Judgment

P. JAGANMOHAN REDDY J.: This appeal is by a Certificate under Article 133 (l) (a) of the Constitution against the Judgment and decree of the Allahabad High Court dated 8th March 1965 setting aside the decree of the Trial Court and dismissing the suit of the Plaintiff-Appellant.

2. The Appellant had submitted a tender to construct mile 3 of Nainital Bhowali Road at 13 per cent below the rates given in Schedule B to the Notice issued by the Government of the United Provinces on the 30th September, 1946. This tender was accepted and a contract was signed on 20th November 1946. It is alleged by the Appellant that the rates given in Schedule B were based on the calculation that stone required for the road construction work would be available at a distance of 26 Chains while as a matter of fact no stone was available within that distance. The Appellant had in fact to get stone from Gadhera and Bhumedar from a distance of 79 and ll0 chains respectively. It is his contention that by reason of the non-availability of the stone and the definite understanding and assurance given by the local authorities of the P. W. D. that higher rates would be given for the extra work done over and above the work provided in the contract he carried on the work. It was also alleged that during the construction work on the road very hard shale rock came in the way not originally provided for in the contract, as such he was entitled to get the costs for the work so done at the current rates from the P. W. D. which was not paid to him. In respect of these items of work done as also due to his having done the work by bringing stone from a longer distance than was given in the estimates the Appellant claimed Rs. 48,840- 0-0 due as balance together with interest by way of damages at 12% amounting to Rs. 17,582-0-0, making a total of Rs. 66,422-0-0. When this claim was rejected the Appellant gave notice under Section 80 of the C. P. C. and thereafter filed a suit for the above amount.

3. The Defendant-Respondent resisted the suit and pleaded that no assurance was given to the Appellant by officers of the PWD as alleged, that the quantity of very hard shale shown in the plaint was incorrect and at any rate the contractor, under paragraph 5 of the special instructions must be prepared to execute the work at the original tender rate in excess of the given quantities of work upto 30% and if an increase in excess of 30 % is ordered over the work the contractor must intimate to the Engineer-in-charge in writing his willingness or refusal to do extra work at the original tendered rates. If he refuses to carry on at the original rates he is required to settle fresh rate for increased work over 30% before doing the work.

4. On these averments the Trial Court held issues l, 2, 6 and 7 in favour of the .Appellant while issues 3, 4 and 5 were decided against him. In the result a decree for a sum of Rs. 20,495/- for extra lead plus Rupees 1663-14-0 for extra work done under the item very hard shale and Rupees 4,155/- interest by way of damages on Rs. 22,158-14-0 making a total of Rs. 26,313-14-0 was passed with interest at 3% per annum. In appeal the High Court reversed the decree holding that (1) the employment of the figure 26 chains in the estimate was for no other purpose than that of calculation and if knowing that the same was available within 26 chains it (PWD) worked out its estimates on that basis, it could not be held to have extended any assurance much less guarantee to the contractors that they would get stone within that distance; (2) the Plaintiff-Appellant performed the work required of him without exercising his right under paragraph 5 of the special instructions which gives the option to do the extra work in excess of 30% but if he refuses to do the extra work at the originally tendered rates he should settle fresh rates for increased work over 30% before doing the work which he failed to do. In view of these findings against the appellant the appea