To do:

Explain the case facts and conclusion/judgement;

Explain the application of section 25(3) of Contract Act in this case

(Advice: study Art 56 & 115 of the Limitation Act, 1908).

Judgment Sheet

IN THE LAHORE HIGH COURT AT LAHORE

JUDICIAL DEPARTMENT

Regular Second Appeal No.179 of 2005

(Shama Enterprises Vs. City District Govt. etc.)

JUDGMENT

Date of hearing19.6.2013

Appellant representedRana Farman Ali Sabir, Advocate by:

Respondents represented Mr.Iftikhar Ahmed Mian and Mr.Imran by:Ahmed Bhatti, Advocates. Jamshed Buzdar, Town Officer

ABDUS SATTAR ASGHAR J:- This Regular Second Appeal under Section 100 of Code of Civil Procedure 1908 is directed against the Judgment and Decree dated 10.10.2005 passed by learned Additional District Judge Lahore.

2.Succinctly the facts leading to this appeal are that appellant filed a suit for recovery of Rs.643156/- against the respondents for the balance payment of work done by the appellant pertaining to the work order/contract No.811 and 812 for the construction in the area of Union Council Doolu Khurd and Youhanabad. The respondents while contesting the suit through written statement contended that appellant did not complete the construction work within stipulated period as per their satisfaction and that on checking the work done was found in complete and unsatisfactory, however they admitted return of the securities to the appellant. Respondents also contended that appellant's earlier writ petition No.1060 of 1995 has been dismissed by this Court vide order dated 29.9.1996. Parties led their pro and contra evidence in support of their respective pleas. The learned trial Court after concluding the trial decreed the appellant's suit vide Judgment and Decree dated 28.5.2004. Respondents being dis-satisfied preferred an appeal which

was accepted by the learned Additional District Judge Lahore vide impugned Judgment and Decree dated 10.10.2005 while reversing the findings of learned trial Court on issue No.2 and dismissed the appellant's suit while observing that it was barred by limitation as envisaged under Article 56 of the Limitation Act 1908..

3.It is argued by learned counsel for the appellant that learned first Appellate Court fell in grave error while reversing the Judgment and Decree passed by learned trial Court and dismissing the appellant's suit as barred by limitation; that appellant's securities pertaining to the contract were returned by the respondents on 13.2.1994 and 01.3.1994 respectively; that respondents in their report (Exh.P1) prepared for submitting the comments before this Court in his earlier writ petition No.1060 of 1995 admitted that final payment of a sum of Rs.643156/- according to the bill submitted by the contractor/appellant was due and that the contractor has been asked to associate the concerned Sub-Engineer for inspection of the work done so that balance payment be made and that on submission of the report of the work done by the contractor to the office, payment of the work done will be made to the contractor. He added that return of the securities manifest that work done by the appellant was satisfactory and report (Exh.P1) constitutes a clear 'promise' to make the payment of the balance amount rendering the appellant's case within ambit of Section 25(3) of the Contract Act 1872 therefore limitation in this case shall commence from the date of breach of promise and not from the date of work done in terms of Article 56 of the Limitation Act 1908; that the suit lodged by the appellant on 27.1.1997 was within the period of limitation of three years in terms of Article 115 of the Limitation Act 1908; that the learned Appellate Court was in legal error while accepting the respondents' appeal and dismissing the appellant's suit through impugned Judgment and Decree dated 10.10.2005.

4.It is resisted by respondents with the arguments that Article 56 of the Limitation Act prescribes three years limitation for

the price of work done by the appellant for the respondents to be commenced from the date when the work was done; that in this case the work was done on 03.7.1990 therefore suit lodged by the appellant on 27.1.1997 was barred by limitation; that the learned Appellate Court appreciating the relevant provisions of law and facts rightly accepted their appeal; that there is no jurisdictional error, factual or legal infirmity or perversity in the impugned Judgment and Decree passed by learned Appellate Court; that appellant has no case to seek interference in the lawful findings of the learned Appellate Court. Takes reliance upon Central Government through Secretary Ministry of Defence, Government of Pakistan, Islamabad and 3 others Vs. M/s. S.K. company, Mianwali City through its partner and another (PLJ 2002 Lahore 1441).

5.Arguments heard. Record perused.

6.At the outset it may be expedient to reproduce the provisions of Article 56 and 115 of the Limitation Act 1908 which read below:-

2 3 56. For the price of Three When the work is work done by the years done. plaintiff for the defendant at his request, where no time has been fixed for payment 115. For compensation Three When the contract is for the breach of years broken, or (where any contract, there are successive express or implied, breaches) when the not in writing breach in respect of registered and not which the suit is herein specially instituted occurs, or provided for. (where the breach is continuing when it ceases