Patna High Court
State Of Bihar vs Kailash Pd on 14 July, 2010
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
FIRST APPEAL No.349 of 1979
Against the judgment dated 25.11.1978 and the decree
following thereupon signed on 07.12.1978 by Shri Arun
Chandra Das, the learned First Additional Sub ordinate Judge,
Muzaffarpur in Money Suit No. 59 of 1976/7 of 1978.
THR STATE OF BIHAR & Ors
.----------------------Defendants/Appellants
Versus
KAILASH PD
-------------------------Plaintiff/Respondents)
For the appellant : Mr. Anil Kumar Jha, Sr. Advocate, G.A.-II
For the respondent : None
Dated: The 22nd day of July, 2010
PRESENT
HON'BLE MR. JUSTICE MUNGESHWAR SAHOO
--------------
JUDGMENT
Mungeshwar (1) The state of Bihar and the authorities have filed this First Appeal
Sahoo,J.
against the judgment dated 25.11.1978 and the decree signed on 07/12/1978
by the learned First Additional Subordinate Judge, Muzaffarpur in Money Suit
No. 59 of 1976/7 of 1978 decreeing the plaintiff/respondent's suit for recovery
of Rs 11409/- with interest at the rate of 6 per cent per annum.
(2) The plaintiffs/respondents filed the aforesaid Money Suit claiming
the reliefs for recovery of Rs 11409/- on the ground that he was a contractor
and his tender being the lowest tender for constructing the Kumbha-Bajpatti
road was accepted by the appellant. Prior to the execution of agreement, the
plaintiff visited the spot and found that there was a bridge after a distance of
one mile and the said bridge was not fit for crossing the heavy vehicles.
According to the plaintiff, he was to construct 1 ½ kms road but because of
the bridge, it was not possible for him to construct road beyond the said
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bridge unless the bridge is repaired so that heavy vehicles could pass over it.
The matter was discussed with the appellants and then a conditional
agreement was executed and the appellants assured that the department
would reconstruct/repair the bridge before the plaintiff would require the use
of the bridge. The plaintiff was required for constructing the road up to bridge
within June, 1974.
(3) The further case of the plaintiff is that the bridge, in question, was
never either reconstructed or repaired by the appellants as a result of which
the plaintiff could not complete the work beyond the bridge. He completed the
work of metalling the road up to the bridge only. Therefore, the department
closed his work and final bill was passed on 29/8/1975 and payment for
metalling the road up to the bridge was made to the plaintiff. It is, further
pleaded that the defendant/appellant did not return the earnest money of Rs
7962/- deposited by the plaintiff/contractor nor paid the security money
deducted from his own account bill on the ground that Accountant General
objected to it. According to the plaintiff, it was not because of fault on the part
of the plaintiff but because of fault on the part of the defendants/appellants
the work beyond the bridge could not be completed and, therefore, the
defendants/appellants are liable to return the said amount. Notice u/S 80 CPC
was served and then when the defendants did not care even to reply, the
plaintiff filed the suit.
(4) The appellants appeared and filed their contesting written
statement. Besides taking various ornamental pleas, mainly it is contended
that the plaintiff was allotted the metalling work for 1.75 miles for Rs 94,605/-
and accordingly, an agreement in F2-109/73-74 was executed on 25.3.74.
The lame excuse made by the plaintiff for non completion of work is not
acceptable. The plaintiff had visited the site and in open eyes after visiting the
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bridge entered into the agreement. The allegation that conditional agreement
was made is false and denied. The plaintiff applied seeking time to finish the
work within June, 1974 up to the bridge and to complete the whole work
within June, 1975 but he completed up to bridge side by 13th July, 1974 and
did a few work beyond the bridge, without completing the same. The
Executive Engineer earlier restricted the plaintiff to work up to bridge only for
Rs 50,000/- but because the plaintiff subsequently agreed to complete the
whole work, the proposal to construct up to the bridge was suspended.
(5) The further case of the defendants is that the other tenderor was
granted the same work for same length of the road who completed the work
and no objection was raised by him that the bridge was in such a dilapidated
condition or that heavy vehicle would not pass. Since the plaintiff did not
complete the work as agreed by him, he cannot be allowed to raise all these
afterthought pleas. The value of the work done by the plaintiff was assessed
at Rs 43089/-. The remaining work was to be completed through different
agencies and, therefore, the defendants incurred a loss of Rs 23,474/-.
(6) The further case is that during the audit, Accountant General, Bihar
suggested for action against the plaintiff and the plaintiff was knowing that the
State of Bihar shall take action for realising damage from him, so, he filed this
suit with false pleas. The department is bound to comply the audit objection.
The claim of the plaintiff is ill founded and the interest claimed is exaggerated.
The plaintiff himself could not complete the work because of paucity of fund,
and therefore, the defendants are not responsible.
(7) On the above pleadings of the parties, the learned court below
framed as many as 8 issues. Out of 8 issues, issue Nos. 5 & 6 are as follows:
Issue No.5: Whether the Madhuban bridge was impassible for
heavy traffic and whether it requires reconstruction or repair? &
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Issue No.6- Whether the defendants are responsible for the non-
completion of work by the plaintiff beyond the bridge?
(8) The learned court below after considering the evidences on record
came to the conclusion that Madhuban bridge was impassible for heavy
transport and it requires reconstruction or repair and the plaintiff was
handicapped to complete the work beyond bridge side due to it and on the
basis of these findings, learned court below decreed the plaintiff's suit.
(9) The learned G.A.-II appearing on behalf of the appellant submitted
that the learned court below has wrongly decreed the suit filed by the plaintiff.
According to him, with open eyes, the plaintiff entered into agreement and,
therefore, he cannot be permitted to say that there was any conditional
agreement between the parties and moreover, any oral evidence regarding
terms and conditions of the agreement is barred u/s 92 of the Indian Evidence
Act but the learned court below failed to consider these aspect of the matter
and decreed the suit. The learned G.A.-II further submitted that according to
the plaintiff himself prior to entering into agreement visited the bridge and
thereafter, he entered into the agreement. In such circumstances, now the
plaintiff cannot be allowed to put a condition for performance of the contract
which was not embodied in the contract and say that unless that condition is
performed by the defendants, he will not complete the work as agreed by him
in the agreement. On these grounds, the learned G.A.-II submitted that the
impugned judgment and decree are liable to be set aside.
(10) It may be mentioned here that in spite of service of notice, no
body appeared on behalf of the respondent when this appeal was heard.
(11) In view of the above facts and circumstances and the submissions
made on behalf of the appellant, the point arises for consideration in this
appeal is as to whether there was any assurance by the defendant that the
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bridge will be repaired/reconstructed as alleged by plaintiff and whether the
condition of the said Madhuban bridge was such that no heavy transport
vehicle could pass over it and whether it required reconstruction/repair and
whether because of non repairing of the bridge by the defendants, the plaintiff
could not complete the work?
FINDINGS
(12) According to the plaintiff's case, prior to agreement, he visited
the spot and then could know that the bridge was in dilapidated condition and
heavy transport vehicle could not pass over it. He informed the state
authorities regarding the condition of the bridge and the said
authorities/appellants assured him that the said bridge will be
reconstructed/repaired before the plaintiff could use the same so that the
plaintiffs work will not be hampered. On the contrary, the defendants stated
that there was no such discussion between them and there was no such
condition.
(13) The parties have adduced oral as well as documentary
evidences in support of their cases. Before going to the evidences of the
parties, let us examine the point raised by the learned counsel appearing for
the appellant that the oral evidence to prove the fact that is terms contrary to
the terms and conditions mentioned in the agreement is inadmissible in
evidence in view of section 92 of the Indian Evidence Act.
(14) Section 92 of the Evidence Act provides as follows:-
"92. Exclusion of evidence of oral agreement.- When the
terms of any such contract, grant or other disposition of property,
or any matter required by law to be reduced to the form of a
document, have been proved according to the last section, no
evidence of any oral agreement or statement shall be admitted,
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as between the parties to any such instrument or their
representatives in interest, for the purpose of contradicting,
varying, adding to, or subtracting from, its terms;
Proviso (1):- ..........
Proviso (2):- The existence of any separate oral agreement
as to any matter on which a document is silent, and which is
not inconsistent with its terms, may be proved. In considering
whether or not this proviso applies, the court shall have
regard to the degree of formality of the document.
Proviso (3) to (6) :- " ....................."
(15) Therefore, according to the proviso No.2 of Section 92 , the
plaintiff can prove the oral agreement which was pre condition for
performance of the contract. Therefore, I find no force in the submission of
the learned G.A.II. Here the oral agreement alleged by the plaintiff is not
inconsistent with the terms of the agreement. Now, let us see whether there
was any such discussion and assurance between the parties regarding
construction or repair of the said bridge which was condition precedent. It
may be mentioned here that according to the plaint, after getting the work
order, the plaintiff made repeated requests to repair/reconstruct the said
bridge so that the work may be completed beyond the bridge but the same
was not repaired. P.W.1 in his evidence clearly stated that the bridge was not
fit for passing any heavy transport. He brought this fact to the notice of the
Executive Engineer and Superintending Engineer. They realised the trouble
and assured him that the same will be repaired/reconstructed and they also
assured that if the bridge will not be reconstructed/repair, the plaintiff will be
required to complete the work up to bridge only. In spite of his repeated
requests, the bridge was neither reconstructed nor repaired and so it was
impossible to complete the work beyond the bridge so he left the same. On
the otherhand, the defendants witnesses i.e. D.W. 1, 6 & 10 have said that
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the bridge was not closed for passing of heavy vehicles. From perusal of Ext-
2, the letter written by D W 1 himself, it appears that plaintiffs have placed his
difficulties at the time of execution of agreement. Ext-2/n is the letter written
by Superintending Engineer dated 31.03.1974 to the Executive Engineer.
From perusal of this letter, it appears that it is mentioned that the plaintiff
contractor had put condition at the time of executing the agreement that if the
bridge in question would be repaired only then he would be able to complete
the work which was confirmed by the Superintending Engineer. Ext-2/O is
proposal regarding this fact written by Executive Engineer which was
confirmed by the aforesaid Ext-2/n. The another letter being Ext-2/p dated
26/03/1974 by Executive Engineer to the Superintending Engineer also
disclosed the same fact. D.W. 6 is the Executive Engineer who has given this
proposal. Now, therefore, although there is denial on the part of the
defendants that there was no such proposal that the plaintiff could complete
the work only after repair/reconstruct the bridge but the documents referred to
above speaks themselves. Apart from this, it may be mentioned here that
there is no specific denial in the written statement of the defendant to the fact
that the heavy vehicle could not pass on the said bridge. Therefore, since the
fact pleaded by the plaintiff that heavy vehicle could not pass over the bridge
stands admitted and needs no proof.
(17) The plaintiff has proved many letters showing the
correspondence between the parties regarding the reconstruction/repair of
the alleged bridge. From perusal of Ext-2/f and Ext-2/p, it appears that it is
mentioned there that the bridge could not be repaired because of paucity of
fund. As stated above, the Ext-2/n, 2/o, 2/p shows that Madhuban bridge was
very weak but it could not be repaired because of paucity of fund. This Ext-2/f
is dated 24.9.1976. No doubt, D.W. 10 the then S.D.O. in charge of the work
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in his evidence has stated that prior to March, 1975, the bridge was repaired
but this part of oral evidence is belied by Ext-2/f and Ext-2/n.
(18) From the discussion of the oral as well as documentary
evidence as discussed above, it appears that there are oral evidence Vs. oral
evidence. In such circumstances, the documentary evidence are more
important. Moreover, in the present case, the documentary evidences
produced by the plaintiff-respondents are never denied. The genuineness of
the said documents are not challenged. Moreover some of the documents
are in the pen of the defendants. As discussed above, these documents
amply prove the fact that prior to entering into agreement, the plaintiff was
assured that the Madhuban bridge shall be repaired / constructed by the
defendants prior to the completion of the metalling of the road by the plaintiff
up to said bridge. The said documents as discussed above also prove the
fact that the bridge was in dilapidated condition but because of paucity of
fund, the defendants did not repair / reconstruct the bridge and, therefore, the
plaintiff could not complete his work beyond the said bridge.
(19) In view of my above discussion, I find that the plaintiff has
been able to prove that the defendants assured him that the bridge in
question will be repaired / reconstructed as alleged by the plaintiff and also I
find that Madhuban bridge was in such condition that no heavy transport
vehicle could pass over it and it required reconstruction / repair and because
of non-repairing of the bridge, the plaintiff could not complete the work. In
other words, the defendants made the work impossible to be completed by
the plaintiff. The finding of the learned Court below of these points, therefore,
needs no interference as such they are confirmed.
(20) The plaintiff in the plaint has given the calculation regarding
the amount claimed in separate schedule. After considering the materials
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available on record, the learned Court below found that the plaintiff is entitled
to a decree for a sum of Rs.7808/- only and granted the decree with interest
at the rate of Rs.6 per cent per annum. Against that part of the finding, the
plaintiff has not filed any cross-objection. The appellants have also not
addressed the Court on that issue. Accordingly those findings of the Court
below are also confirmed.
(21) In the result, I find no merit in this First Appeal and
accordingly, this First Appeal is dismissed. In the facts and circumstances of
the case, the parties shall bear their own costs.
Patna High Court, Patna (Mungeshwar Sahoo,J.)
Dated 22nd July, 2010
AFR/ Sanjeev