KULDIP SINGH Vs. THE JALANDHAR IMPROVEMENT TRUST, JALANDHAR

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree of the learned single Judge, whereby, the appeal filed by the defendant was allowed and the suit of the plaintiff-appellant was dismissed.

(2.) The facts of the case relevant to its disposal are that the appellant entered into an agreement dated 2nd May, 1966 (Exhibit P.6) with the respondent to construct a road in one of the development schemes at Jalandhar. One of the conditions of the contract was that the work was to be completed by Dec. 14, 1967. The last payment in connection with the contract, was received by the appellant on 14th Dec., 1967, under protest, as the full amount claimed by him was not paid. As per the terms of the agreement (Exhibit P.6) it was provided that if during the progress of the work any additional work was involved, for which no rate had been fixed in the contract, then such class of work would be carried out at the rates entered in the schedule of rates of district Jalandhar. According to the appellant, the earth-filling item of the work was to be paid for by the respondent at the rate of Rs. 56/- per thousand cubic feet provided the earth was available within the radius of two miles from the work site. The allegation of the appellant is that as the earth was not available within a distance of two miles, it had to be brought from a lead of seven miles and two furlongs, with the result that as per the terms of the contract the appellant was entitled to the payment of a substantial extra amount, which he quantified at Rs. 1,15,477.23. Certain other amounts were also claimed by the appellant making a total of Rs. 1,75,000.00. As the amount claimed by the appellant was not being paid, a notice under section 98 of the Town Improvement Act, was served on the respondent and thereafter, a suit for recovery of Rs. 1,75,000/ - was filed on 9th Feb., 1971. In answer to the plaint, a reply was filed by the respondent stating inter alia, that the suit was barred by time and that the plaintiff was debarred from filing the present suit by his own act and conduct. On merits, it was averred that no additional work was ever ordered or done by the appellant and as such the question of any extra payment being made to him, did not arise. It was also denied that there was no earth available within the radius of two miles, with the result that the rate of Rs. 56/- per thousand cubic feet, was to be paid as a flat rate for that item had been quoted. On the pleadings of the parties, the trial Court framed the following issues :

(3.) Aggrieved against the order of the trial Court L.P.A. 185 of 1974 was filed and that having been allowed, the plaintiff-appellant has filed the present Letters Patent Appeal.