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Civil Revision No.29 of 1983, decided on 26th November, 1984.

---O. VII, r.2--Suit for recovery of money--Respondent employee of applicants--During service some shortage of material discovered and in inquiry respondent was completely exonerated of any liability and matter closed for good--Respondent became contractor after leaving service of applicants and awarded certain contracts by applicants--Respondent executing some work in lieu of which he became entitled to payments- Applicants reopening same matter and unilaterally decided to withhold suit amount, which became due and payable for work done by respondent--Neither any decree of Court fixing such liability on respondent nor respondent admitting claim of applicants--Contrarily respondent was exonerated completely from any liability whatsoever in departmental inquiry conducted against him--Applicants, held, not justified in withholding suit amount in circumstances.

---Art. 56--Civil procedure Code (V of 1908), O.VII, r.2--Suit for recovery of money--Limitation--Respondents all the times struggling to receive amount from applicants--Final refusal for reimbursement not yet given--Period of limitation, held, not started running in circumstances.

Sharfuddin Ada for Applicants.

Wahid Bux Baloch for Respondent.

Date of hearing: 26th November, 1984.

Masood Jan respondent in this case was air employee of the applicant. During the Service some shortage of material was discovered and he was charged with the liability of misappropriation of that material. Inquiries were held but ultimately it was found that he was note responsible for this shortage. He was in this way completely exonerated of any liability by the Superintending Engineer and the matter closed for good. He left service and became Contractor. The respondent was awarded certain contracts by the applicants and it is admitted position in the case that he executed some work in lieu of which he became entitled to payments. The applicants took upon themselves to reopen the matter of old arid forgotten liability and unilaterally decided to with-hold payment of a sum of Rs.7,185 from respondent's running bills. On protest from the respondent the matter remained pending with the applicant, arid finally it became apparent that the applicants were not in a mood to make payments of this liability and were bent upon withholding it on the pretext of the liability which they themselves had determined against this man on the assumption that he was also responsible for the shortage of the material during his service. This obliged the respondent to file a suit for the recovery of Rs.7,185. The suit was tried by Senior Civil Judge, Jacobabad and it appears that neither the plaintiff nor the defendants offered any evidence. The plaintiff however, examined one Saifullah a. clerk in the office of the Executive Engineer, who it appears, produced certain documents. It is also interesting to note that this witness also was not in a position to place the full documentary picture as all the documents relating to this dispute were not traceable in the office of the petitioners. Para. 9 of the judgment of the learned Additional District Judge may be re produced:-

"From perusal of the record it transpires that neither the appellant himself had examined before the lower Court nor the respondents had examined themselves. Even though any person duly authorised, but what has been done in this regard, is that, the appellant examined one Saifullah clerk of the respondents at Exh.35, who has produced the documents pertaining to the issue between the parties from Exhs. 36 to 53. He further submitted in his deposition that the rest of the record is not available with them. With the result only these documents at Exhs. 36 to 53 are material to the just decision of the matter, as they are relied upon by the parties."

As many as 8 issues were framed by the trial. Court but as very rightly observed in both the judgments issues Nos. 9, 5 and 6 are relevant for the purpose of this case which may be reproduced as below: -

(4) Whether plaintiff has misappropriated and made irregularities during his service as store-keeper

(5) Whether during enquiry by the P.W.D. department plaintiff was found guilty of the charges of fraud and misappropriation and irregularities

(6) Whether the findings of the report have been found correct against the plaintiff and to what effect

The learned trial Court has given a very peculiar treatment to these three issues. The judgment shows complete lack of clarity in the mind of the trial Court while disposing of these issues. One thing is certain that even in this judgment of the trial Court the position of the parties seems to have remained the same that as result of the inquiry at the departmental level during the service of the respondent he was not held responsible for any shortage of the material. I may reproduce a few lines from the judgment of the trial Court:

"The Deputy Chief Engineer during the year 1970 called his explanation about the alleged misappropriation. The plaintiff sub mitted his explanation on 6-1-1971. Finally the matter was decided in favour of the plaintiff whereby the plaintiff was not only held responsible for the said misappropriation but the concerned XEN was held responsible. All these document, produced in the evidence by the plaintiff transpires that there was misappropria tion found in the record. In this way the plaintiff cannot take benefit of the decision of the Superintending Engineer that the plaintiff is not responsible. In fact the irregularities were found to the store and the material was found missing, as were checked and in audit. The Government material is either way were missing The issue is, therefore, decided in the affirmative."

In the analysis on issue No.5 the learned Judge observed as under:-

"The matter of the plaintiff went to the higher authorities departmentally whereby he was not held responsible only but the XEN concerned. The issue is, therefore, decided in the affirmative. "

In issue No.6 the findings of the learned trial Court are:

"The reply and the finding in this respect are that the plaintiff is not responsible. It was the duty of the concerned XEN to check the record of the plaintiff. Findings in this respect are conclusive on the order of the XEN Begari Division, Jacobabad. Working papers of the inquiry have been placed before the Court which are against the plaintiff initially and finally the plaintiff was presumed that he cannot be held responsible. The issue is replied. accordingly.

After recording this appraisal of the state of facts in the judgment, the learned Judge has dismissed the suit and it is not clear on what basis the learned Judge has accepted the claim of the applicant/ defendants and held against the respondent /plaintiff. Decree was challenged by the respondent before the District Judge, Jacobabad and this decree was reversed by his judgment, dated 23-9-1982. The learned Judge in para. 11 of his judgment has disposed of the controversy projected in issues Nos., 9 to 7 in the following words:-

"From perusal of the record it transpires that the burden of the issues Nos. 9 to 7 was upon the respondents to prove their contentions, but they failed to produce any document in this respect to show that the final decision was made by authority concerned against the appellant legally. In written statement it is alleged by the respondents that the appellant was served with notices before experts decision was made against him, but respondents have failed to produce those show-cause notices for perusal of the Court, and their own clerk has submitted that only documents at Exhs. 36 to 53-and were available on the record rest of the record, lie deposed before this Court that they .are not traceable. With the result I am clear in my mind that, in absence of any show cause notice their expert decision cannot be said to be legal."

The final position that emerges out of this dispute is that a sum of Rs.7,185 the subject-matter of the suit which became due and payable for the work done by the respondent is being withheld by the applicants. Neither there is decree of any Court fixing this liability on the respondent nor is there any admission of the respondent accepting the claim of the applicants. Indeed there are findings of the Superintending Engineer to the contrary exonerating completely the respondent from tiny liability whatsoever in the departmental inquiry which was conducted against the respondent in this case tit the early stages. As such the applicants had to justify the withholding of this admitted amount of the running bill which they have filed to do. Mr. Sharfuddin Ada learned counsel for the applicants argues that the claim of the plaintiff was time-barred. I ace no such plea raised in the pleadings nor indeed any issue was framed about it. Intimation is a mixed question of law and fact. If this issue was raised perhaps there would have been an answer to this. Turning to the plaint I can read in para. 5. "That the cause of action for filing this suit accrued to the plaintiff about a month back when he learnt that the amount of deposit deducted from the bills of the plaintiff amounting to Rs.7,185 has been credited to Government by the defendant within jurisdiction of this Honourable Court". It appears that the threat for deduction of this amount was posed some time earlier but no final decision was taken. The averments in para.8 of the written statement would clearly show that every thing remained in the melting pot and no final decision for deduction of this amount was taken. The following passage from the written statement may be relevant:- .

"The above amount of Rs.7,185 has been recovered from the plaintiff (Mr. Masood Jan) from his 20th running contract bill in Begari Sind Feeder Division Kashmore and kept to deposit. The plaintiff has put on an application, dated 26-10-1975 addressed to defendant No.2 Chief Engineer Irrigation G.B.Sukkur and copy endorsed to defendants Nos. 3 and 4 the S.F. B.S.F. Circle Sukkur anti Begari Division Jacobbabad for releasing the withholding amount of Rs.7,185 recovered from the plaintiff and kept in deposit. The plaintiff was directed by defendant No.4 Executive Engineer Begari Division under his. letter No.SEP/G-148/5940, dated 24-11-1975; 92, dated 7-1-1976 and 690, dated 1-3-1976 to attend the office and bring original charge papers and receipts of persons to whom material was issued in connection with settlement of D.P. 43 and 44 and special Audit report. It was clearly mentioned that in case of failure the ex parte decision will be made and no other excuse will be heard hereafter. But the plaintiff neither produced any authentic record nor attended the office of defendant No.4. Hence amount of Rs.7,185 recovered from the plaintiff stands good."

It would be evident from the above that the applicants had issued notices to the respondent that they were making some: inquiry against the respondent and the money was lying in deposit. What turn this inquiry took at latter stages is not clear. But suffice it to say that the respondent /plaintiff was all the time struggling to receive this amount from the applicant and unless it is shown that tie was given a final refusal for reimbursement of his dues earned by him under a contract, the period of limitation should not start running. All these circumstances have been taken into consideration by the learned Second Additional District Judge, in his judgment and I see no illegality or irregularity in the judgment. This revision is, therefore, dismissed with costs.

M. A. K. Petition dismissed.

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