APPEAL FROM ORIGINAL DECREE NO.81 OF 1984 Against the Judgment and Decree dated 23rd of June, 1979 passed by the 4th Additional Subordinate Judge, Sasaram in Money Suit No.79/1 of 1975/1978. ------------ 1. PRABHA SINHA, WIFE OF LATE RADHIKA RAMAN PRASAD SINHA. 2. AJIT KUMAR SINHA, SON OF LATE RADHIKA RAMAN PRASAD SINHA. 3. PUSHPA SINHA, WIFE OF NIRBHAY KUMAR VERMA, DAUGHTER OF LATE RADHIKA RAMAN PRASAD SINHA. 4. ASHA KUMARI SINHA, DAUGHTER OF LATE RADHIKA RAMAN PRASAD SINHA. ALL ARE RESIDENT OF VILLAGE-ATRI, POLICE STATION- NASIRI GANJ IN THE DISTRICT OF ROHTAS(PREVIOUSLY DISTRICT-SHAHABAD). AT PRESENT NEW AREA DEHRI- ON-SON, P.S. DEHRI-ON-SON, DISTRICT-ROHTAS. ………………………………………………………..APPELLANTS. Versus 1. STATE OF BIHAR THROUGH COLLECTOR, ROHTAS (PREVIOUSLY DISTRICT-SHAHABAD). 2. SUPERINTENDING ENGINEER, SONE BARAGE CIRCLE, INDERPURI, P.S. INDERPURI, DISTRICT-ROHTAS (PREVIOUSLY SAHABAD). 3. SRI S.D.N. VERMA, EXECUTIVE ENGINEER, SONE BARAGE DIVISION NO.1, P.S. INDRAPURI, DISTRICT-ROHTAS (PREVIOUSLY DISTRICT-SHAHABAD). 4. SRI BINDESHWARI PRASAD SINGH, EXECUTIVE ENGINEER, THE THEN EXECUTIVE ENGINEER, SONE BARAGE DIVISION NO.1, AT PRESENT EXECUTIVE ENGINEER AT BHABUA WESTERN HIGH LEVEL CANAL, AT BHABUA DIVISION, P.S. BHABUA, DISTRICT-ROHTAS (PREVIOUSLY SHAHABAD). 5. SRI RADHE SHYAM SAH, S.D.O. SONE BARAGE AT BEDA COLONY, P.S. SASARAM, DISTRICT-ROHTAS (PREVIOUSLY SHAHABAD). 6. SRI S. MISHRA, SECTIONAL OFFICER, SONE BARAGE AT BEDA COLONY, P.S. SASARAM, DISTRICT-ROHTAS (PREVIOUSLY DISTRICT-SHAHABAD). 2 ….DEFENDANTS IN THE COURT BELOW…..RESPONDENTS. -------------- For the Appellants : Mr. Shashi Dhar Jha, Advocate. For the State : Mr. Deepak Kumar, AC to GP-III. ------------- P R E S E N T THE HON'BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan,J: The plaintiff, being aggrieved and dissatisfied with the judgment and decree dated 23rd of June, 1979 passed by the 4th Additional Subordinate Judge, Sasaram in Money Suit No.79/1 of 1975/1978, whereby and whereunder the Money Suit aforesaid has been dismissed on contest, has preferred this appeal. 2. The short facts of the case are detailed hereinafter: Money Suit No.79/1 of 1975/1978 has been filed in forma pauperis for grant of a decree for a sum of Rs.41909.61/- (Rupees Forty One Thousand Nine Hundred Nine and Paise Sixty One Only) to be realized from the defendants jointly or severally. The plaintiff claims to be a Contractor having worked during the year 1968-69 to 1970 under the department of River Valley Tenu and Sone Project 3 of the State of Bihar. Tenders were invited for excavation and turfing of Western High Level Canal at Indrapuri. The tender of the plaintiff was accepted and in pursuance thereof an agreement bearing Agreement No.24 of 68/69 was entered into and accepted by the plaintiff as well defendant no.4, the then Executive Incharge, Sone Barrage Division, Indrapuri, on behalf of the State Government on 14.3.1969. The estimated cost was Rs.43202.51/-(Rupees Forty Three Thousand Two Hundred Two and Paise Fifty One Only) and the plaintiff had deposited a sum of Rs.900/-(Rupees Nine Hundred Only) as initial security deposit before the commencement of work under the written order dated 20.3.1969. Pursuant to the aforesaid order, the plaintiff started the work on 30.6.1969. It is claimed that, as per the agreement, the rate of earth work was Rs.39.95/-(Rupees Thirty Nine and Paise Ninety Five Only) per thousand C.Ft. The plaintiff claims to have done the earth work to the tune of 1208950 C.Ft. and also claims to have done the extra work to the tune of 291000 C.Ft. beyond the agreement upon the direction of the Executive Engineer and the cost of the former work comes to the tune of Rs.48297.55/-(Rupees Forty Eight Thousand Two Hundred Ninety Seven and Paise Fifty Five 4 Only) against the estimated cost of Rs.43202.51/-(Rupees Forty Three Thousand Two Hundred Two and Paise Fifty One Only). It is alleged that the plaintiff was paid at the rate of Rs.37/- (Rupees Thirty Seven Only) per thousand C.Ft. as against the contract rate of Rs.39.95/-(Rupees Thirty Nine and Paise Ninety Five Ony) per thousand C.Ft., i.e., Rs.2.95/ (Rupees Two and Paise Ninety Five Only)- per thousand C.Ft. less than the contract rate. The further allegation is that since the soil was hard mixed with the stone pebbles and the contract rate was not commensurate with the nature of work labour and also there was rise in prices, the plaintiff approached the then Executive Engineer, Sone Barrage Division No.1, Indrapuri, in the year 1970 showing his inability to execute the further work with the lesser amount allowed and to maintain the schedule of time unless the contract rate is raised. However, when the defendants did not pay any heed to the request of the plaintiff, the plaintiff had to stop the work and make a request for final measurement of the work done so far. However, measurement of the work done was taken by the defendants and their office staff several times and on each subsequent measurement the figure of work done became lesser and lesser. For example, first 5 measurement taken for the earth work done up to 20.2.1970 was recorded to the tune of 120,8950 C.Ft.. However, the Executive Engineer (Defendant No.4) took the measurement again on 22.12.1970 and found the total quantity of earth work to the tune of 9,61,798 C.Ft.. On 22.6.1971, the Board consisting of officials of the department took the measurement of the work done and arrived at the figure of 906,354 C.Ft. It has, thus, been stated in the plaint on behalf of the plaintiff that the variation in the figures was due to the siltation in April, May and June. According to the plaintiff, the figure of siltation has been shown to be too low as the authorities have picked up the point for determination of siltation according to their sweet will and not according to the plaintiff. It is further case of the plaintiff that the plaintiff is entitled to realize Rs.3578.48/- (Rupees Three Thousand Five Hundred Seventy Eight and Paise Forty Eight Only) as on the initial security deposit 8% was deducted from his bills so far paid and credited to the Contractor‟s Security Deposit. The plaintiff claims that as per his work done total amount comes to the tune of Rs.48297.55/-(Rupees Forty Eight Thousand Two Hundred Ninety Seven and Paise Fifty Five Only) at the rate of Rs.39.95/- (Rupees Thirty Nine and Paise Ninety Five 6 Only) per thousand C.Ft. for total work of 1206950 C.Ft. and an additional sum of Rs.11625.45/-(Rupees Eleven Thousand Six Hundred Twenty Five and Paise Forty Five Only) for the extra work done to the tune of 291000 C.Ft.. However, the plaintiff has only been paid Rs.44731/-(Rupees Forty Four Thousand Seven Hundred Thirty One Only). On different accounts the plainitiff claimed a decree for Rs.41909.61/- (Rupees Forty One Thousand Nine Hundred Nine and Paise Sixty One Only). It is worth mentioning here that the plaint was amended subsequently vide order dated 16.5.1978 and relief was added for payment of further extra work done by the plaintiff to the tune of 291000 C.Ft. for an amount of Rs.11625.45/-(Rupees Eleven Thousand Six Hundred Twenty Five and Paise Forty Five Only). The plaintiff has claimed that when the payment was not made upon the repeated requests to the authorities, a notice under Section 80 C.P.C. was also served upon them. However, due to inaction on the part of the authorities, the plaintiff has been compelled to file the Money Suit. 3. The defendants appeared, filed written statement and contested the suit. 4. According to the defendants the plaintiff‟s 7 worked was finally measured by the department on 22.6.1971 and thereafter the plaintiff has been paid Rs.44731/- as „on account payment‟ which is treated to be as an advance. However, the work done by the plaintiff was not of that value rather the value of the work was of Rs.35646.95/- as the plaintiff has only completed the work to the tune of 906353 C.Ft. which was found upon the measurement done by the department on 22.6.1971. The measurement was taken in the presence of the plaintiff and he has accepted the measurement and in token thereof, he had put his signature on the measurement book. He was also allowed a loss on account of siltation which was also accepted by him, which is reflected in the measurement book and after allowing the reasonable loss due to siltation, measurement of the work done by him came to the tune of 906354 C.Ft. on final measurement. The defendants claimed that the plaintiff was found to have taken excess amount of Rs.4610.95/- which he has been asked to make a refund to the department. It is also denied that the authorities had found the soil mixed with Kankar and recommended for further payment of schedule rate of Rs.13.30/- for such type of the soil. As regards to the variation in the depth of cutting, it has been stated that the 8 cutting was to be for an average depth of 6.188 ft. as per the specification of the actual work done with pursuable level, variation and estimate. It has also been stated that the plaintiff by amendment to the plaint has introduced an incorrect and a new case of extra work done which he cannot be legally allowed as the same is barred by law of limitation. It has been denied that the Executive Engineer had given him any direction to do extra work and the plaintiff has done any work beyond the final measurement to the tune of 291000 C.Ft. As regards the cutting of Clause No.3(E) of the agreement, it is alleged that the plaintiff has penned through the said Clause by bringing the Office Staff in collusion. Thus, it is claimed that the plaintiff is not entitled to any relief prayed for and the suit is liable to be dismissed with cost. 5. On the pleadings of the parties, the trial court has framed the following issues for determination on re-cost. (i). Is the suit as framed maintainable? (ii). Has the plaintiff got valid cause of action for the suit? (iii). Is the suit barred by law of limitation? (iv). Is the plaintiff entitled to recover his amount so claimed, if so to what extent? 9 (v). Is the service of notice u/s 80 C.P.C. proper and valid? (vi). To what relief or reliefs if any is the plaintiff entitled? 6. Issue Nos.(iii) and (v) were taken up together by the trial court and it has come to the finding that there is no proper notice under Section 80 C.P.C. and the claim for Rs.16456.05/-(for extra work done and brought by amendment in plaint) was barred by limitation. Again Issue Nos.(ii) and (iv) have been dealt with jointly by the trial court and upon appreciation of pleadings and evidence available on record, it has recorded a finding that since the plaintiff did not complete the work as per the contract, the balance required deduction on security money deposited by the plaintiff and the refund of amount on account of deduction @ 8% from his bill is also not admissible to be paid back to him by way of relief. The court below has come to the conclusion that the plaintiff has been paid the amount for the work done by him and, thus, he has got no cause of action for brining this Suit and is not entitled for a decree prayed for. 7. I have heard the parties and perused the records of the case. 10 8. Upon hearing the parties, in the opinion of this Court, the following questions come out for determination. (I). Whether there was proper service of notice under Section 80 C.P.C.? (II). Whether the amended relief for extra work done by the plaintiff was time barred? (III). Whether the plaintiff is entitled for a money decree as per the plaint for the work done by him and as per the agreement between the parties? 9. Point No.I: Learned counsel for the appellants submitted that a notice under Section 80 C.P.C. was served upon the defendants through his advocate. The office copy of the notice under Section 80 C.P.C. alongwith a copy of the proposed plaint has been brought on record as Ext.4. Ext.3 is the power of the Advocate, who has sent the notice under the instruction of the plaintiff. Exts.7 to 7/C are the addresses on the acknowledgment card of the persons to whom the notice under Section 80 C.P.C. was sent. It is submitted that the court below has wrongly recorded a finding that no proper notice under Section 80 C.P.C. was given on account of the 11 fact that the signature of the addressee receiving the notice had not been proved. It is submitted that the defendants have not denied receiving the notices under Section 80 C.P.C. rather it is quite apparent from Ext.6/H and 9 which is a letter written by the Executive Engineer, Sone Barrage Division No.1, Indrapuri to the Superintending Engineer, Sone Barrage Circle, Indrapuri, under Memo No.5540 dated 16.12.1972 that the department has received the notice under Section 80 C.P.C.. Thus, it is contended that merely on some hyper- technical ground the trial court has come to the conclusion that the proper notice under Section 80 C.P.C. was lacking. Learned counsel has placed reliance upon the certain decisions of this as well as the Apex Court. It is submitted that the Apex Court in the State of Andhra Pradesh Vs. Gundugola Venkata Suryanarayana Garu (A.I.R. 1965 SC 11) has held that every venial error or defect in notice would not be fatal. In the case of Sahdul Mian Jan Mohammad Mian Vs. Union of India (A.I.R. 1968 Patna 188), a learned Single Judge of this Court has held that notice under Section 80 C.P.C. would not become invalid because of incidental defects or errors. For example, if notice is not signed by the plaintiff, but by another person on his behalf would be valid 12 one. In the case of Ghanshyam Dass and others Vs. Dominion of India and others {(1984(3) SCC 46}, a three Judges‟ Division Bench of the Supreme Court has held that so far as notice under Section 80 C.P.C. is concerned, substantial justice should not be sacrificed for hypertechnical pleas based on strict adherence to procedural provisions. Learned counsel appearing for the State submitted that unless the signature of the addressee receiving the notices is proved, there would be no clear cut proof of service of notice upon addressee. Thus, the court below has rightly held that there is no proper notice under Section 80 C.P.C. However, I find force in the submission raised on behalf of the plaintiff. Learned counsel for the State has not been able to show from the record that there has been denial of receipt of such notice under Section 80 C.P.C. on behalf of the defendants. That apart, Ext.9, which is a letter written by the Executive Engineer, Sone Barrage Division No.I, Indrapuri to the Superintending Engineer, Sone Barrage Circle, Indrapuri, on 16.12.1972 clearly indicates that they have received notice under Section 80 C.P.C. The last paragraph of the aforesaid letter is quoted as under: “Shri Radhika Raman Pd. Sinha has also 13 given notice through Sri Bhanu Prakash Lal, Advocate, Sasaram under section 80 C.P.C. and it is requested that an early decision in the matter may kindly be taken.” In the above view of the matter, in my opinion, the trial court has erred in holding that the notice under Section 80 C.P.C. was not proper merely on technical ground. I, therefore, hold that there was sufficient and proper notice under Section 80 C.P.C. 10. Point No.II: The trial court has held that so far as the additional relief brought by amendment of plaint on behalf of the plaintiff is concerned, that is time barred. However, learned counsel for the appellants has submitted that the suit was filed in the year 1975 and thereafter a petition for amendment of plaint has been filed in the year 1978 which stood allowed on 17.2.1979. It is submitted that once the amendment has been allowed after hearing the defendants, they cannot be allowed to raise the issue of the relief being time barred. Learned counsel has placed reliance upon some decisions of the Supreme Court as well as this Court in this regard reported in A.K. Gupta and Sons Ltd. Vs. Damodar Valley 14 Corporation (A.I.R. 1967 SC 96), Indu Bhushan Chakravarty Vs. Hareram Narayan Deo and others (1972 BLJR 582) and Sheo Prasad Santhelia and another Vs. State of Bihar and others (A.I.R. 1975 Patna 321) to show that the amendment can be allowed even after filing of cases and that should not be dismissed on the ground that they are barred by limitation. Learned counsel for the State, however, submitted that allowing such amendment would only mean that such statement or relief has become part of the plaint. However, the defendants would have every right to controvert those statements of the plaint. The defendants have taken plea in the additional written statement filed pursuant to the aforesaid amendment that such relief is barred by limitation. Thus, it has been urged that the court concerned has rightly held that the additional relief sought by the plaintiff is barred by limitation. I find force in the submission raised on behalf of the State. The plaintiff‟s pauper application was filed on 14.8.1972 and was allowed on 3.4.1975. The trial court has held that the suit, thus, would be deemed to have been filed on the date of filing of the pauper application, i.e., on 14.8.1972. Therefore, the subsequent claim introduced in the plaint by 15 way of amendment is clearly barred by law of limitation being more than three years old. I find no error in the aforesaid finding recorded by the court below. The court below has correctly come to the conclusion that the date of filing of the pauper application would be 14.8.1972. Even if the date of allowing such pauper application, i.e., 3.4.1975, is also taken into account, the plaint having been amended on 16.5.1978 and the cause of action definitely being prior to 14.8.1972 and well within the knowledge of the plaintiff before the filing of plaint, the claim would be time barred. That apart, such claim cannot be allowed also on account of the fact that a notice under Section 80 C.P.C. was served alongwith the copy of the proposed plaint to be filed for institution of Money Suit and learned counsel for the plaintiff could not show that the same also contained the claim for extra work done by the plaintiff. Thus, in the opinion of this Court, there was no notice also under Section 80 C.P.C. with regard to the extra work done as claimed by the plaintiff. The decisions upon which the plaintiff has placed reliance have laid down that for the same cause of action certain amendment can be allowed in the plaint. However, if the plaintiff is trying to create entirely a new case that would amount to filing of a new plaint, there 16 same cannot be allowed. In the opinion of this Court, allowing such amendment in the plaint does not amount to allowing the relief itself and the defendants have every right to controvert the allegations set up after amendment by filing additional written statement which they have done and have taken a point that such claim is barred by law of limitation. Thus, in my view, the court below has not committed any error in holding that the claim of the plaintiff for doing extra work introduced by amendment in the plaint is barred by law of limitation. That apart, there was no notice under Section 80 C.P.C. also for such additional claim and there is no case of the parties that there has been waiver of such notice by the defendants. 11. Point No.III: Learned counsel appearing for the appellants has vehemently argued that they have put their signature on the final measurement with objection and, therefore, the court below has erred in holding that since the plaintiff has accepted the measurement, now, he cannot claim that final measurement was not proper. Learned counsel submits that in the final measurement taken on 22.6.1971, it has been recorded that the work has been done to the tune of 906354 17 C.Ft.. However, the plaintiff has actually done the work to the tune of 1208,950 C.Ft. up to 22.2.1970 which is supported by Ext.1/H. Ext.1/G(M.B. No.389 page 33 to 34), Ext.6/J(M.B. No.389 page 35), Ext.1/H(M.B. No.596 page 1 and 2), Ext.1/J (M.B. No.596 from page 20 to 26), Ext.1/O(M.B. No.566 page 1) are the measurements taken by the department on different occasions with regard to the work done by the plaintiff. Ext.1/J is measurement made by the Board Members. Ext.C is the certificate given by the Members of the Board after the measurement. Ext.1/K is the endorsement of the plaintiff made after the measurement of the Board to the effect that the measurements were taken in his presence and he agreed with the measurements. Ext.8 is a word „under protest‟ added in a different ink after the written endorsement of the plaintiff. Upon appreciation of evidence on record, oral as well as documentary, the trial court has come to the conclusion that the plaintiff could not prove that due to siltation in the bed of canal there was variation in the measurement and the story that heavy siltation was on account of the built through Ahars cannot be believed. The Board‟s measurement was final measurement in this case and 18 the plaintiff has made his endorsement that he agreed with the measurement done by the Board. The trial court has also come to the conclusion that the word „under protest‟ is in different ink after his endorsement which is clearly a subsequent insertion and, thus, cannot be of any value and the assertion of the plaintiff that the measurement was arbitrary and during the time of the measurement he was not present is highly unbelievable. The court below has held that the measurement by the Board regarding the earth work done by the plaintiff was correct measurement and there is no case that he has not been paid for the work measured by the Board. Thus, it has been held by the court below that the plaintiff does not have any cause of action and, accordingly, the suit has been dismissed. In the opinion of this Court also, the learned counsel for the appellants could not show from the record that the plaintiff has not been paid for the work done by him and, thus, there is no error in the finding of the court below that the plaintiff does not have any cause of action to bring the suit. In the above view of the matter, this Court also holds that the plaintiff has not been able to show that he has got valid cause of action for bringing the suit and is entitled to 19 recover the amount so claim. 12. Accordingly, this Appeal is dismissed. However, there would be no order as to cost. ( Dr. Ravi Ranjan, J) Patna High Court, Patna. Dated: The 29th of of June, 2011. Pradeep Srivastava/N.A.F.R.