Judgment

RAY, J :- This is an appeal by certificate from the judgment dated 7, December, 1965 of the High Court of Patna decreeing the appellant s suit in part and setting aside the judgment of the Additional Subordinate Judge dismissing the suit of the appellant.

2. The appellant filed a suit for the sum of Rupees 1,67,017/- as balance due to the appellant for earth work done for cutting canal and raising embankments for a project known as Balwa Sathi Distributory.

3. On 1 April, 1951 the appellant s tender was accepted and the contract for construction work was entered into. The work was completed in the month of June, 1952. The appellant claimed his total dues to be Rupees 5,09,053/-. The appellant s case was that he was paid Rupees 3,42,036/-. The appellant filed the suit for the balance sum of money.

4. One of the principal issues was whether the mode of measurement adopted by the defendant was correct and proper. There are two types of measurements for construction work. One is called the pit measurement. The other is called sectional measurement. These types are for measuring the total earth work done. The contract did not specify which type of measurement was to be adopted. The trial Court came to the conclusion that there was an implied contract between the parties that the pit measurement was applicable in the present case. The High Court upheld that conclusion. The finding of the High Court was not challenged in this Court.

5. Counsel on behalf of the appellant only contended that Items 2, 3, 8 and 9 in the Schedule of works executed by the appellant as particularised in the annexure to the plaint should have been allowed and decreed by the High Court. Item No. 2 is for extra lift on earth work recorded in measurement books amounting to Rs. 3870/-. Item No. 3 is for extra lead recorded in measurement book amounting to Rupees 3000/-. Item No. 8 is for earth work done in Satwaria Branch amounting to Rupees 5597/-. Item No. 9 is for earth work done in Matraria Branch amounting to Rupees 35,929/- The defendant in the written statement denied that the appellant was entitled to the alleged sums. The defendant further alleged that the earth work done by the appellant has been measured up completely with all lead and lift and finally paid for.

6. The High Court recorded in the judgment that Items Nos. 6 to 10 in the Schedule to the plaint were given up and not pressed. Therefore Items Nos. 8 and 9 in the Schedule are not open to be canvassed. Counsel for the appellant submitted that those items were given up because of misapprehension of counsel. Reliance was placed on the decision in Holt v. Jesse, (18,76) LR 3 Ch. D. 177. There the action came up for hearing. The defendant by his counsel submitted to account for all moneys. An application was later on made that counsel and solicitors who appeared for the defendant had misapprehended and mistaken their instructions, and were not authorised to give their consent. If all the information which counsel ought to have when he gives a consent is not before him, the Courts find out whether the unfortunate client should be bound by such misapprehension. In the English case, counsel who asked the court to decide did not say that they were not in possession of every material fact which was necessary to their consent in the case. The Court was unwilling to give a general licence to undo what they did inside the Court, because they did not like it.

7. In the present case in the application for leave to appeal it was alleged that at the bar the claims as per Items Nos. 8 and 9 were given up and not pressed on account of the misapprehension that these were not covered by the contract which related to the construction of Balwa Singh Distributory only and not to the Satwaria and Matraria Distributories. The application for leave to appeal to this Court was affirmed be an affidavit of Anjani Kumar Sinha. He describes himself as a pairvikar of the appellant. He states in the affidavit that the fac