ORDER :

J.B. Pardiwala, J.

1. This first appeal is at the instance of the State of Gujarat (original defendant) and is directed against the judgment and decree passed by the Second Joint Civil Judge (S.D.) Ahmedabad Rural, Ahmedabad dated 27.8.1987 in the Special Civil Suit No. 153 of 1984 instituted by the respondent herein - original plaintiff for the recovery of Rs. 24,29,550/- towards the work of construction of earthen dam.

2. It appears from the materials on record that the respondent herein - original plaintiff is a registered partnership firm and is engaged in the business of construction. The Executive Engineer, Machhan Nala Project Division Diwada colony floated a tender for the work of construction of an earthen dam masonry spill way and other allied works of the Machhan Nala Irrigation Project. The plaintiff participated in the tender process by offering his bid and ultimately the tender filled in by the plaintiff was accepted by the defendant. An agreement in writing was entered into between the parties in this regard. The work order was issued in favour of the plaintiff dated 10.10.1980 and the contract work was to be completed within nine months i.e. on or before 15.6.1981.

3. However, dispute arose between the parties as regards the work of the contract which ultimately led to the institution of the Special Civil Suit No. 153 of 1984 referred to above.

4. The following issues were framed by the Civil Court at Ex. 13:-

"ISSUES

1. Whether the plaintiff proves that the plaintiff firm is duly registered under the Indian Partnership Act?

2. Whether the plaintiff proves that a regular agreement has been entered into with the plaintiff bearing No. B/2/4 of 1980-81 for the work of constructing?

3. Earthen Dam Masonry Spill Way H.R. and other allied work of Machhan Nala Irrigation Project?

4. Whether the plaintiff proves that there was provision for supplying of rubble by the Department, but the Department could not supply the rubble as per the provision?

5. Whether the plaintiff proves that the Department have committed breach of the terms of the agreement?

6. Whether the defendants prove that the plaintiff firm have no cause of action to file the present suit against them?

7. Whether the plaintiff proves that the amount of Rs. 24,29,550/- found due from the defendant?

8. What order and decree?"

5. The issues framed by the Civil Court referred to above came to be answered as under:-

"My finding on the above issues are as under:

1. In the affirmative.

2. In the affirmative.

3. In the affirmative.

4. In the affirmative.

5. In the affirmative.

6. In the negative.

7. In the affirmative.

8. As per final order."

6. Ultimately the suit filed by the plaintiff came to be allowed. The operative part of the order passed by the Civil Court reads thus:-

"ORDER

The suit is decreed. The defendant do pay Rs. 24,29,550/- (Rs. Twenty four lacs twenty nine thousand five hundred fifty.) to the plaintiff with running interest at the rate of 15% per annum from the date of the suit till realisation. The defendant do also pay the cost of the suit to the plaintiff and shall bear its own cost. Decree be drawn accordingly."

7. Being dissatisfied with the aforesaid decree passed by the Civil Court the appellant is here before this Court with the present appeal.

8. Mr. Rakesh Patel, learned AGP appearing for the appellant invited the attention of this Court to the issue No. 4 framed by the Civil Court referred to above. Mr. Patel, the learned AGP concentrated more on the issue No. 4 while questioning the legality and validity of the decree passed by the Court below. The issue No. 4 is with regard to providing of rubble by the Department to the plaintiff. It appears that the case of the plaintiff is that as per the contract the rubble was to be provided by the Department but as the Department failed to provide the rubble, he had to purchase the rubble from the open market at the rate of Rs. 60/- per metric ton. The learned AGP would submit that the plaintiff could not have pur