MUNICIPAL BOARD Vs. BABU RAM LAL

JUDGEMENT

(1.) This is a first appeal by the Municipal Board of Agra through its Chairman against a decree of the learned Subordinate Judge of Agra in favour of the plaintiff, a contractor B. Ram Lal. The plaint claimed that the plaintiff had constructed 23 works in the year 1930, the works being completed in April, May, June a July, of that year, and that there was a balance due to the plaintiff of Rs. 4,696 on these works and also three items of the security of Rs. 300, 50 and 50. Para. 3 of the plaint stated: That in response to the orders placed with him by the Municipal Board, Agra, through defendants 2 and 3, the plaintiff during the year 1930-31 executed repairs and the constructions of the work specified in annexure A, which also gives full particulars about the dates on which the respective works were completed and on which the bills relating thereto were delivered to the defendant Board as well as the amounts of the bills.

(2.) Para. 2 of the plaint stated that on 2 April, 1930 the plaintiff and defendant 1, acting through its Chairman, executed an agreement providing that the plaintiff was to execute repairs and constructions of all works that may be ordered by the Municipal Engineer, Agra, from time to time during the period ending 31 March 1931; that the plaintiff should be paid for the works done at the rates enumerated in the schedule of rates sanctioned by the Municipal Board, Agra, and that if the plaintiff refused to execute any work given to him by the Board's Engineer, the defendant Board shall have the power to cancel his contract and to forfeit his security deposit of Rs. 300. These terms are embodied in a written agreement printed on pages 31 and 32 signed by the Chairman and the Executive Officer and also by the contractor on a paper bearing a stamp of Rs. 3 value. Various pleas were taken in the written statement in regard to various works. In para. 21 it was stated that the defendant was willing to pay Rs. 324-4-0 for works Nos. 2, 5, 11, 13, 21 and 22, "which can be legally claimed against him for the serial numbers, stated above, and the security amounts of Rs. 50 and Rs 50." In regard to the security of Rs. 300, it was claimed that this amount was premature as the bills were still unsettled. In regard to the other items various objections are taken. In para. 2 it was pleaded paras. 3 and 4 of the plaint as stated are not admitted. In para. 4 only the payment of Rs. 31-14-0 is admitted." In para. 13 it was pleaded as regards serial No. 16, constructing a nala in Katra Umar Khan valued at Rs. 1,278, that the contractor and some P.W. D. officials of the Board in collusion with a member of the Board did some works which were neither sanctioned by the P.S.C. or Board or any authorized person. In para. 15 an objection was taken against various serials that they were not sanctioned by the P.W.D. and Board as provided under Section 97, Municipal Act, and under Government Notification No. 1906/11-6H, dated 15 July 1916, and the Board is therefore not legally bound to pay the said amount. In para. 6 of the written statement it was pleaded that the amount claimed in para, 11 of the plaint, which alludes to the total due for the works in question, was not admitted. Now it is to be noted that although in para. 3 of the plaint it bad been clearly pleaded that the orders were placed by the Municipal Board through defendants 2 and 3, that is the Municipal Engineer and the Overseer, it was not definitely pleaded in the written statement that the Municipal Engineer was not empowered by the Board to sanction any contracts. An interrogatory was addressed by the plaintiff to the Board, printed on p. 11, and question No. 4 asked was: Is it a fact that all orders for constructions and repairs, etc., were communicated by the Municipal Board of Agra to its contractor through the Municipal Engineer?

(3.) In reply to this question it was open to the defendant to state that the Municipal Engineer had not been empowered by the Board under Section 96(2), Municipalities Act, U.P. Act 2 of 1916, but the Board made no such reply. On the contrary the Board merely stated on p. 12 not necessarily." This reply implies that in some cases orders for constructions and repairs were given by the Board to its contractors through the Municipal Engineer, and so far as it goes this would be an admission that the Municipal Engineer was a person empowered under Section 96 (2). No issue was framed on this point as it did not appear to the lower Court that there was any contest of this nature; nor has any ground of appeal raised this point. But Dr. Asthana, the learned Counsel for the appellants, has addressed us on this point and has argued that it was the duty of the plaintiff to prove that the Municipal Engineer was empowered to sanction contracts under Section 96(2). I consider that if the Board desired to raise this point, it should have done so by a specific pleading and have seen that an issue was framed on the subject, and moreover as the point was one within the special knowledge of the Board the onus of proof would have lain on the Board under Section 106, Evidence Act. i consider that it is tool late for the issue to be raised now in argument in first appeal and that as the matter would require evidence, that is not a point of which we should take notice. I would refer in this connexion to the ruling of their Lordships of the Privy Council in M.E. Moolla Sons, Ltd. V/s. Burjorjee 1932 59 IA 161, where their Lordships quoted from Connecticut Fire Insurance Co. V/s. Kavanagh (1892) AC 473: When a question of law is raised for the first] time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.