acceded to the request of the respondent-contractor for
extension of time through letter dated 12.09.1987 and it was
allowed to complete the work till 15.10.1987 subject to
payment of penalty at the rate ½ per cent of the agreement
amount. Since the respondent-contractor could not complete the
assigned work even within the extended period, it applied for
another extension which was allowed by the Superintending
Engineer Highway Circle, Bahawalpur vide letter dated
12.12.1989 and it was permitted to complete the work upto
30.10.1989 subject to further penalty of 0.5%. As the
respondent-contractor could not accelerate the pace of work at
site it was issued repeated notices by the Executive Engineer
Highway and Sub Divisional Officer to gear up the construction
work at site. Finally, the Superintending Engineer Highway
Circle, Bahawalpur on the recommendations of the Executive
Engineer, Highway Division, Bahawalpur, declared the
respondent-contractor as defaulter through letter dated
24.01.1988. In view of differences between the parties, the
respondent-contractor submitted application before relevant
CR No.235 of 2016/BWP.
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authority for settlement of the dispute through arbitration as per
terms of the agreement whereupon Mr. Muhammad Naeem
Chughtai was appointed as Arbitrator, who subsequently
withdrew his name on 16.01.2003. As a result, the respondentcontractor filed complaint before the Ombudsman, Punjab,
highlighting maladministration on the part of the departmental
authorities in respect of release of outstanding dues etc. The
Ombudsman, Punjab, vide order, dated 22.08.2006, directed the
departmental authorities to get the matter resolved through
arbitration whereupon M/s Ch. Muhammad Rafique and Fayyaz
Ahmad Nangiana, Superintending Engineers (respondents
No.2 & 3/Arbitrators), were appointed as Arbitrators who
announced their Award on 08.05.2007 and sent the Award
alongwith the record to the Chief Engineer (South), Provincial
Highway Department, Lahore. The respondent-contractor filed
multiple applications before the Chief Engineer (South),
Provincial Highway Department, Lahore for provision of copy
of the Award which was sent to it through letter bearing
Dispatch No.DA/84, dated 26.06.2007 (Exh.A/4). Upon receipt
of copy of the Award, the respondent-contractor filed
application before the learned Senior Civil Judge, Bahawalpur
for production of the Award alongwith record before the court;
CR No.235 of 2016/BWP.
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for modification of the Award and making the same as rule of
the Court which was marked to the learned Civil Judge, 1
st
Class, Bahawalpur (learned Trial Court) who, through
judgment and decree, dated 30.11.2012, while making the
Award as rule of the Court, modified the same to the effect that
the respondent-contractor would be entitled to recover the
amount of Award (Rs.2,63,028/-) alongwith 15% interest from
the year 1989 till payment of the amount. Being aggrieved of
the judgment & decree passed by the learned Trial Court, the
petitioners preferred an appeal (bearing No.35 of 2013) before
the learned District Judge, Bahawalpur, whereas the
respondent-contractor, instead of challenging the judgment and
decree of the learned Trial Court through independent appeal,
filed cross-objections (bearing No.123 of 2013). The learned
Additional District Judge, Bahawalpur (learned Appellate
Court) through consolidated judgment & decree, dated
22.05.2015, while dismissing the appeal of the petitioners
accepted the cross-objections filed by the respondent-contractor
and modified the findings of the learned Trial Court to the
extent that the respondent-contractor would be entitled to
interest at the rate of 15% per annum on the awarded amount.
CR No.235 of 2016/BWP.
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Being aggrieved of the decisions of the courts below, the
petitioners have filed this civil revision petition.
2.
The submissions made by the learned Assistant Advocate
General, representing the petitioners, at bar and those
encapsulated in the revision petition, are to the effect that the
Award can only be modified by the Court if the conditions,
enumerated under Section 15 of the Arbitration Act, 1940 (the
Act, 1940) are fulfilled but in the present case none of the
conditions postulated under the said provision was attracted,
thus, the impugned decisions of the courts below are not
sustainable; that when the respondent-contractor did not file any
objection against the Award announced by the Arbitrators, he
could not reopen the matter before the Civil Court through an
application for making the award as rule of the Court; that since
the application filed by the respondent-contractor was barred by
the law of limitation, the same could not be entertained by the
Civil Court, thus, both the courts below did not appreciate the
point of limitation in its true perspective; that learned Appellate
Court did not give its findings on each Issue rather decided the
matter in a slipshod manner, hence, its decision does not qualify
the test of a judicial verdict; that without exhausting
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departmental remedies, the respondent-contractor could not
approach the Civil Court; that since Issues were not properly
framed, both the courts below did not decide the controversy
between the parties in its true perspective and that the impugned
judgments & decrees of the courts below being result of
misreading and non-reading of evidence are not sustainable. In
support of her contentions, learned Law Officer, representing
the petitioners, has relied upon the cases reported as Province of
the Punjab through Collector District Khushab, Jauharabad
and others v. Haji Yaqoob Khan and others (2007 SCMR 554),
Muhammad Ali v. Province of Punjab and others (2005 SCMR
1302), Muhammad Yousaf and others v. Haji Murad
Muhammad and others (PLD 2003 SC 184), Muhammad Afzal
and others v. Province of Punjab through Collector, Multan
and others (2001 SCMR 593), Mst. Sughran Bibi and others v.
Mst. Jameela Begum and others (2001 SCMR 772), Alam Sher
through Legal Heirs v. Muhammad Sharif and 2 others (1998
SCMR 458), Bakht Zamin v. Said Sajid (1989 SCMR 1719),
Aslam and another v. Abdul Sattar (2007 YLR 2472),
Muhammad Khalid and another v. Muhammad Iqbal and
another (2005 CLC 970), Ms. Benazir Bhutto v. News
Publications (Pvt.) Ltd and 4 others (2000 CLC 904), Raza
CR No.235 of 2016/BWP.
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Hussain v. Haji Qaisar Iqbal and 7 others (1996 MLD 55),
Mansab Ali v. Hafizan and 5 others (PLD 1993 Lahore 1) and
Azizur Rehman v. L.D.A. (1985 CLC 2028).
3.
Conversely, learned counsel representing the respondentcontractor, while defending the impugned judgments & decrees
of the courts below, argues that since the department failed to
clear the outstanding liability of the respondent-contractor, no
illegality was committed by both the fora below while awarding
15% interest against the outstanding amount; that when the
petitioners did not file any objection against the Award
announced by the Arbitrators, within prescribed period of
limitation, they have no justification to question the validity of
the said Award before this Court; that since the respondentcontractor filed application before Civil Court within prescribed
period of limitation, the same was within time and the objection
raised by the learned Law Officer, representing the petitioners,
is not sustainable. To fortify his contentions, learned counsel
has relied upon the cases reported as National Highway
Authority through Chairman, Islamabad v. Messrs Sambu
Construction Co. Ltd Islamabad and others (2023 SCMR
1103), Shahbaz Gul and others v. Muhammad Younas Khan
CR No.235 of 2016/BWP.
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and others (2020 SCMR 867),, Safdar Ali Khan v. Azad
Government of the State of Jammu and Kashmir through Chief
Secretary and 2 others (2012 CLC 1097),, Messrs Tribal
Friends Co. v. Province of Balochistan (2002 SCMR 1903),
National Highway Authority through Director (Legal) v. Lilley
International (Private) Ltd. and another (2020 CLC 608),
Nasir Khan v. Zamin Shah and another (2019 CLC 741),
Messrs DIR Wood Works through proprietor v. Secretary,
Works and Communication Department Government of NWFP
and 3 others (2016 YLR 1687), Lahore Development Authority
through Managing Director, WASA Lahore v. Messrs Faisal
International Construction Corporation Ltd (2004 CLC 594),
and Dil Muhammad v. Additional District Judge Sahiwal and 3
others (1991 MLD 2068).
4.
I have heard learned counsel for parties at considerable
length and have also gone through the documents appended
with this petition in addition to the case-law cited at the bar.
5.
Firstly taking up the point of limitation, I am of the view
that where notices are issued to the parties by the Arbitrator(s),
in terms of section 14 of the Act 1940, the period of limitation
to file Award in the court by the Arbitrator or to move an
CR No.235 of 2016/BWP.
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application by any of the parties seeking direction for filing of
Award in the Court and to make the same as rule of the court, is
governed under Article 178 of the Limitation Act, 1908. As far
as the case in hand is concerned, no such notices were issued,
thus, the period of limitation for the respondent-contractor to
file the application, subject matter of this petition, was to be
governed under residuary Article 181 of the Limitation Act,
1908. Reliance in this regard can be placed on the case reported
as Inayatullah Khan v. Obaidullah Khan and others (1999
SCMR 2702) wherein the query, under discussion, has been
responded in the following manner: -
“6. Moreover, in view of the special Article 178 of the
Limitation Act which governs an application for filing in
Court of an award to be made rule of the Court under the
Arbitration Act the question of applying the residuary
Article 181 of the Limitation Act would not arise. In
Article 178 the period is 90 days from the date of service
of notice of the making of the award as rule of the Court
and in the circumstances of this case the said Article
would apply……”
Insofar as the case in hand is concerned, both sides are
unanimous on the point that the Arbitrators announced their
Award, on 08.05.2007, without issuing notice to the parties in
terms of section 14 of the Act, 1940. Resultantly, the
respondent-contractor filed various applications (Exh.A/2,
CR No.235 of 2016/BWP.
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Exh.A/3 & Exh.A/6) before the departmental authorities for
provision of copy of the Award which was dispatched to it
through letter bearing No.DA/84, dated 26.06.2007 (Exh.A/4)
whereas the respondent-contractor filed application under
sections 14, 15 and 17 of the Act, 1940 before the learned
Senior Civil Judge, Bahawalpur on 31.07.2007. In this
backdrop, the application of the respondent-contractor could not
be considered as time barred, even if the limitation was to be
governed under Article 178 ibid thus the findings of the courts
below on the said point being totally in line with the settled law
on the subject are immune from interference by this court in
exercise of its revisional jurisdiction.
6.
While addressing the Court, learned Law Officer,
representing the petitioners, took specific plea that as no
objections were filed by the respondent-contractor against the
Award announced by the Arbitrators, he could not move the
Court for modification of the same. In this regard, I do not see
eye-to-eye with the learned Law Officer for the reason that
section 15 of the Act, 1940 empowers the Court to modify an
Award announced by the Arbitrator(s) while dealing with an
application filed under the Act, 1940 provided the conditions
CR No.235 of 2016/BWP.
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stipulated under the said provision are fulfilled. The said
question has been dilated upon by Hon’ble Supreme Court of
Pakistan in the case of ASCON Engineers (Pvt.) Ltd. v.
Province of Punjab through Secretary, Housing and Physical
Planning Department (2002 SCMR 1662) by inter-alia
observing as under: -
“6.***** Therefore, we are of the opinion that even if it
is assumed for the sake of arguments that there was no
objection but the Court had the authority to correct the
error by modifying the award. Reference in this behalf
may be made to the judgment of Messrs Awan Industries
Limited v. Executive Engineers, Lined Channel Division
and another (1992 SCMR 65)…….”
Insofar as the case in hand is concerned, the respondentcontractor sought modification of the Award to the extent that
he was entitled for interest from the date when the payment was
due till its realization, thus, no illegality was committed by both
the courts below while modifying the findings of the
Arbitrators, on the point of interest, payable to the respondentcontractor.
It is relevant to note that Section 29 of the Act, 1940,
empowers the Arbitrator to grant interest on Awards which for
convenience of reference is reproduced herein below: -
CR No.235 of 2016/BWP.
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“29.Interest on award.—Where and in so far as an
award is for the payment of money the Court may in the
decree, order interest, from the date of, the decree at
such rate as the Court deems reasonable, to be paid on
the principal sum as adjudged by the award and
confirmed by the decree.”
A bare reading of the afore-quoted provision renders it crystal
clear that the respondent-contractor was entitled for grant of
interest against the unpaid amount. Further, this question came
under discussion before the Hon’ble Supreme Court of Pakistan
in the cases of Dawood Cotton Mills Ltd. v. K.F. Development
Corporation Ltd. (2006 SCMR 1555) and Province of Punjab
through Secretary, Housing and Physical Planning, Lahore and
others v. Ilam Din (1998 SCMR 110). In the latter case, the
Apex Court of the country, while dealing with question relating
to power of the Court to award interest/mark-up on the decreed
amount, has inter-alia held as under: -
“4.***** Learned trial Court, however, proceeded to
give determination on merits. In the circumstances, the
learned Judge in the High Court was right in holding
that the Courts below did not commit any illegality in
making the award rule of the Court and awarding the
interest at the rate of 2 per cent, above the bank rate and
as such no case was made out for interference in
revisional jurisdiction.”
7.
Now coming to the plea of learned Law Officer
representing the petitioners that since the respondent-contractor
--13--
failed to complete the awarded work within the prescribed
period, he was not entitled to any amount or interest thereon, I
am of the view that the same does not hold any water for the
reason that initial period stipulated between the parties, for
completion of the work, was extended twice upon request of the
respondent-contractor and it completed the work within the
extended period except a patch which was subject matter of
civil litigation, thus, it does not lie in the mouth of the
petitioners to attribute entire delay to the respondent-contractor
especially when they themselves extended the period of
contract, subject to imposition of penalty and admitted that at a
particular point the work was halted due to issuance of
injunctive order by the civil court.
8.
It has not been denied by the petitioners side that in case
of any difference between the parties the dispute was to be
settled through arbitration as per contents of the agreement and
instead of discharging their liability towards settlement of any
dispute through arbitration, of their own, the petitioners resorted
to the said via-media firstly on the written move of the
respondent-contractor and secondly pursuant to a direction
CR No.235 of 2016/BWP.
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issued by the Provincial Ombudsman which speaks volumes
about sluggishness on their part.
Even otherwise, both sides being signatories of the
agreement were bound to honour their commitments and if any
of them failed to perform its part, the other side could resort to
arbitration but dilly-dally tactics used by the petitioners to avoid
resolution of the matter through arbitration stands proof of the
fact that instead of maintaining their trust amongst the
contractors, the petitioners prolonged the matter on flimsy
grounds which ultimately resulted into extra burden on the
national exchequer in the shape of interest. The said conduct of
the petitioners becomes more clearer when seen in the light of
the fact that though the Award, announced by the Arbitrators,
was made rule of the court through judgment, dated 30.11.2012,
but till date they have not deposited even a single penny to
avoid future interest. Such conduct deserves to be deprecated at
all levels and the officials/officers involved in such slackness
should be taken to task to make them a precedent for the others.
9.
This Court agrees with learned Law Officer that national
exchequer should be guarded against any attempt by
unscrupulous person but at the same time government
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authorities are bound to clear any outstanding liability of a
citizen without any fault and in case they withhold due amount,
without any justification, they cannot be given any exception on
the pretext of safeguarding of the national exchequer. At the
cost of repetition it is observed that petitioners’ stubbornness is
evident from the fact that they did not bother to deposit even a
single penny despite making the Award as rule of court by
learned Trial Court. If the petitioners were so sincere to
safeguard the national exchequer there was no one impeding
their way to deposit the amount determined by the Arbitrators
to avoid any future liability in respect of interest but when they
failed to perform their duty they have no justification to
denounce the claim of the respondent-contractor regarding
interest which has been validated by the two fora below.
10. Now coming to the contention of the learned Law
Officer, representing the petitioners, that the judgment passed
by learned Appellate Court offends against clear cut provisions
of Order XX rule 5 CPC as independent findings have not been
given on all Issues, I am of the view that in routine if a court
fails to give its independent findings under each Issue same is
not sustainable, however, when controversy between the parties
CR No.235 of 2016/BWP.
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has been clinched in an exhaustive manner, the decision of a
court cannot be set aside merely on the ground that independent
findings on all Issues have not been given. Reliance in this
regard is placed on the cases reported as Muhammad Iftikhar v.
Nazakat Ali (2010 SCMR 1868), Muhammad Riaz and others
v. Mst. Ameer Bivi and others (2008 SCMR 1427) and
Muhammad Aamir through L.Rs. v. Muhammad Sher (2006
SCMR 185). In the last mentioned case, the Apex Court of the
country, while dealing with the controversy, under discussion,
has inter-alia observed as under:-
5.*****It is well-settled by now that a judgment which
deals with all the points raised, fulfills the requirements
of law even though it may not have discussed each issue
separately cannot be termed as "illegal or ab initio void"
as pressed time and again by the learned Advocate
Supreme Court on behalf of the petitioner. If any
reference is required the dictum laid down in Umar Din
v. Ghazanfer Ali 1991 SCMR 1816 can be referred.”
If the objection raised by the learned Law Officer, under
discussion, is considered in the light of afore-quoted judgments
of the Hon’ble Supreme Court of Pakistan there leaves no doubt
that learned Appellate Court committed no illegality while
passing impugned judgment & decree especially when it
validated the findings of the learned Trial Court and introduced
CR No.235 of 2016/BWP.
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modification to the extent that 15% interest against awarded
amount would be payable annually.
11. Learned Law Officer, representing the petitioners,
ferociously argued that since the Issues were not framed
according to pleadings of the parties, dispute between the
parties was not decided as per law. In this regard, I am of the
view that court can add or delete an Issue in terms of Order
XIV CPC, on its own or on the move of any party. It is not the
case of the petitioners that they ever moved any application
before learned Trial Court or learned Appellate Court for
amendment/addition or deletion of any Issue or raised oral
objection against framing of Issues by learned Trial Court, thus,
they cannot be allowed to vouch said objection in these
proceedings. Further, a cursory glance over the Issues framed
by learned Trial Court brings it to limelight that they are in
consonance with the pleadings of the parties.
12. Even otherwise, when a party opts to lead evidence and
gets decision of a matter, without raising any objection against
framing of Issues by the court of first instance, it cannot be
allowed to raise such objection at some subsequent stage.
Reliance in this regard is placed on the cases reported as Najaf
CR No.235 of 2016/BWP.
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Iqbal v. Shahzad Rafique (2020 SCMR 1621) and Muhammad
Din and others v. Mst. Naimat Bibi and others (2006 SCMR
586). In the former case the Apex Court of the country while
dilating upon the consequences of non-raising of objection
against framing of Issues before the court of first instance, has
inter-alia observed as under: -
“6.***** So far as objection of learned counsel for the
appellant that the proper issues were not framed, we are
afraid that at this stage when the pleadings of the parties
were in their knowledge and both the parties have led
evidence of their own choice in the shape of oral as well
as documentary, the objection of non-framing of proper
issues is not relevant at this stage.”
13. Though the petitioners are contesting the matter before
this Court tooth and nail but continuation of injunctive order,
issued by the Civil Court, till eruption of dispute between the
parties speaks volumes about their sluggish attitude. Had the
petitioners been able to establish that the entire delay was
attributable to the respondent-contractor, they were well within
their right to object to the claim of the respondent-contractor
and withhold a portion of the outstanding amount but when they
themselves failed to perform their duty towards vacation of stay
order, issued by the civil court, they were not justified to blame
the respondent-contractor in that regard.
CR No.235 of 2016/BWP.
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14. It has not been denied by the learned Law Officer,
appearing on behalf of the petitioners, that the Arbitrators were
appointed with mutual consent of the parties, thus, without
establishing that the said Arbitrators misconducted on any point
the petitioners were bound to honour the Award announced by
them. Though, learned Law Officer has addressed the Court at
certain length but has not been able to point out any material
illegality in the impugned judgments & decrees of the courts
below justifying interference by this Court in exercise of its
revisional jurisdiction.
15. While addressing the Court learned Law Officer,
representing the petitioners, took specific plea that as no
objections were filed by the respondent-contractor before the
Arbitrators, its request before the Civil Court for modification
of the Award was not entertainable. In this regard, I do not find
myself in agreement with learned counsel for the petitioner for
the reason that while dealing with an application for making an
Award as rule of the court, the Court is supposed to consider as
to whether the request can be acceded to or not notwithstanding
the fact as to whether any objection was filed by the either side
or not. In this regard, I stand guided by the judgment of the
Hon’ble Supreme Court of Pakistan, reported as A Qutubuddin
Khan v. CHEC Millwala Dredging Co. (Pvt.) Ltd. (2014
SCMR 1268) wherein the power of the Court to decide as to
whether an Award be made rule of the Court or not has interalia held as under: -
“11. It is settled principle of law that the award of the
Arbitrator who is chosen judge of facts and of law,
between the parties, cannot be set aside unless the error
is apparent on the face of the award or from the award, it
can be inferred that the Arbitrator has misconducted
himself under sections 30 and 33 of the Act. However,
even if no objection under sections 30 and 33 of the Act
has been filed, the Court at the time of making award
rule of Court can see that award does not suffer from
patent illegality.” (emphasis provided)
16. As per law laid down by the apex Court of the country in
the cases of Hajid Wajdad v. Provincial Government through
Secretary Board of Revenue, Government of Balochistan,
Quetta and others (2020 SCMR 2046) and Muhammad Idrees
and others v. Muhammad Pervaiz and others (2010 SCMR 5)
concurrent findings of facts recorded by the courts below
cannot be upset by this Court in exercise of its revisional
jurisdiction in a casual manner until and unless the same ar
CR No.235 of 2016/BWP.
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misreading or non-reading of evidence which is not the position
in the case in hand.
17. Now coming to the case-law relied upon by the
petitioners, I am of the view that the same is inapplicable to the
facts and circumstances of the present case inasmuch as in the
case of Province of the Punjab through Collector District
Khushab, Jauharabad and others (Supra) the Apex Court of the
country has held that when Appellate Court decides to reverse
findings of learned Trial Court it is bound to give reasons
whereas in the instant case learned Appellate Court has
endorsed the findings of learned Trial Court with minor
modification that interest would be payable annually. In the
case of Muhammad Ali (Supra) the question in pith and
substance revolved around power of the Civil Court to reject
plaint of a suit which was filed while bypassing the remedies
before the revenue authorities which is not the position in the
case in hand. Likewise, in the case of Muhammad Afzal and
others (Supra) the controversy related to tenancy and grant of
proprietary rights which has not remotest connectivity with the
issue involved in this petition. So far as the cases of Mst.
Sughran Bibi, Bakht Zamin, Muhammad Yousaf and others,
CR No.235 of 2016/BWP.
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Mansab Ali, Muhammad Khalid and another, Aslam and
another, Raza Hussain, Ms. Benazir Bhutto and Azizur Rehman
(Supras) are concerned, in the said cases the Apex Court of the
country reversed the findings of the fora below on the ground
that Issues were not properly framed whereas in the instant case
no such deficiency has been noted by this Court, thus, said
cases also stand distinguished. Coming to the case of Alam Sher
through Legal Heirs (Supra), I have observed that the
proposition in the said case related to jurisdiction of civil court
to interfere in the order passed by the revenue authorities under
the Colonization of Government Lands (Punjab) Act, 1912
which is not the position in the case in hand.
18. For what has been noted above, I see no force in this
petition which is accordingly dismissed with no orders as to
costs.
(Shujaat Ali Khan)
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