B.P. Dharmadhikari, J

1. By this appeal filed under Section 96 of the Civil Procedure Code, the appellant State has questioned the judgment and decree passed by the Civil Judge, Senior Division, Yavatmal in Special Civil Suit No. 4/1981 on 31.12.1990, decreeing the suit of respondent/plaintiff for amount of Rs. 61,41,048/& rejecting appellant/defendant's counter claim of Rs. 5,00,000/. Trial Court has directed the appellant/defendant to pay interest at 12% p.a., from the date of suit till realization of the amount. This Court has admitted the appeal on 02.05.1991 and after hearing both the sides, stayed the execution of the decree on 28.10.1991. This stay order was sought to be reviewed by filing Civil Application No. 782/1992 which is rejected on 08.12.1993. Respondent (original plaintiff) then approached the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 324/1995 and it was dismissed on 02.01.1995. On 08.12.1993, while rejecting another review application this Court had directed expeditious disposal of the appeal.

2. We have heard Shri C.S. Kaptan, learned Special Counsel for the appellant/defendant State. He has taken us through entire material on record in an attempt to persuade us to comprehend injusticedone to the defendants. We, therefore, find it necessary to reproduce his arguments in little details. Shri Anand Parchure, learned Counsel has opposed him on behalf of the respondent/plaintiff contractor.

3. Shri Kaptan, learned Counsel at the outset has pointed out that suit claim was only for Rs. 18,86,564/& thus the decree granted is for amounts not claimed by the plaintiff. He further states that it was basically a suit for accounts and as such suit by a contractor is not maintainable, it needed dismissal. The plaintiff accepted receipt of entire money for work executed by him in accordance with the contract at Exh.62 between the parties, in pursuance of 12th running bill raised by him. After 12th running bill, he abandoned the work and it was completed departmentally. In view of his admission, the suit could not have been decreed. The learned Counsel states that a document referred to as revised estimate or rerevised estimate, not duly proved and not exhibited, has been made the basis by the plaintiff for pressing his claim. That document at Article-I has been accepted by the Trial Court ignoring the mandate of Section 63 read with Section 65 of the Evidence Act, and by treating rates therein as applicable, the suit has been decreed. His contention is, the contract at Exh.62 never underwent any change and still by placing reliance upon an inadmissible piece of evidence, the suit has been decreed. He contends that all leads and lifts were included in contract rate agreed between the parties and Clause 38[2] of document at Exh.62 also took care of excess work. In this situation, the Court below has committed an error in relying upon the documents which did not bind the parties & which did not regulate the work executed by the plaintiff.

4. He contends that the tender advertisement in this respect was published on 03.11.1976 and offer of plaintiff 10% above the estimated rate fixed in tender was accepted. Accordingly agreement at Exh.62 was reached between the parties on 24.06.1977. The work was to be completed by 30.12.1978. Plaintiff stopped the work on 01.04.1978 and again continued with it from 16.10.1978. On 12.02.1979, he stopped the work. On 25.7. 1979, he issued notice under Section 80 CPC, and thereafter on 12.11.1979 there were some negotiations between the plaintiff and the defendants before the Hon'ble Minister. On 26.11.1979, he again resumed work. On 23.01.1980, 12th running bill was paid to the plaintiff and from 016.03.1980 he abandoned the work. He invites attention to the evidence of plaintiff to urge that at the time of abandonment, he had completed about 50% of the work, and in this background he invites attention to paragraph no.31 in plaint to point out the claim as made. Thi