GOPAL UKERA Vs. BNRY CO LTD

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit for price of work done and for damages, together with interest, has been decreed in a modified form against the defendants, the B.N. Ry. Co. Ltd. The plaint is not quite artistically drawn, but the plaintiff's case, put quite shortly, was as follows: in February 1920 the defendant company gave the plaintiff contract work in connexion with the construction of the Talchar Coal Field Railway for a portion designated as from change 314 to 330; that the plaintiff commenced work under the contract and continued to do so till 11 September 1924; that before the date last mentioned the work from chainage 324 to 330 was suspended pending decision of a proposed change in the plan; that by that date the earthwork in chainage 314 to 315 had been almost completed, while that from chainage 315 to 324 had been partially completed, the total work done in chainages 314 to 324 being two-thirds of what had been proposed; that on the said 11 September 1924 the defendants stopped the work which the plaintiff was doing, but at the same time required him to maintain an efficient arrangement so that, when necessary, he might resume the work or take up any other work that might be given him in substitution; and that by the end of December 1924 the defendants asked the plaintiff to discontinue the arrangement and thereafter finally cancelled the contract. The suit was instituted on 18 August 1926. The claim was laid at Rs. 42,000 odd after deduction of payments which the plaintiff had received. The work which the plaintiff did, fell under three categories, viz. earthwork, bridgework, and buildings and miscellaneous work. The rates for the different items of these works were scheduled in three contracts, viz. Ex. A, Ex. A (1) and Ex. A (2) respectively, and the plaintiff also claimed that in respect of certain matters there were modifications or variations made subsequently on his representation.

(2.) In the written statement filed on behalf of the defendants many of the allegations in the plaint on which the defendant's liability was founded were denied, and appended thereto were three schedules which show at a glance on what points the parties differed on the question of measurements, rates or accounts. Some of the statements contained in the written statement are not quite accurate: the Subordinate Judge has pointed out in what way they are wrong, and nothing has been said before us to challenge the correctness of these findings. It was pleaded that the plaintiff could legitimately get Rs. 2,221 as his dues for works done. A further amount of Rs. 2,074-4-0 was afforded on the ground of alleged loss due to stoppage of work, etc., but without prejudice. The Subordinate Judge was of opinion that the plaintiff was entitled to these two amounts, viz. Rs. 2,221 + Rs. 2,074-4-0 Rs. 4,295-4-0, and allowing a further amount of Rs. 3,172-13-0 on certain heads gave the plaintiff decree for Rs. 7,468-1-0 with costs in proportion to his success.

(3.) The contentions urged on behalf of the appellants fall under certain specific heads and it will be convenient to deal with them separately item by item. We first of all take up the main item of work, i.e., earth work in Sch. A to the plaint. (The judgment after considering the evidence on record and finding that no reliance could be placed on the measurements produced by either party proceeded.) In this unsatisfactory state of things it is not quite easy to determine how the case is to be decided. Here we cannot follow the rule which Mr. Tulloch suggested in Ex. 8, to which reference has already been made, and say that the quantity claimed by the contractor should be paid, because we are of opinion that the plaintiff's claim is not a genuine one. One view that may be taken is that it was for the plaintiff to prove his claim, and if the evidence he has called for the purpose is not reliable he can get nothing beyond what the defendants have admitted. But this rule can hardly be applied to a case where, as here, the defendants measurements were not properly made and the defendants have not been able to produce all relevant materials in connexion with the measurements they made. Mr. Austin's evidence makes it perfectly plain that the Railway Engineers have a double duty to discharge: they have to see to the interest of their employers and they have a further duty to the contractor and see that the latter is satisfied that his just dues are paid. Consequently once the measurements made by the defendants are considered unsatisfactory the contractor's claim acquires a good deal of strength. The question is to what extent can we or should we accept the plaintiff's case.