K.C.Agrawal, J. - (1.) THIS is a defendant's appeal from the judgment and decree dated 22-8-1964 passed by the learned Additional Civil Judge, Meerut, decreeing the suit of the plaintiff-respondent partly for a sum of Rs. 14,283. The suit was filed by the plaintiff-respondent in the following circumstances.
(2.) THE Executive Engineer, Ganges Canal, Meerut Division, Meerut, issued a notice dated 13th August, 1957, inviting tenders for constructing a new Tail Fall V. R. B. at Mile 7-0-330 of Jani Escape. THE tender submitted by the plaintiff-respondent, in pursuance of the aforesaid notice, was accepted on the 19th of August, 1957, and a formal contract in that behalf was, thereafter, executed on November 4, 1957. THE plaintiff started the work, but as the officers of the defendant began to harass him, he had to stop it on January 24, 1958. Upon the understanding arrived at, the work was resumed soon thereafter but it was finally again stopped by the plaintiff on March 21, 1958. Admittedly, the plaintiff had not executed the entire work undertaken by him under the contract. It was, thereafter, got done by the defendant through another agency. THE plaintiff, however, filed the suit, giving rise to the present appeal, for recovery of a sum of Rupees 34,780,71 Paise. Schedules A to H appended to the plaint give the details of the amount claimed in the plaint. As in the present appeal we are concerned only with the claims under Schedules B. D. F. G and H, we need not mention the facts relating to other Schedules. THE claim under Schedule B was for the payment of Rs. 13,770 regarding reinforced concrete work (briefly stated as R.C.C), which according to the plaintiff was extra work not otherwise provided for in the contract. THE total quantity of the work was 1,02000 Cft. THE claim has been made @ 35% per Cft., whereas the payment was made only @ 21.50% Cft. THE claim under Schedule D was for a sum of Rs. 1265.08 Paise regarding the amount unduly recovered. Under Schedule F, the plaintiff claimed Rs. 283 on account of shuttering that was done by the plaintiff, it had been left and could not be removed due to the position being behind glacis. Schedule G was for the sum of Rs. 2,148 as the price of the stores which had been supplied by the plaintiff for execution of the work, to the Government. THE last item under Schedule H was for the recovery of Rs. 6,650, which had been deducted by the defendant from the bill paid on 15-3- 1959 by way of penalty. The suit was contested by the State of U. P. and it was denied that the plaintiff was entitled to any amount claimed in the plaint. The defendant disputed that the plaintiff had done any extra work as claimed by him in Schedule B. The claims made under other Schedules were also controverted. Admitting that a sum of Rs. 6,650 had been deducted out of the amount payable to the plaintiff, the defendant stated in the written statement that as the plaintiff was guilty of having not performed the contract within time the defendant had authority under the contract executed between the plaintiff and the defendant to deduct the amount. As stated above, the trial court decreed the suit of the plaintiff for Rs. 14,283 only. This decree was in respect of the amounts claimed under Schedules B and F. In respect of amounts claimed under other Schedules, the finding given by the court below is that the plaintiff could not prove that he was entitled to it and, therefore, the suit regarding them was liable to be dismissed. Feeling aggrieved by the judgment and decree of the trial court, the State of U. P. has filed the present appeal challenging the decree only in respect of Schedule B. The appeal is accordingly, valued at Rs. 13,770. The plaintiff has filed a Cross-Objection valuing it at Rupees 10,352 for the items covered by Schedules D. F, G and H.
(3.) WE propose to lake up the appeal filed by the State of U. P. first. As stated above, the claim under Schedule B was in respect of extra work. The details of the extra work have been given in the aforesaid Schedule. The same are as under : "Reinforced concrete paid as plain concrete. This work has been executed under instructions of the Supervising Staff in the following situations: (a) Horizontal and vertical reinforcement to connect different layers of 1:4:8 concrete. (b) WElded reinforcement net work on Girder piles near the Wall. (c) Net work of steel reinforcement in foundations of down stream wing walls where pipe fules have been provided. (d) In block foundations. (e) In Glacie portion to bind. 1:4:8 Cement Concrete with 1:2:3. (f) To bind brick work with foundation concrete." The plaintiff's case with regard to this item was that under the contract the plaintiff was required to do cement concrete, but as it was ordered by the officers concerned to do R.C.C., it rendered the R.C.C. of 10,2000 Cft. The defendant, however, instead of making payment for the R.C.C. has paid only for the cement concrete and, therefore, it was entitled to have payment for the R.C.C. The dispute under this Schedule is with regard to the work done in the bed glacie portion, enjoining the layers, Wing Walls, in the pipe piling of the foundation, in the toe wall by fitting and by making a net work of iron bars. The contract, however, provided not only the drawing Ext. 1, which was given to the plaintiff, but also for the execution of these items by cement concrete. According to the plaintiff, he was subsequently ordered by the Engineer Incharge to do R.C.C. instead of cement concrete and accordingly, the orders were carried out. In support of his case, Jai Prakash, who was the partner of the plaintiff, has appeared as P.W. 2. In his statement, he has clearly stated that he was asked by the Engineer Incharge to do these works by the R.C.C. instead of cement concrete and the same was, thereafter, done in the ratio of 1:4:8. The plaintiff has also produced Ex. 2 dated 22-2-1958, the second drawing supplied to him. The plaintiff had to execute the work in accordance with this drawing. The second drawing Ex. 2 shows some alterations and changes in the nature of work, i.e., R.C.C. In the lower part of the design in Ex. 2, a provision has been made for using of iron bars while this was not shown in drawing Ex. 1. This change in the drawing itself is significant and establishes that the Engineer Incharge and others concerned subsequently changed their minds and desired the items mentioned in Schedule B to be carried in R.C.C. instead of cement concrete.;