1. Being aggrieved by the judgment and decree dated 25.10.1994 in Special Civil Suit No. 165 of 1982 dismissing the suit of the plaintiff with costs; the present appeal was filed by the original plaintiff.

2. FACTS:

Appellant is the original plaintiff (hereinafter referred to as plaintiff). Plaintiff filed a suit for money claim in the sum of Rs.5,62,845.46. Plaintiff averred in the plaint that he is a transporter. There was an emergency work projected by the defendants for transport of coal by road from New Majri Colliery to Paras power station and therefore they made an enquiry with the plaintiff under letter dated 25.4.1979 in which it was stated that the distance between new Majri Colliery to Paras power station was 263 kms. Plaintiff submitted his offer which was accepted as per terms and conditions enumerated in the letter dated 28.4.1979. The transport work was to be completed by the end of June 1979. The rate agreed to be paid was 70 paise per tonne per kilometer. The work being short term emergency, there occurred a mutual mistake amongst the parties in mentioning the distance as 263 kms. when the actual distance was 307 kms. In other words, the distance of 44 kms. was shown less. The plaintiff completed the work in between 30th April 1979 and 9.6.1979 and transported the entire coal. When the plaintiff submitted his first bill on 14.5.1979 he had come to a concrete conclusion that the actual distance was 307 kms. and not 263 kms. And therefore he had submitted the bill accordingly mentioning that he was submitting the bill under protest as there was a major variation in the distance mentioned in the work order and the actual distance. He submitted the second bill with similar protest. Since he required money he accepted the payments under those bills in order that the work was not hampered. Thereafter he submitted the subsequent bills. He then demanded money from the defendants for the difference of 44 kms. of distance by issuing notice, but to no avail. Finally he filed the suit and claimed the principal amount of Rs.4,14,643.46 at the agreed rate for excess 44 kms. and interest thereon at 12% per annum amounting to Rs.1,48,200/-, thus making the total of Rs.5,62,843.46. He also made a prayer vide prayer clause (b) requesting the Court to rectify prayer clause (a)as mentioned in the letter dated 28.4.1979 by exercising power under Section 26 of the Specific Relief Act.

3. The defendants filed their written statement and denied the claim in entirety. They stated that enquiries were made from many others including the plaintiff for making transport of coal to the power station at Paras and finally the work order was issued which was accepted by the plaintiff without any protest. The work order clearly indicated the distance of 263 kms. which the plaintiff accepted. Having accepted the said distance and the rate etc. the plaintiff was estopped from making such a bogus claim. There was no question of verification of shortest distance or the said mention of distance of 263 kms. The plaintiff cannot unilaterally modify the contract, which he sought in the suit and that could not be done in the suit. The plaintiff started making grievance only after the lapse of two years and never before and, therefore, the entire claim was after thought. The plaintiff submitted his bills according to the distance of 263 kms. and accepted the same. He never moved the higher authorities or the chief Engineer. According to him if there was any dispute about the distance, the plaintiff cannot be allowed to turn around and make a claim which is wholly unjustified. The Court cannot change the agreement between the parties. The plaintiff never changed the work order. None compelled the plaintiff to complete the contract, particularly when he submitted his first bill and also accepted the same. He was free to abandon the contract. He did nothing but lodged the claim in question. The defendants thus prayed for dismissal of the suit.

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