BHARGAVA, J.—This is an appeal by the State of Rajasthan against the judgment and decree dated 31st October, 1961, of the Senior Civil Judge, Jaipur City No. 1, decreeing the plaintiffs claim for Rs. 16653/-.

2. Respondent Motilal was given a contract for constructing five miles of road on the Kothari, Karoli and Hindaum route on 29-12-53. The work was to be completed upto 20th March, 1955 Respondents case in the court below was that he had completed the work within the stipulated time and the work was carried out according to the directions of the officers in charge, that payment of eight running bills amounting to Rs. 93,816/- was made to him and though the final bill for Rs. 7116/- was prepared, its payment was not made. Similarly, the appellant with held payment of the amount of earnest money that is Rs. 1400/-and further sum of Rs. 8137/- which was deducted as security amount from his running bills. Thus he was entitled to recover Rs.16-653/- from the appellant.The said amount was not paid in spite of several reminders. On the other hand, objections were raised about the quality of the material used and the workmanship, though these objections were not tenable because he collected the stone soling and ballast from one mile lead according to the terms of the contract and the material was also approved by the officers who were supervising the work. It was further alleged that he had used soft stone for soling, which was available within a lead of one mile. It was also alleged that soling was not done on some portions of the road because the surface was rocky and the officers supervising the work did not permit him to do so. As for the reasons the road gave way, it was explained in the plaint that it was due to the unexpected heavy traffic of trucks and carts with heavy loads which plied on the road and the Public Works Department in spite of this did not get the road painted by tarcoal. No culverts and cause ways were prepared for protecting the road from the rains. Thus it was alleged that there was no defect of material or workmanship in the construction of the road and it had given way on account of other reasons for which respondent could not be held responsible. Since his final bill had been prepared and the work had been fully checked up and approved, he was entitled to the suit amount.

3. The suit was contested by the appellant and it was stated that the work was never done according to the directions of the officers nor was it done according to the agreement. It was stated that plaintiff was to use stone 6" thick of approved quality free from Kutcha stuff for soling purposes and similarly he was to use ballast l-1/2" gauge of approved quality free from Kutcha stuff and dust. However, he did not use the material of the above quality but used Kutcha stuff which was not approved. Soling material was not upto standard and consolidation work was also defective. The ballast was loosely packed and the work was of worthless quality and that is why the road gave way. It is stated that the specifications and the quality of the material to be used was an essential part of the agreement and since the plaintiff did not comply with the above terms of the agreement, he was not entitled to any sum under the contract. It is stated that even during the progress of the work after the inspection of the Superintending Engineer, it was brought to the notice of the plaintiff that the soling material and the ballast which he had stacked was soft and should be replaced. Validity of the notice under sec. 80 C.P.C. was also challenged.

4. The learned Senior Civil Judge on the above pleadings framed the following issues:

(1) Did the employees of the defendant prepare final bill of the plaintiff as alleged in para 5 of the plaint?

(2) If finding on issue No. I is in favour of plaintiff, were there any defects in the work done by plaintiff as alleged by the defendant?

(3) If there were any defects in the work done by the plaintiff, what amount is the

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