Judgment

CHINNAPPA REDDY, J.:- The State of Rajasthan, defendant in Civil Suit No. 9 of 1963 in the Court of the Senior Civil Judge, Udaipur, is the appellant in this appeal filed pursuant to a certificate granted under Article 133 (1) (a) of the Constitution of India (as it stood prior to the 30th amendment). The plaintiff respondent took a building work on contract from the erstwhile Government of the State of Udaipur. He completed the work on 6th June, 1950. Despite demands and notices issued by the plaintiff a considerable amount due to him remained unpaid. He, therefore, filed the suit out of which the appeal arises to recover a sum of Rs. 5,19,458/11/- together with interest at the rate of 12%. The suit was contested by the State of Rajasthan. An interim decree for a sum of Rs. 66,517 was passed on 7th November, 1955. After full trial a decree for Rs. 1,67,619 (including the sum of Rupees 66,517 for which a preliminary decree had already been passed) was passed on 11-6-1958/30-6-1958. The decree also awarded interest at the rate of 41/2 % on the amount decreed from the date of suit till the date of realisation. The plaintiff and the defendant preferred appeals to the High Court to Rajasthan. The High Court reduced the decretal amount by a sum of Rs. 9,991. The High Court, however, held that the plaintiff was entitled to interest from 1st January, 1951, and not merely from the date of suit. The High Court also enhanced the rate of interest pendente lite from 4 1/2% to 6 per cent. The High Court having varied the decree of the trial Court, the State of Rajasthan sought and obtained a certificate under Article 133 (1) (a) of the Constitution and has filed this appeal.

2. The controversy in the High Court related primarily to (i) conveyance and lift charges; (ii) alleged double benefit in regard to bond-stone, lintels and sills; (iii) use of Jodhpur slabs and their high cost; (iv) charge for C. P. Teak wood at the same rates a for Burma Teak. In regard to conveyance and lift charges the High Court pointed out that no question was raised in the Memorandum of grounds of appeal and there was, therefore, no justification for permitting the learned counsel for the State to assail the finding of the trial Court relating to those charges. We do not see any reason either why the learned counsel should be permitted to agitate this question in this appeal. Regarding double-charge for bond-stone, lintels and sills, the complaint of the appellant was that while separate payment was being made for them, they had also been included in the measurements of the walls in which they happened to be fixed. From the office circular issued by the Chief Engineer of the Public Works Department of the United State of Rajasthan on 12th July, 1948, it appears that it was the practice up till then to allow payment for bond-stones, lintels and sills separately without deducting their cubic contents from the general wall masonry. This had always been the practice and this was never objected to by the Accountant General. In view of the practice obtaining till then it could not be said that the contractor had wrongfully claimed double payment for bond-stones, lintels and sills. The use of Jodhpur slabs was not questioned in the written statement. All that was said was that the rate was high but at the trial there was no evidence worth the name, as observed by the High Court to show that the charge was excessive. Again there was no objection to the use of C. P. Teak Wood instead of Burma Teak Wood as the latter was not available. According to the letter of the Superintending Engineer dated 6th February, 1950, where Burma teak wood was not available and C. P. teak wood was used, the rate specified for Burma teak wood should be taken for C. P. teak wood. It could not, therefore, be said that the contractor had charged more than what he should have for C. P. teak wood.

3. The last question which was argued before us by Shri Jain, learned counsel for the State of