IN THE HIGH COURT OF SINDH, KARACHI

IN THE HIGH COURT OF SINDH, KARACHI

Suit No. 226 of 1998

Present: Mr. Justice KhadimHussainTunio

Date of hearing: 11.01.2017.

Date of decision: 17.02.2017

Plaintiff: Daim Khan through Mr. Tanveer Ahmed Advocate.

Defendant: M/s Karachi Water & Sewerage Board through Mr. Muhammad Iqbal Advocate.

JUDGMENT

KHADIM HUSSAIN TUNIO, J.-The plaintiff has filed present suit for Recovery of Rs.86,000,078/-. The case of the Plaintiff, as set out in the plaint, is that the plaintiff is an approved contractor with the defendant since last 25 years and performing the jobs assigned to him to the satisfaction of the defendant. All the jobs assigned to the plaintiff are recorded in the account books of the defendant. Beside, others the defendant, assigned the following jobs to the plaintiff which were completed in time very successfully by the plaintiff.

(i) Issued work order in favour of plaintiff bearing No.EE/WD/DIV/LY/111/96 dated 23.05.1996, for P/L removal of contamination in 4” dia & 6”dia AC.w/1 at Hassan Ali Mir Muhammad Road Nowa Lane Gali No. 1,2,3 Faqir Muhammad Dura Khan Road DhanjiCompond Noor Mohammad Village Gali No. 4, 5 Mehrabad Gali No, 5, 6 for improvement of water supply for which Tender was issued in favour of plaintiff and spot quotation under para 58 of the CPWD was arranged and estimated cost was a sum of Rs.4,33,623.00 and on 120% above the cost was allowed, therefore on completion of job the amount payable to the plaintiff by the defendant was a sum of Rs.9,53,971.00.

(ii) Issued Work order in favour of plaintiff bearing No. EE/WD/DIV/LY/112/96 dated 23.05.1996, for P/L and removal of contamination in 4” dia& 6”dia AC.w/1 at Lasi Mohallah Gali No, 2, 4, 5, Mullah Allah Dad Lane Gali No.2, Kalakot Juma Para N .K .Wara Salah Mohammad Mir RahiTalib compound Dhobi Ghat Gali No. 4, 7, 8 and 9 and for which Tender was issued in favour of plaintiff and spot quotation under para 58 of the CPWD code was arranged and estimated cost was a sum of Rs.4,36,937.00 on 120% above the cost was allowed, therefore the amount payable by the defendant to the plaintiff was a sum of Rs.9,61,261.00 on completion of job.

(iii) Issued Work order in favour of plaintiff bearing No. EE/WD/DIV/LY/113/96 dated 23.05.1996, for P/L and removal of contamination in 4” dia AC.w/1 at Nawa lane at Gali No. 4 to 18 Usmanabad and different areas for which Tender was issued in favour of plaintiff and spot quotation under para 58 of the CPWD was arranged and estimated cost for the said job was a sum of Rs.5,23,883.00 and 120% above the cost was allowed, therefore the amount was payable to the plaintiff by the defendant was a sum of Rs.11,52,543.00 on completion of job.

(iv) Job done as P/L 48” dia RCC trunk sever for rectification of sunk down line opposite lucky star hotel Chakiwara road Lyari by the plaintiff from proposed B.G.No.8144-29 vide para 58 of the CPWD in the year 1994 and payable due acknowledged by the defendants Department on Accounts Officer comments and received by the Managing Director on 4-2-96 vide inward No. 5354/96 as such a sum of Rs.1,37,303.00 was payable by the Defendant to the plaintiff.

(v) Job completed as P/L 15” and 8” dia 12” Soft water line at Khajor Road Noor Mohammad Village Lyari with relevant branch. The estimated cost was Rs.15,50,000.00 and allowed job at 2505 above of the amount, as such on completion of job the Defendant was liable to pay a sum of Rs.54,25,000/- to the Plaintiff. Inspection Report for the above jobs was carried out and was received by the Chairman’s office of the Defendant vide Diary No. 354/F dated 17-10-96.

2. It is also case of the plaintiff that after completion of said jobs, he became entitled to receive a sum of Rs.86,30,078.00 and Inspection Report was carried out by the Defendant’s higher authorities and upon request, copy of report of site inspection was provided to the plaintiff who confirmed the completion of jobs. Though the Managing Director of the Defendant sent a report to the higher authority in which it was mentioned that payment to the plaintiff has been made, but the fact is that no any payment was made to the plaintiff for the said jobs. Despite repeated requests made by the plaintiff, the Defendant failed to pay a sum of Rs.86,30,078.00, therefore, the plaintiff sent a legal notice to the Defendant on 16.12.1997. Defendant failed to reply said legal notice and truly indebted the plaintiff in the sum of Rs.86, 30,078.00, therefore, plaintiff has no option except to invoke the jurisdiction of this Court and filed a suit and prayed as under:

It is therefore, prayed that this Honorable Court may please to pass the judgment and decree in favor of the plaintiff against the defendant in the sum of Rs.86,30,078.00 (Rupees Eighty Six lac, Thirty Thousand and Seventy Eight only), with 18% interest from the date of suit till realization of decrital amount with the cost of the suit and also grant any other relief(s), this Honorable Court deem fit and proper under the circumstances of the case.

3. After service of notices, the defendant caused appearance and filed written statement while pleading that the work order bearing No.EE/WD/DIV/LY/111/96 dated 23.05.1996 was issued in favour of the plaintiff, but the said work could not be started or executed due to non-availability of budget allocation during the financial year 1995-96 and after calling of Tender under para-58 CPWD code the case was prepared and put up to the Competent Authority for arrangement of funds in the first to meet the expenditure, but the funds were not provided by the concerned Authority as such the works could not be executed by the plaintiff. The work pertaining to Liyari Division (WD) even has not been executed due to non-availability of appropriate funds during the financial year 1995-96, so the question of completion of these jobs did not arise. The claim of the plaintiff is false, incorrect and concocted as such categorically denied in toto. Legal notice was not received. No cause of action accrued to the plaintiff because, work was not even started by the plaintiff as such suit is liable to be dismissed. Apart from the factual pleas, the defendant raised legal plea that the suit is not maintainable according to law.

4. Out of the pleadings of the parties, the following Issues were framed on 14.12.1998.

1) Whether Defendant issued work order in favour of plaintiff as mentioned in the Plaint? If so, its effect?

2) Whether the Plaintiff completed all the jobs assigned by the Defendant in accordance to the work orders? If so, its effect?

3) Whether a sum of Rs.86,30,078.00 is outstanding against the Defendant? If so, its effect?

4) What should the decree be?

5. The Plaintiff has examined himself at Ex. A/1. He produced affidavit in evidence at Ex.P/1, photocopy of note sheet dated 15-5-1995 at Ex.P/2, photocopy of work order No.111/96 dated 13.5.1996 of Executive Engineer, Division Lyari, KW&SB at Ex.P/3, Photostat copy of spot quotation dated 23.5.1996 at Ex.P/4, photocopy of terms and conditions of Contract at Ex.P/5, photocopy of deposit challan dated 29.5.1996 at Ex.P/6, photocopy of history sheet of work along with estimates at Ex.P/7, photocopy of map showing the work of KW&SB at Ex.P/8, photocopy of work order No.112/96 dated 23.5.1996 at Ex.P/9, photocopy of spot Quotation dated 23.5.1996 at Ex.P/10, photocopy of terms and conditions of contract at Ex.P/11, photocopy of challan dated 20.05.1996 at Ex.P/12, photocopy of history sheet of work along with estimate (4 pages) at Ex.P/13, photocopy of map at Ex.P/14, photocopy of request of Chairman of Panchayet Committee dated 12.09.1995 at Ex.P/15, photocopy of work order No.113/96 dated 23.5.1996 at Ex/P/16, photocopy of spot quotation No.14/96 dated 23.5.1996 (2 pages), at Ex.P/17, photo copy of terms and conditions of contract at Ex.P/18, photocopy of challan dated 20.05.1996 at Ex.P/19, Photostat copy of history sheet of work along with estimate (4 pages) at Ex.P/20, photocopy of map at Ex.P/21, photocopy of note sheet dated 31.01.1996 moved by KW&SB officials to accord approval of payment 48”, sewer at Ex.P/22, photocopy of Inspection Team’s Report at Ex.P/23, photocopy of MD’s letter dated 28.04.1997 at Ex.P/24, photocopy of legal note dated 16.12.1997 at Ex.P/25, photocopy of letter from the Executive Engineer (SEW) Div.II, KW&SB to M/s Amir Khail Builders dated 13.5.1996 at Ex.P/26, photocopy of letter of Amir Khail Builders to the Executive Engineer KW&SB dated 05.06.1996 and receipt obtained thereof for (Sewerage) Work at Ex.P/26-A, (Note incorrectly written as Ex-26) photocopy of letter of Amir Khail Builders to Executive Engineer Lyari, KW&SB requesting for completion Certificate dated 05.06.1996 (for sewerage work) at Ex.P/27, photocopy of letter of the Executive Engineer (SEW) Div. II, KW&SB Lyari dated 05.06.1996 addressed to M/s. Amir Khail Builders at Ex.P/28, photocopy of history sheet of Sewerage work 15”, 12”, 8” along with estimate (3 pages) at Ex.P/29, photocopy of Amir Khail requesting for issuance of completion certificate in which EE/AE have authenticated the execution of work at Ex.P/30 and photocopy of map at Ex.P/31.

6. Plaintiff also examined PW-2 Ghulam Mustafa Assistant Executive Engineer, KW&SB, P.W-2, at Ex.P/32, P.W-3 Masroor Ali Khan Staff Engineer, South Circle, Water Distribution, KW&SB Karachi at Ex.33 and closed his side.

7. On the other hand, the defendant, on his turn, examined DW-1 Muhammad Shahid at Ex. D/1, who produced the photocopy of the office order dated 06.08.1996 at Ex. D/2, photocopy of handing over and taking over by Ghulam Mustafa at Ex.D/3. Defendant also examined DW-3 Rana Mohammad Rashid at Ex.D/8.

8. The learned counsel for the plaintiff argued that the Defendants have not denied the facts stated in the plaint specifically which otherwise was to be pleaded specifically within meaning of Order VIII Rule 5 CPC else the impact thereof would be that of an admission. He has relied upon the case law reported in 1996 CLC 79 and 2001 CLC 942. He has further submitted that the Defendants have not raised any plea specifically in the written statement that the suit is not maintainable or that the transaction is either void or voidable on any point of law. He has also argued that all such grounds of defense if not raised, in the pleadings hence are likely to take opposite party by surprise or because issues of fact, not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts, if not raised in pleadings, cannot be allowed to take at a subsequent stage.

9. Learned counsel for the Defendants argued that plaint is not verified before the Oath Commissioner on Oath as required under Order VI Rule 15 CPC nor the plaintiff has stated that what paragraphs of the plaint are true and correct to his knowledge and belief. He also argued that Resolution of the Board of Directors of the Company has not been filed. He further argued that the contracts granted to the plaintiff were not completed due to non-availability of appropriate budget allocation during the financial year 1995-96, therefore, there was no question for payment of any bill, without execution of the work. For other work orders, the Defendants stated that work could not start for the reason that the work orders were not issued, therefore, the suit of the plaintiff should fail.

10. I have heard the learned counsel for the parties and have gone through the evidence and material produced on record with their assistance. My findings on the above issues are as under:

ISSUE NO.1 Affirmative

ISSUE NO.2 Affirmative

ISSUE NO.3 As discussed

ISSUE NO.4 Suit of the plaintiff is decreed and

interest @ rate of 6% per annum

from date of filing of suit.

ISSUE NO.1

‘Whether Defendant issued work order in favour of plaintiff as mentioned in the Plaint? If so, its effect?’

11. The initial burden of the above issue was upon the plaintiff as it was claim of the plaintiff that work orders were issued to him by defendants (department) however since the defendants did not deny issuance of Work order NO.EE/DIV/LY/III/96 dated 23.5.1996 therefore, claim of the plaintiff to such an extent needs not discussed anymore because what is admitted in pleadings shall earn status of an ‘admission’. Reference in this regard can well be made to the case of Muhammad Iqbal v. MehboobAlam(2015 SCMR 21) wherein it is held as:

“3. ….It is a settled principle of law that a fact admitted needs no proof, especially when such admission has been made in the written statement (see PLD 1975 SC 242)..

12. Thus, issue to extent of issuance of ‘work order for said work’, being admitted, needs no further discussion. However, since the defendants have denied rest of the claims (work orders) therefore, it would be seen what the plaintiff has produced to substantiate his claims. Before examining material, brought on record, I feel it in all fairness to examine the plea of the plaintiff that since there had been no specific denial add here that it was specific claim of the plaintiff that work order (s), including the admitted one, were all issued by the defendants. The plaintiff has also attached / produced the copies of all such documents with his pleadings (plaint) within meaning and object of provision of Order VII rule 14(1) of the Code which reads as:

“14.-(1) Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint.’

13. The purpose of the said proviso appears to be nothing but to provide an opportunity to the defendant to have complete notice and knowledge of the documents on which plaintiff basis his claim so that he (defendant) should make a specific denial and could challenge legality of the claim and documents, so produced by the plaintiff with plaint. Reference to the case of Muhammad Arif v. Karachi Port Trust (2009 MLD 686) wherein it is held as:

“It is settled principle of law that the documents, which may be filed by the plaintiff with the plaint of the suit, are to be presumed to be correct so far its contents are concerned, until and unless satisfactory material comes on the record to record satisfactory findings, that too in a very clear term, that one or more documents so attached with the plaint of the suit are not to be acted upon or not to be given any importance.’

14. Thus, it is pertinent to mention that failure of the defendants to specifically deny assertions, claims and legality of documents, so produced by the plaintiff, will result in adverse consequence against the defendant. This was so because of which the provision of Order VIII rule 5 of Code has been shaped as:

“5. Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.”

15. From bare reading of the above proviso makes it clear that it has penal consequences i.e‘non-specific denial shall be taken as ‘admission’. Thus, now it can safely be concluded that the defendant, having been put on notice of the claim and document (s) of plaintiff, should come with specific denial thereto else it may result into taking non-denial as an ‘admission’.

16. In the instant matter, the Defendants have not denied the execution/ issuance of said work orders from their office in their written statement specifically though as already discussed that documents (work-orders) were not only referred in pleadings (plaint) but were also produced with plaint therefore, subsequent plea at the time of recording of evidence thereby disputing these documents as ‘manipulated’ which however would not be considered as a ‘denial or a claim’ , set-out through pleadings (written statement). Needless to add that it is the pleadings of parties which determines framing of issues but also put parties onto notice as to what they (parties) are to prove & disprove but by remaining within four-corners of their pleadings. Reference may be made to the case of Sardar Muhammad Naseem Khan v. Returning Officer &Ors2015 SCMR 1698 wherein it is held that:

3…..The importance of the pleadings and its legal value and significance can be evaluated and gauged from the fact that it is primarily on the basis thereupon that the issues are framed; though the pleadings by themselves are not the evidence of the case, the parties to a litigation have to lead the evidence strictly in line and in consonance thereof to prove their respective pleas. In other words, a party is bound by the averments made in its pleadings and is also precluded from leading evidence except precisely in terms thereof. A party cannot travel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a party, which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration. Thus, it is clear that if any party to a lis wants to prove or disprove a case and some material has to be brought on the record as part of the evidence, which (evidence) otherwise is not covered by the pleadings.

17. In another case of Muhammad Iqbal v. MehboobAlam2015 SCMR 21 wherein it is held that :

‘…., and it is also settled that no litigant can be allowed to build and prove his case beyond the scope of his pleadings. Therefore, only plea that remained to be determined; as set out by the appellant in his defence (written statement) was if the time was the essence of the contract or not. But neither from the contents of the agreement nor from the intent and conduct of the parties and / or from any evidence led by the appellant it has been established to be so. In relation to contracts of immovable property the rule is that time ordinarily is not the essence, however, this by no means is an absolute rule and it is always open to the party, who claims exception thereto, to establish otherwise form the contents/ text, letter and spirit of the agreement and / or from the intent and conduct of the parties, as well as the attending circumstances. The appellant / defendant has failed to do so in the instant case.

18. However, since I am fully conscious of the fact that if things otherwise appear to be disputed then it is always better and safe to satisfy conscious before recording judgment. Reference can well be made to the case of C.N.Ramappa Godwa v. C.C. Chandergowda & Ors. 2013 SCMR 137 (Supreme Court of India) wherein it is held as:

‘As pointed out earlier, the court has not to act blindly upon the admission of a fact made by the defendant in his written statement nor should the court proceed to pass judgment blindly merely because a written statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, specially where a written statement has not been filed the court should be a little cautious in proceeding under Order VIII, Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of the court’s satisfaction and therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the court can conveniently pass a judgment against the defendant who has not filed the written statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression“ the court may, in its discretion, require any such fact to be proved’ used in sub-rule (2) of Rule 5 of Order 8,or the expression “may make such order in relation to the suit as it thinks fit’ used in Rule 10 of Order VII”

19. Be as it may be, the perusal of the record would show that the plaintiff testified in his affidavit in evidence and reiterated the same contentions, as contended in para No. 3 of the plaint and affidavit in evidence. The P.Ws also deposed on the same line as deposed by the plaintiff on this issue. Plaintiff produced three work orders along with plaint and his affidavit in evidence at Ex.P-1 which documents were claimed as official document (s). Not only this, but to strengthen oral as well as documentary evidence to the effect of issuance of all five work orders in his favour, plaintiff also examined two official witnesses i.e P.Ws Ghulam Mustafa and Masroor Ali Khan, who were officials and were posted at relevant time. Needless to add that since these documents were claimed as official (public) documents hence production thereof couple with evidence of official witnesses in support thereof were enough to discharge initial burden because such documents do fall within meaning of Article 85(4) of Qanun-e-Shahadat Order, 1984 and since these documents were alleged by defendants as manipulated (though at subsequent stage) hence the burden to prove the same as ‘manipulated’ was upon them. Reference in this regard may be made to the case of Khan Muhamamd v. Muhammad Din 2010 SCMR 1351 wherei it is held as:

“It is well settled principle of law that initial burden to prove execution of documents is on party which is relying on documents. Once this onus is discharged, burden to prove factum of fraud or undue influence or genuineness of documents shifts to party which alleges fraud.”

20. I would add that since presumption of truth is normally attached to public / official documents / records hence criterion to discharge initial burden regarding an official document (document falling within meaning of Article 85 of Order) by a private person would stand discharged by production of original or certified copy thereof because normally he (private person) is not direct custodian of such public / official document / record particularly when the lisis against the department (custodian of such document /record). The defendants (department) though claimed the documents to be manipulated but did not produce the relevant record (out-ward register etc) which could have helped the defendants (department) to establish / prove the documents to be not issued by it (department). The record shows that the DW even has not fully supported the version of the defendants to the effect of fraud rather seems to have shouldered the case of the plaintiffs. The DW Assudomal Superintending Engineer, South Sewerage KB & SB, testified during his cross-examination that upto March 1996, he was posted as Superintending Engineering Water Wing. After March he became an officiating Chief Engineer Water Distribution. He was confronted with Ex.P/2 photocopy of note sheet dated 15.05.19995 and said that it was prepared by XEN Lyari. Voluntarily said that Mr. Moin Ahmed, was the Executive Engineer at that time and not Mr. Ghulam Mustafa. He identified the signature of the Managing Director Brig. Mansoor Ahmed, who had asked for report. No inquiry was conducted against the XEN, who has prepared Ex.P/2 because report was not submitted before the higher authorities. He was also confronted with Ex.P/26 and testified that it was not issued by their office but bears the seal of their office. He could not say whether Ex. P/3 bears the signature of the higher officers of the Department as he did not recognize their signatures, but identified the signature of Brig. Mansoor and signatures of Badar Siddiqui, DMG. He further stated that the documents bear the seal of Karachi Board and Sewerage. He also conducted the inspection of the site along with staff. He conducted inspection in the month of January 2000 and he was in-charge as such did not require any permission from officers. The plaintiff was not called at the time of inspection at site. In January 2001 he was posted as Superintending Engineer South Sewerage. He did not prepare inspection report. Further the defendants examined DW Muhammad Shahid, Ex. D/1, Asoodo Mal Ex. DW/5 and Rana Muhammad Rashid Ex. D/3 D/8 respectively in support of their case, but they have not been authorized by the competent authority to give evidence nor they have produced any document along with their written statement or through application under Order 13 Rule 2 CPC , thought they have produced photo copy of letter dated 09.01.2001 at Ex. D/4, documents at the time of recording of their evidence on which plaintiff raised objection. Even otherwise, mere subsequent denial without substantial proof to disprove the initially un-denied document or fact would not be sufficient to be taken as proof of document to be ‘manipulated’. Therefore, the same cannot be considered and there is substance in the objection raised by the plaintiff. The defendants’ witnesses have not given evidence in clear terms to deny or admit the claim of the plaintiff’, they have given self-contradictory evidence by which they damaged their own case. The Issue No.1 is therefore decided in the affirmative.

ISSUE NO.2.

“Whether the Plaintiff completed all the jobs assigned by the Defendant in accordance to the work orders? If so, its effect?’

21. So far this issue is concerned, plaintiff has to prove this issue. Plaintiff examined himself and P.W 2 Ghulam Mustafa Ex. P/32 and PW-3 Ex.P/33 Masroor Ali Khan and produced work order, spot quotation, terms & conditions, deposit challan, history sheet, measurement and map in respect of work orders No 111/96,112/96 and 113/1996 dated 23.05.1996, Note sheet of job work number 04 & inspection report recommended for payment as and when MB measurement book is recorded, signed and finally checked by the inspection team further plaintiff has not produced the work order regarding job number 04 & 05. So also letter produced as Ex. P/27 in respect of job No. 5 issued by Executive Engineer that the work has been satisfactory plaintiff also produced history sheet as Ex. P/29 duly signed by Assistant Engineer and Executive Engineer the note only this plaintiff has produced only Note sheet in respect of job No. P/26. They have been cross examined but nothing has been gained during their cross examination, which to discredit their version. The plaintiff produced work orders, tenders copy, bank challans, note sheets in support of his case as well as work orders. The series of the documents, if viewed with reference to answer to issue no.1, it appears that the plaintiff successfully discharged the burden because series, showing issuance of work order till recording of work done in MB (Measurement Book), are sufficient to establish the work done by the plaintiff with reference to work-order. On the other hand , the Defendants have not examined any officer in support of their plea that only one work order was issued and work of the said contract has not been completed by the plaintiff for want of funds. The defendants have failed to produce the copy of correspondence if any made by them with higher authorities through which they requested for allocation of funds. Even in respect of one work No. 111 dated 23.05.1996, the defendants witness also admitted that he has inspected the site in the absence of the plaintiff and he did not prepare the inspection report nor submitted it to the authorities. According to the plaintiff the work was completed in 1996, but defendants’ version is that inspection was carried out in 2000. The inspection is itself an admission to the fact that not only work-order was issued but it (work) was initiated else there arises no question of inspection. It also needs not be mentioned here that ‘normally one would not like to make any admission against his own interest unless the same is true. Reference in this regard can well be made to the case of Muhammad Yaqoob through L.Rs v. Feroze Khan &Ors2003 SCMR 41 wherein it is held as:

“We are not persuaded to agree with Chaudhry Muhammad Tarique , learned Advocate Supreme Court that admission of Muhammad Yaqoob be treated as an innocent admission as it would be a new phenomenon having no legal foundation at all as no one would like to make any admission against his own interest unless the same was true.In this regard reference can also be made to Article 31 of the Qanun-e-Shahadat Order, 1984 and thus the principle that no one would make any admission against his own interest has rightly been taken into consideration by the learned forums below.

22. The plaintiff and his witnesses more particularly P.W Ghulam Mustafa Masroor Ali Khan have deposed that the inspection has been carried out on 05.10.1996. The report was submitted to Chairman KW&SB and same bear signatures of KhudaBuxSamtio Member, Amjad Habib Member, AqeelurRehman Secretary/ Member, Abdul Rauf Member, Wasim Shaikh Member, Mohan Lal Member, Imtiaz Ahmed Kazi Convener and MD KW&SB. There is nothing in rebuttal from the defendants side in the evidence adduced by the plaintiff on this issue except evasive denial as well as the pleas which were not taken specifically in written statement, therefore, same cannot be agitated. It may not be out of place to state here that if the work orders were not issued and claim of the plaintiff was false and he got manipulated forged and fabricated documents in collusion with the officials of the Defendant, than as to the Defendants did not initiate any criminal as well as civil proceedings against the plaintiff as well as the said responsible officials/incumbents and why they remained mum up till now. Further, needless to add that official works / acts are done through written correspondence (public / official documents) therefore, presumption of truthfulness or otherwise shall be attached thereto and not mere words of denial because law is settled by now that inferior evidence to be excluded in present of superior evidence. Reference may be made to the case of ElahiBakhsh v. Muhammad Iqbal 2014 SCMR 1217 wherein it is held as:

“7. …The question that arises for the adjudication of this Court is whether an oral statement of a party to an instrument which varies or tends to vary its terms could be admitted into evidence? The answer to this question is a plumb no because Article 103 of Qanun-e-Shahadat Order 10 of 1984 excludes oral statement as between the parties to any such instrument or their representatives. The rational behind this Article is that inferior evidence is excluded in the presence of superior evidence;….

23. The defendants (official departments) cannot avoid their liabilities i.e to clear-up the dues only by blowing hot and cold in a single breath but such liabilities could only be escaped if it (department) first establishes thatthere was no contract or if there has been a contract it was not completed or breached by rival. The defendants prima facie have failed to disprove their stand as they have not brought any sufficient evidence on record that the work in question were not completed within the stipulated period of 15 days or that it was never assigned and carried out by the plaintiff, as claimed. Therefore, Issue No.2 is answered in Affirmative.

ISSUE NO.3.

“Whether a sum of Rs.86,30,078.00 is outstanding against the Defendant? If so, its effect?’

24. Since it has been held under findings recorded in the foregoing issues No. 1 and 2 that the Defendants issued work orders as averred in the plaint and said works were completed by the plaintiff within stipulated period and the evidence adduced by the plaintiff has not been shattered by the Defendants side through any reliable evidence, therefore, it has been proved by the plaintiff that an amount of Rs.86, 30,078.88 is outstanding against the Defendants. The issue is answered accordingly.

ISSUE NO.4.

25. In view of the foregoing, findings recorded under Issues Nos. 1, 2 and 3: suit of the plaintiff is decreed with costs and interest at the rate of 6% per annum from the date of filing of the suit.

JUDGE

Dated: 17^th February 2017