H BASAVARAJAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This civil petition is filed seeking review of the Judgment of this Court dated 29-8-1986 rendered in RFA No. 9/1976. This matter has come before us since the learned Judges who constituted the Division Bench have since retired. What has been urged by Mr. B.T. Parthasarathy, learned Counsel for the petitioner, is that this Court overlooked the provisions of Section 70 of the Contract Act in rejecting the claim for the extra work done by the appellant- plaintiff though the said extra work did not form part of the contract of constructing a road or reconstructing a road in the forest area.

(2.) That the plaintiff tendered for a particular works contract invited by the Public Works Department of the State of Karnataka is not in dispute. He submitted a bill which was not paid in full. It was drastically slashed; as against Rs. 21,723/- of which a portion only was allowed and that short settlement formed the basis of the suit claim as only Rs. 6,622-47 was sanctioned. That provoked the plaintiff to issue a legal notice threatening to sever the contract. But beyond that he did not do anything. But later presented a suit claiming payment for work done inter alia contending that the slashing of the bills submitted was not in accordance with law or the facts. In this Court, however, it is argued by the learned Counsel that the bills Exhibits-D74 and D77 were prepared on the basis of the measurements taken. It was however argued by the learned Counsel that the defendants had undoubtedly deducted the amounts from the items of the said bills on the ground that when the quantity of the materials shown as per the said bills were beyond the estimated quantity while the District Forest Officer himself had expressed in unequivocal term that the plaintiff had done the work satisfactorily . That was repelled having regard to the statement made by D.W. 2 in his oral evidence. The trial Court interpreted his evidence to mean that curtailment of the claim was rclatable not only to the utilisation of material beyond the estimated quantity but also on account of the false measurements claimed by the plaintiff. It was therefore that on such interpretation the Court was pursuadcd to come to the conclusion that Exhibits-D74 and D77 did not establish the claims of the plaintiff. On the other hand, the Court held that it was the plaintiffs burden to prove that his works were according to the measurements recorded and that burden had not been discharged by cogent evidence.

(3.) We find it to be a finding of fact and not a question of law which can be said to be an error apparent on the face of the record calling for a review. However, Mr. B.T. Parthasarathy argued that in order to execute the works contract for which the plaintiff had tendered, he was required to remove certain bushes on the road-side for which he was not paid though the concerned officer had directed him to submit a supplementary bill. We do not find any reference to such an argument either in the trial Court or in this Court earlier in this appeal when it was heard and disposed of by the judgmet under review. We therefore must necessarily stay within the bounds of Order 47, Rule 1 of the C.P.C. and treat this petition as a petition for review and not for re-hearing of the entire case where we will have to go into the details of the evidence, reassess the same and then pronounce a fresh upon such exercise. That would be a matter for the appellate Court and not for this Court in view.