J.P. Jain, J.
1. This is defendant's appeal and arises out of a suit brought by Messrs. Baijnath Prasad Gulabsingh plaintiffs against the State of Raj for recovery of Rs. 82, 809. 48P. The plaintiffs were given a contract for the construction of wasteweir of Guda Irrigation Dam in Bundi District under Agreement No. 72 dated 15.3.54. The work was rock cutting and dumping at the site in stacks within 200 feet distance. The estimated quantity of work was 42, 92, 500 cft. to be paid at the rate of Rs. 70/- per 1000 cft. The plaintiffs were required to carry the spoils beyond a distance of 200 feet. The plaintiffs therefore claimed extra lead Rs. 275 per 100 cft. The Chief Engineer sanctioned the extra lead Rs. 3-per 1000 cft. per chain, as according to him the rate for such an extra lead was not specified in the Schedule of Races. The plaintiff's claim was that they were entitled to Rs. 1, 02, 836 95 and the Public Works Department (Irrigation) allowed them only Rs. 40,650.47 in accordance with the rate sanctioned by the Chief Engineer. On this account the plaintiffs claimed in the present suit a sum of Rs. 62 186 48. Besides this about the rate the plaintiff's grievance in the plaint was that the amount of Rs. 20, 623 - has been deducted from their final bill as charges towards the use of machinery employed by Messrs. Baijnath Prasad and Company under contract No. 73. They thus claimed a decree for Rs. 82, 809. 24 with pendente little and fute interest. The defendant admitted that the plaintiff's work involved an extra lead. It was, however, pleaded that the extra lead involved was about 100 to 200 feet and as the extra item was not mentioned in the schedule of rates, the Chief Engineer was right in allowing the extra lead Rs. 3- per 1000 eft per chain (100ft) and the plaintiff had been paid accordingly. There was nothing due to the plaintiffs on this account. As regards the second item, the defendant admitted that only a sum of Rs. 11, 771, 38 was deducted from the plaintiff's final bill and not Rs. 50.625, as alleged. It was also ad rutted that this amount concerned the work of Baijnath Prasad and Company. But it was asserted that the two firms were not separate and Shri Baijnath Prasad was the person who signed both the agreements.
2. The learned trial Judge framed eight issues and after having tried the issues he allowed Rs. 62, 146, 48 towards their first claim and Rs. 11, 771, 38 towards the second. He thus decreed the plaintiff's suit for a sum of Rs. 73, 217, 86 with proportionate costs. Also allowed pendent lite and future interest 1 per annum.
3. The Learned Additional Government Advocate does not press his appeal with regard to the sum of Rs. 11. 771, 38 as this amount, which wag deducted from the final bill of the plaintiffs and which was in fact due from the latter. In this view of the matter the decree of Rs. 11. 771. 38 is not disturbed.
4. It has been contended by learned Counsel for the State that under the agreement the plaintiffs were to carry and dump the spoils after rock cutting at the site in snacks within 200 ft. distance according to the drawings and specifications. The cost for this work was included in the rate offered by the contractor. The rate for the extra lead is not provided in the schedule of rates and as such the Chief Engineer was the only authority to decide about the rate and the rate and the Chief Engineer by his letter dated 23.8.1955 (Ex. A. 5) decided that the extra lead was to be allowed Rs. 3/- per 1000 cft per chain after deducing 2 chains lead already included in the original rate. On the other hand, learned Counsel for the plaintiffs contends that the spoil was material and for cartage of such material, rate provided in the schedule of rates. He places relience on the following item in the schedule:
III. Carting Materials.
6. Stone, Bajri, Ballast etc. 1/2 mile at Rs. 2.75 per 100 cft. His father submission is that this lead was recommended by the Executive Engineer and it was the Executive Engineer who was to fix the rate in accordance with the footnote given in the tender form. According to him, the rates fixed by the Chief Engineer are not binding on the plaintiffs.
5. We have considered the rival contentions of the parties and perused the schedule of rates. We are satisfied that the rate for the additional work carried out by the contractor is not given in the schedule of rates. There is an item 'lead of earth beyond 100ft.' The rate given for this is Rs. 2 -per 1000 cft. The item referred to above and relied upon by learned Counsel for the plaintiffs is not in the manner as given for the lead of earth. The rate provided under this item is not a rate for extra lead beyond 200 ft but it includes cartage within that distance. According to the contract, the cost of carrying and dumping the spoil within a distance of 200 feet was already included Rs. 70 per 1000 eft offered by the contractors. The item under the head 'Carting Material' does not specify for extra carting beyond 200 ft. The item relied upon by the learned Counsel, therefore, is materially different and the rates given there cannot be applied to carry the spoils for another one or two chains, (that is 100 ft to 200 ft). and the plaintiffs cannot set.up a claim for the extra distance that they have carried the spoils at the rate given for this item. Obviously the extra lead in this case only involved further cartilage of the spoil and it did not involve an additional loading and unloading. Thus there is no rate for extra lead in the schedule of rates for stone, ballast etc. The learned trial Judge is not right in holding that this item was applicable and the plaintiffs could claim Rs. 2. 75 per 100 cft.
6. According to Clause 13 of the agreement it is provided that if the additional work includes any class of work for which no rate is provided in this contract, then such class of work shall be carried out at the rates entered in the schedule of rates of the Government and if such class of work is not entered in the schedule of rates of the Government, then the contractor shall, within seven days of the date of the receipt of the order to carry out the additional work inform the Engineer-in charge of the rate which it is his intention to charge for such class of work and if the Engineer in charge does not agree to this rate, he shall, by notice in writing, be at liberty to cancel his order to carry out such class of work In this case the plaintiffs carried oat the work. In this context the learned Counsel for the plaintiff relies upon letters Ex. 4 and Ex. 5 In Ex. 4, Gulabsingh, a partner of the plaintiffs hi? stated that his claim for 35,00,000 eft Rs. 2.75 per 100 eft has not been admitted by the Executive Engineer in full as he had only recommended for 17,00,000 cft at that rate. This letter is dated 14-4-1955 The plaintiffs were fully aware that the Executive Engineer only recommended the rate of Rs. 2.75 per 100 cft to the Chief Engineer and it was the Chief Engineer who was the final authority in the matter. It was not contend in that letter that the Executive Engineer had finally approved the rate Rs. 2.75 per 100 cft and as such they could claim the extra lead at that rate By the trend of the letter it is more than clear that they were well aware that it was the Chief Engineer who was the final authority in the matter of fixing the rate. They also made a grievance that the extra lead of 35,00,000 cft was the correct one and the Executive Engineer was wrong in recommending for 17,00,000 eft only. Ex.5 is a letter written by the Executive Engineer to the Superintending Engineer. In this letter, the Executive Engineer has stated 17.00,000 cft spoils had to fee dumped between 3 to 4 chains. He, however, recommended that the contractor was entitled to the extra lead of 17,08,730 cft and the contractor is eligible, according to the schedule of rates, Rs. 2.75 per 100 cft, as the lead is within half a mile. This letter shows that the Executive Engineer was recommending the rate of Rs. 2.75 per 100 cft on the basis that the extra work fell within the schedule of rates We have already found above that the rates of the applicable to the extra work is not mentioned, in the schedule of rate of the Govt. The recommendation, by the Exe. Eng. was based on wrong premises. We are unable to find from the record that the Exe Eng was ever appointed as the Engineer-in-charge of the work ,,The agreement on behalf of, the Government was signed by the Chief Engineer as it is clear, from, the agreement No. 72 dated 15-3-1954. In this view of the matter, in our opinion, the Chief Engineer was the only person to approve of the rate for this additional work under Clause 13 of the agreement.
7. Under Clause 6 of the conditions of contract the final certificate of completion of work shall be furnished either by the Chief Engineer or by the other duly authorised Engineer (hereinafter called the Engineer-in-charge). In the present case as no Engineer in charge was appointed and the Chief Engineer accepted the contract, he will be deemed to be the Engineer-in-charge so far as the present contract is concerned. This is how, Gulad Singh, plaintiff, understood the terms of the contract. In cross examination he stated.
Shri. N.N. Bakhshi the Executive Engineer who gave verbai assurance and made a recommodation. I knew that the Executive Engineer was the recommending authority and not the final authority when he gave the assurance. The Chief Engineer is the final authority. The Chief Engineer had come on the site.
Below acceptance of the tender by Chief Engineer the following note appears on tender form C.
All extra items of work not included in Schedule 'C' will be paid at schedule rates. In the absence of schedule rates for such items the rates should be analysed and submitted to the Executive Engineer for approval. Such approval rates will be acceptable to the contractor and will be final. This note purports to bar the signature if the Executive Engineer. This note is however not in accordance with the printed conditions of contract contained in tender form 'C' Under Clause 13 of these conditions in the absence of a rate in the schedule of P.W. D rates, it is the Engineer-in-charge who has authority to determine the rates and not the Executive Engineer. Clause 6, indicates that the Engineer-in-charge is as Engineer duly authored by the Chief Engineer. In the absence of the appointment of Engineer-in-charge for a particular work the Chief Engineer who sanctioned the contract is alone competent to determine the rates for which no rate is provided either in this contract or in the P.W.D. schedule of rates. As we have shown above, the plaintiffs understood the terms of the contract properly and knew that only the Chief Engineer could determine the rates for such work.
8. As noticed above the Chief Engineer had fixed the rate for this additional lead Rs. 3 - per 1000 cft per chain as early as 23rd August, 1955. The contract work was in progress at that time and it was continued up till 29.6.56. If the rate fixed by the Chief Engineer was not acceptable to them, it was open to the contractor to have refused to carry out the work.
9. The fact that the contractors continued to carry out the work leads to the inference that they were willing to carry it out at the rate fixed by the Chief Engineer. They did not refuse to carry out the work and under Clause 13 of the agreement they are entitled to payment for this work at the rate determined by the Chief Engineer In his order Ex. A.4 dated 13.7.55 the Chief Engineer issued the following direction:
You should please intimate the average extra lead which should be arrived at by actual detailed measurements and checked by the Executive Engineer himself at site.
After detailed measurements contractor was paid an extra sum of Rs. 40, 650.
47. The plaintiffs have failed to show that there was any other error in working put this figure.
10. We may mention here that all the spoils did not have to be dumped at more than we chains Only some of them had to be dumped beyond two chains as is clear from letter Ex. 5 from the Executive Engineer in which it is mentioned that the total quantity which had to be carried beyond 200 ft came to 1708730 cft.
11. The plaintiffs failed to specify in the plaint how much of the spoils had to be dumped beyond two chains. They have also failed to specify how many chains beyond 2 chains this had to be dumped. In letter Ex. 5 it stated that 1708730 cft of spoils had to be dumped between 3 to 4 chains. The material facts which it was necessary for the plaintiffs to plead in the plaintiff order to be entitled to' the amount claimed have nether been pleaded in the plaint not proved in evidence. The trial court has given a decision about rate only am then passed a decree for the whole amount claimed in the plaint for extra lead which is not sustainable, There is no evidence on record even to show the total quantity of rock cutting done by the plaintiffs.
12. Letter Ex. 4 dated 14.4.55 from the plaintiffs to the Chief Engineer shows that they were fully aware of the fact that the Executive Engineer had reported that only about 17 lac cft of spoils had to be transported beyond 2 chains. They did not raise controversy about it in the plaint.
13. The basis for fixing the rate is given in the letter (Ex. A.4) by tie Chief Engineer. The rate of lead of earth (beyond 100 ft) is given in the schedule of rates as Rs. 2 - par 1000 cft obviously the fourth is not the same thing as the spoils of rock cutting. The Chief Engineer appears to have considered the extra weight and the carriage of rough stone and he has, therefore, allowed Rs. 3/- per 1000 cft per chain for the extra work to the contractor. In this he does not appear to be wrong. The unit weight of dry and loose earth is 1280 Kg cum and that of the ballast stone is 1600 to 1920 Kg cum. We are recording this data from a book of the Government of Rajasthan, Public Works Department (Buildings and Roads) as revised and in force from 1st October, 1966 From this it appears that the difference in unit weight between the earth and the ballast stone is not of more than 50%. The rate thus determined by the Chief Engineer, in our opinion, is not unreasonable.
14. In view of the foregoing discussion, it has to be held that the plaintiffs are not entitled to a further sum of Rs. 62, 146. 48 allowed by the trial court for the extra lead of the spoils.
15. In the result, the appeal is partly allowed and the decree of the trial court is modified and instead a decree for Rs. 11771. 38 only is maintained in favour of the plaintiffs against the defendant State. The plaintiff's claim for the rest is dismissed. The plaintiffs will however get pendent lite and future interest on the sum of Rs. a 11771, 38 at the rate allowed by the trial court. In the circumstances of the case, the parties are left to bear their own costs throughout.