E. N. Misra, J. - (1.) :-
(2.) THIS first appeal is directed against the judgment and decree dated 19-12-1968 passed by the Civil Judge, Mohanlal ganj, Lucknow, in Regular Suit No. 126 of 1966. Briefly stated, the facts of the case are as follows ;- Amar Nath Bhargava the plaintiff filed a suit for recovery of Rs. 23,500/ with pendentelite and future interest against the defendant-appellant with the allegations that he was given a contract by defendant No. 2, the Superintending Engineer, 6-Circle Irrigation Works, Lucknow on 5th August, 1957 for the construction of the bridge on river Loni near village Hasnapur, Tehsil Mohanlal ganj, District Lucknow. This work was to be completed by 31-3-58 and in pursuance of the said contract the plaintiff started work and various foundation wells' were sunk in December, 1957 and January, 1958 but further progress could not be made and was considerably delayed due to the apathy of the departmental officers who did not carry out the required testing, despite repeated request till February, 1958. The departmental engineers conducted testing of the wells in February, 1958 and asked the plaintiff to sink two pier wells further by 7 feet each, which work was in addition to the work stipulated in the contract. However, the plaintiff on being asked to do that work, completed it within a fortnight of the instructions issued in that behalf. Since for the aforesaid reasons the work could not be completed within the stipulated period of the contract, for which the fault lay on the department, and, as such, the plaintiff applied for extension of time upto 15th June, 1958 which was granted. In spite of extension of time further progress in the work could not possibly be made because the departmental engineers failed to give the required instructions for the plugging and sealing of the wells The last pier well was allowed to be sealed as late as 20th April, 1956 despite plaintiff's request. In these circumstances it almost became an impossibility to complete the work by 15th June, 1958. The plaintiff, however, made all efforts and after plugging the wells the massonary work of the pier was completed by the plaintiff as quickly as by 4th May, 1958 and immediately, he also prepared the centring and shuttering of the bearing slab and requested the department to supply to him the requisite bearing plates, for which the department had already placed orders with some Firm, but in spite of repeated request, the bearing plates were not supplied to the plaintiff and so the further progress in the work was held- up. The plaintiff, in these circumstances, again applied on 7th May, 1958 for further extension of time upto 28th February, 1959. No reply to it was, however, received from the defendants, and, as such, a reminder was sent on 13th June, 1958 in addition to personal approaches made by him to the concerned authorities but they remained indifferent. The plaintiff was, therefore, compelled to give final reminder on 23-7-1958 as he could not remain in suspense to maintain labour and establishment indifinitely. To the utter surprise of the plaintiff defendant No. 4 Sri Radhey Shyam, who was then Superintending Engineer, served a notice dated 4th November, 1958 through the Executive Engineer (defendant No. 3) rescinding the contract and imposing a penalty of 10% over the estimated costs of the work. The plaintiff, further averred in paragraph 12 of the plaint that he had applied for extension of time upto 28th February, 1959 and was ready to complete the work on the contractual rates by that time if the extension was granted after the contract was rescinded it was given to another Contractor on higher rates and extra time of six months was also granted to him. The plaintiff thus averred that the rescinding of his contract was not bonafide. The plaintiff claimed that after accounting of the running payment made to him from time to time during the course of work a balance of Rs. 16,000/- is still due to him which he claimed along with the interest by way of damages at the rate of Rs. 6% due to him upto the date of the filing of the suit. The plaintiff thus claims Rs. 16,000/- plus Rs. 7500, - as interest-total being Rs. 23,500/-. The plaintiff has averred in the plaint that he has made several representations to the Chief Engineer and to the Superintending Engineer besides personal interview in the matter granted by the Chief Engineer, which will be referred to hereinafter. Since the State Government rejected the claim of the plaintiff which was intimated to the plaintiff by the letter dated 1-10-1963 (Annexure 3), and, as such, the plaintiff had no alternative but to file the present suit for recovery of the aforesaid amount after serving notices dated 26th July, 1965 under Section 80, Code of Civil Procedure. This suit was presented on 20th September, 1966 and on removal of the defects pointed put by the Munsarim of the Court, the suit was ordered to be registered on 24th September, 1966. Defendants 1 to 3 contested the suit by filing the written statement. The defendants refuted the allegations in respect of the recession of contract to be not bona- fide. It was also alleged that the plaintiff did not make his application to the Superintending Engineer for extension of time and defendant No. 4 was, therefore, fully competent to rescind the contract. It was further pleaded that the suit was barred by limitation and the alleged acknowledge meat mentioned in para 24 did not amount to acknowledgement of the liability and could not have the effect of extending time for filing the present suit. It was further pleaded that the department had given full co-operation but in spite of it the plaintiff could not finish the work in time inspite of the fact that time was extended upto 15th June, 1958 from 31st March, 1958 within which it was to be completed.
(3.) IT was further pleaded that the additional work done by the plaintif was in accordance with the terms of the contract bond and was covered by the condition No. 21 of the said bond. IT was also pleaded that supply off bearing plates was not responsibility of the defendant and the plaintiff himself quoted the rate of copper bearing plates at Rs. 8/- per square feet. The order, however, for bearing plates was placed for the facility of the plaintiff. The suit proceeded exparte against the defendant No. 4, who was Superintending Engineer at the relevant time in the department. Upon the pleadings of the parties the following issues were framed ;- 1.Whether the completion of the bridge before 15-6-1958 was rendered an impossibility by the department engineer of the defendant No. 1 ? 2.Whether the further progress of the work became impossible as alleged in para 7 of the plaint ? 3.Whether the rescission of the contract by the defendant No. 4 was illegal as alleged in para 11 of the plaint and not bona -fide as alleged in para 12 of the plaint ? 4.Whether the sum of Rs. 16,000/- is still due to the plaintiff against defendants as alleged in para 13 of the plaint ? 5.Whether the plaintiff is entitled to Rs. 7, 500/- as interest by way of damages against the defendants ? 6.Whether the plaintiffs' claim is within time as alleged in para 24 of the plaint ? 7.Whether the claim of the plaintiff is barred by time ? 8.Whether the plaintiff applied to the Chief Engineer for extension of time ? 9.To what relief, if any, is the plaintiff entitled ?;