P L D 1960 (W (PLP)

The plaintiff has filed this suit against the defendants for the recovery of Rs. 76,678 as damages etc. On the 3rd of September 1953, the plaintiff's tender for construction of 150 Boys Students Hostel of Civil Hospital, Karachi was accepted by the Chief Engineer, Pak P. W. D. Under the terms of the contract the plaintiff had to start work after dismantling the old existing superstructure on the site and complete it within seven months. The plaintiff completed the entire work but claims additional amount of Rs. 43,211 at 12 per cent. on the tender rate on account of the increased cost of construction arising from the change of circumstances viz., non‑use of the old material of the old superstructure and non availability of open space on the site for the stacking of sand, concrete and other material for the construction. He also claims Rs. 13,867 as balance for the extra work carried out under the directions of the Executive Engineer. He further claims Rs. 19,600 as damages for losses sustained in maintaining estab ))shpent for 9ver twenty mogths instead of t(Ie fixed period 9f seven months at Rs. 50 per day for 13 months. In all the plaintiff claims Rs. 76,678 from the defendants in respect of the above‑mentioned items. The claim in dispute on 11‑6‑1956, under the terms of the agreement was referred to the arbitration of Mr. M. Y. Moghul, Superintending Engineer, Pak P. W. D., but as he failed to give the award within the statutory period, Inamullah, J. by an order dated 8‑8‑1957, refused to stay the proceedings in the suit under section 34, Arbitration Act and allowed the suit to proceed on merits. The defendants have resisted the suit on the ground that the claim is not maintainable under the terms of the agreement. They not only deny the claim but also deny any liability to pay any compensation for the alleged losses claimed due to the increased cost of construction. They contended that the rates on which the extra work was paid are fixed and settled in accordance with the terms of the contract and the plainti0' is not entitled to any extra claim on it. The claim in lieu of maintaining staff for 13 months is also denied. They claim that the suit is barred by limitation and the plaint is liable to be rejected as the notice under section 80, C. P. C. is defective. On the pleadings of the parties the following issues were framed on 19th December 1957 (1) Can the plaintiff claim loss or damages from the defen dants in the sum of Rs. 19,600 or any other amount ; and does such a claim lie under the Contract ? (2) (a) Is the plaintiff entitled to the alleged 12 per cent. increase in the tender rate in terms of the agreement as claimed by him and is such demand in the sum of Rs. 43,211 tenable under the agreement ? (b) What is the effect, if any, of the recommendations contained in annexure ' B ' to the plaint ? (3) (a) Did the Executive Engineer agree to any rates of Extra work as alleged ? If so, to what effect ? (b) Is the plaintiff entitled to Rs. 13,867 or any part thereof on account of the alleged balance of extra work done ? (4) How has the plaintiff calculated his claims, and is such calculation correct ? (5) Is the notice under section 80, C. P. C. valid and does it include all claims subject‑matter of the suit ? (6) To what relief, if any, the plaintiff is entitled to ? (7) What the decree should be ? During the course of the arguments the plaintiff sought to amend the plaint to claim the amount of Rs. 43,211 in the alternative as compensation for losses suffered by him. He was allowed to amend the plaint. In view of the amended plaint the following further issues were framed on 23rd October 1959 (1) Has the plaintiff suffered loss in the sum bf Rs. 43,211 and can he recover it as damages and compensation ? (2) Is the claim for damages time‑barred ? The plaintiff, in support of his claim, has examined himself as the only witness and the defendants have only examined D. W. 1 Muhammad Yasin (Exh. 9) in support of their case. The plaintiff's claim as stated above consists of three items. I will first deal with the claim of Rs. 4 ,

211. This is based on two grounds. Firstly, that P. W. Bashir Ahmad (Exh. 6), the then Executive Engineer, having accepted it the Government is bound to pay it and secondly, that the defendants are liable to pay it on the principle of quantum meruit. The plaintiff's case is that the contract for the construction of 150 Boys Students Hostel at Civil Hospital, Karachi was entered into on the definite understanding that at first the old super‑structure existing on the site will be dismantled, the debris will be cleared and such quantity of the material of the dismantled super‑structure, as the Executive Engineer would permit, will be used for the proposed construc tion. He contends that the defendants were to be paid Rs. 2 per square foot upto plinth area for this purpose and on these considerations he quoted the rate at a reduced figure in the tender. He also contends that the order to start the work was to be issued only after the whole of the existing structure was dismantled and the site was cleared of the debris. The evidence on the record discloses that on account of the urgency of the work the parties did not strictly adhere to this term of the agreement (Exh. 7/1) and the plaintiff was asked to take up the work in hand before dismantling the old existing structure on the site. Two letters of the plaintiff dated 12th September 1953, and 26th October 1953, Exhs. 7/2 and 7/3 make it perfectly clear that before any formal order to start the work was issued by 26th October he bad raised the pillar work upto the ceiling and was insisting on the defendants that he should be given permission to dismantle the old structure on the site. The plaintiff's tender, according to the defendants' letter Exh. P/ i, dated 3rd September 1953, was accepted on the following terms.: " As per additional condition (page 75) of your agreement formal letter to start the work in question will be issued only after the existing structures are dismantled and on complete clearance of the proposed site of the work. The work being of most urgent nature immediate steps may be taken to dismantle the building." The defendants directed the plaintiff by letter dated 9th November 1953, (Exh. 7/4) to start work from 1‑11‑1953, as appears from its contents reproduced below " The S. D. O. Incharge of the work has reported that the dismantling work to clear the site of the above‑mentioned work has since been completed and you can start the work without any difficulty. You are therefore, informed to please start the work immediately. The date of start of work will be reckoned from the 1st November 1953, i.e., the date you had completed the dismantling work." But this is absolutely incorrect. Both the parties admit that by this time except " Dhoby Ghat " building, no other building was dismantled. The plaintiff, in terms of the contract, called upon the defendants to hand over the rest of` the old building for demolition but the defendants remained silent. This appears to be the cause of the whole trouble between the parties. Plaintiff took up the position that as he had to purchase concrete stone from the market at Rs. 25 per 100 c. ft,, which would have ordinarily by using the stone of the old material cost only Rs. 4, and he had to emply more labour for stacking the building material at a distance from the site, the cost of the construction had considerably increased and the Government should compen sate him for the changed circumstances. On this question the parties carried on correspondence between 26th of October 1953, and 11th of June 1954, Exhs. 7/6 to 7/16. The department's position up to this time was that the stone obtained from dis mantling the Dhobi Ghat was sufficient for concreting and the plaintiff has not used any concrete from outside, and the claim for the non‑availability of the site is unfounded as the whole position was within the knowledge of the plaintiff before sub mission of the tender. Consequently on the 4th of May 1954, by letter Exh. 7/15 the plaintiff informed the department about the stoppage of the work and his intention not to proceed with it unless and until his claim was settled. On the 11th of June 1954, by letter Exh. 7/16 he claimed Rs. 50,000 as compensation for the losses suffered by him. On the 16th of June 1954, the Executive Engineer asked the plaintiff to visit his office in respect of his claims and on 19th June 1954, by letter Exh. 7/18 he called upon him to submit detailed claim for consideration. Obviously this change in the attitude of the department was the result of the intervention of the Superintending Engineer gathered from the letter of the Executive Engineer addressed to the Superintending Engineer on the 6th of July in reply to his letter dated 12th May 1954. Accordingly, the plaintiff submitted his claim on 5th July 1954, by letter Exh. 7/19 and claimed from the department a total sum of Rs, 39,931 as compensation for the difficulties and losses suffered by him on account of the use of material obtained from outside and for stacking the material` at a distance from the site. In the meantime the Executive Engineer on 6th of July 1954, considered the plaintiff's claim dated 27th April 1954, and made the following comment " the letter of start of work was given to the contractor on his own request, when he completed the dismantling of Dhobi Ghat only. There was no compulsion on the contractor to start the work. As per his agreement the contractor was to be given all buildings for dismantling in case of 150 Boys Hostel, but as you are aware the buildings falling on the actual layout were only given to the contractor for dismantling. The contractor was actually put to the same trouble for stacking the material. The claim of the contractor on this part is justified as the contractor was not given the whole build ing for dismantling, under the terms and condition of the agreement." He also recommended for acceptance the plaintiff's claim in respect of 7300 c. ft. concrete stone, as extra expenditure, obtained from outside at Rs. 11 per c. ft. He rejected the plaintiff's clairn for removing the foundation in front wing adjacent to the mortuary. He also rejected 25 per cent. extra claim of the plaintiff and recommended for favourable consideration the plaintiff's claim in respect of only items 2 and

3. On 28th July 1954, (Exh. P/2) the Executive Engineer under the directions of the Superintending Engineer contained in letter dated 10‑7‑1954, examined the plaintiff's claim dated 5‑7‑1954, (Exh. 7/19) and made the following recommendation " As reported to you earlier the contractor could not be given the buildings that come in the layout and adjacent to 150 Boys Hostel for dismantling and clearing of site due to following reasons (1) New Kitchen and Mortuary are still incomplete without which it was not possible to hand over the same to the con tractor for dismantling. (2) The site for new servant quarters is still not available, hence the old quarters could not be vacated without alternate arrangement but the constructions of a wing of 150 Boys Hostel was taken in hand in the limited space available as the same was a very urgent work and the Medical authorities were pressing hard and also the students had represented for the shortage of accommodation to the Minister in charge. In the light of the above facts ‑the contractor had to execute the work in the limited space available and as such he was put to some difficulties as mentioned by him in para. 1 of his letter referred above and this was due to unavoidable circumstances on the part of the Department and as such the contractor might have suffered some loss which cannot be analysed correctly but I consider that he might have sufered loss about 12 per cent. of the total cost put to tender and the same is recommended for consideration claims referred as (2) in the contractor's letter has already been analysed and submitted to you for acceptance vide this office letter No. 2762 dated 6‑7‑54 for an amount of nearly Rs.

800. The Executive Engineer's recommendation in Exh. P/2 to compensate the plaintiff by increasing the total cost of the con struction at 12 per cent., had a healthy effect on the plaintiff. He started the work again but the claim remained pending with the higher authorities and was finally rejected by the Superintending Engineer on 14th September 1955, (Exh. 7/41) in response of further communication by the plaintiff on 13‑8‑1955, contained in Exh. 7/40. It is in these circumstances that the claim for Rs. 43,211 has arisen. As already noticed the plaintiff has based this claim on two grounds : firstly, that the 12 per cent. increase in the tender rate was agreed and accepted by the Executive Engineer and as the Superintending Engineer and/or the Chief Engineer did not reject the recommendation of the Executive Engineer in time and induced the plaintiff to start and execute the work on the recommendation of the Executive Engineer, the department would be deemed to have accepted it and are estopped from contesting and denying it. In the alternative he seeks to recover the said amount as damages for compensation for Josses snfforedr expenses incurred and the difficulties undergone arising from the non availability of the old buildings' materials from demolition and dismantling and non‑clearance of the site before the start of the work. Mr. Lakhani, the learned counsel for the plaintiff, contended that the first ground is based on the rule of estoppel. He referred me to Sarkar's Evidence Act (Tenth Edition) at page

975. Baneswar Randopadhya v. Amulya Charan and others (1) and Abdul Kader Choudhry v. Upendra Lai Barua (2) in support of his contention that silence of a party in the face of duty to speak may creat an erroneous impression inducing another to act on it to his prejudice. The learned counsel argued that the department by keeping silent on the recommendation of the Executive Engineer induced the plaintiff to take up again the construction work in hand. But the plaintiff was not a novice and was an old contractor. He fully knew that the Executive Engineer's report was only a recommendation and was not bound to be accepted by the Department. The matter was under the consideration of the Department. Although the question was finally decided a little late viz. on 14th September 1955, when the Department finally informed the plaintiff that his claim of 12 per cent. has been rejected by the higher authorities but the Superin tending Engineer as early as 15th September 1954, by letter Exh. 7/24 informed the Executive Engineer that the claim of the A plaintiff in this respect is not maintainable as he had to maintain the strength of labour and material according to the requirements of the work and he had not suffered any loss in the reduction of the work. The plaintiff took up the work again when he found the attitude of the Executive Engineer sympathetic. He did it at his own risk and in my opinion the conduct of the Department in rejecting his claim after the lapse of about one year is not such on which the rule of estoppel can be applied. This contention is without force and in my opinion the defendants are not estopped from challenging the claim of the plaintiff in this respect. The alternative ground on which the plaintiff has claimed compensation is that he submitted the tender on the condition that all the old buildings at the site will be demolished first and the serviceable material obtained from them will be used for the construction of the new building, and that he shall be provided with an open space on the site to proceed with the construction of the proposed building. According to him the defendants failed to comply with this condition of the agreement and asked him to proceed with the construction without dismantling the major portion of the old existing structure, on the site. As a result of this he could not use the serviceable material of the old super‑structure and had to obtain concrete stones and other material from the market at a high cost. He had also to stack sand and other material at a distance from the site which resulted in the employment of more labour and increased the cost . of construction. The plaintiff contends that the very basis and the footing on which the contract was given to him was changed by the defendants and in law they are liable to compensate him for this change of circumstances on the principle of quantum meruit, (1) A I R 1925 Cal. 288 (3) 40 C W N 1370 The evidence on the record on this point definitely supports the plaintiff's case. Executive Engineer in his statement before the Commissioner admitted " A large number of buildings were to be dismantled and demolished before this new construction was to start. I refer to condition on page 71 of the agreement that the contractor was to start the work after dismantling the existing structure on the site. It is true that the buildings which were to be dismantled at the site could not no be handed over to the contractor in time because the hospital authorities did not vacate them as they did not find it convenient to do so. It was not possible to dismantle the old buildings because on one side there was a mortuary and on the other side there was the kitchen which were under the use of the Hospital staff. Under these circum stances the contractor could not start the work for the whole building and therefore the work had to be done piecemeal and the stacking of the building material for the work could not be done in the immediate vicinity of the work." Further on he stated " Out of the demolished buildings the contractor may have been able to use stone for his work. I see a letter dated 3‑9‑1953, No. 4636 and it is signed by me and marked as Exh. P/ 1." He also stated " I see letter No. 5097 dated 6‑12‑1954, and the same is signed by me and addressed to the Superintending Engineer Exh. P/3. I see letter No. 2979 dated 27‑6‑1955, and it is signed by me and is marked as Exh. P/4. The recommendations made by me in Exh. P/2 were not covered by the Agreement but the same were made on account of the plaintiff's claim and the difficulties mentioned earlier." In cross‑examintion he admitted " The recommendations made by me in my letter to the Superintending Engineer were made on my discretion and were not binding on Superintending Engineer or Chief Engineer. The acceptance of the claims of the contractor was not within my competence as Executive Engineer. The 12 per cent. increase was based on an analysis and recommendation of the S. D. O. in charge." He stated that " The non‑availability of the site to be dismantled was not due to the negligence on the part of the P. P. W. D. and due to the reason of the non‑availability of the site the extensions were granted." The plaintiff's statement on this point is that " The term of the agreement was that before starting the construction, old building should be demolished and site should be cleared. I was allowed to take the old building structure at Rs. 2 per square foot of the plinth area of the said building and to use it in the proposed construction. The old building included mortuary, kitchen and servant quarter. In all it consisted of six separate buildings. The old super‑structure was not handed over to me for demolition. Originally the work was to commence immediately but later on it was agreed to commence from 1‑11‑

53. The work was to be completed within 7 months. I constructed some portions but declined to proceed further as the old buildings were still in existence and there was danger of the life of the nurses and people attending the mortuary. 1 had to stop work during their presence, which was resulting in heavy losses to me. " This version is also supported by the documentary evidence on the record. Clause 6 of the additional condition of agreement Exh. 7/1 is very clear on this point. The Executive Engineer in Exh. P/2 dated 28th July 1954, accepted this position and stated : ' " The site for new servant quarters is still not available, hence the old quarters could not be vacated without alternative arrangement but the construction of a wing of 150 Boys Hostel was taken in hand in the limited space available as the same was a very urgent work and the Medical authorities were pressing hard and also the students had represented for the shortage of accommodation to the Minister in charge. In the light of the above facts the contractor had to execute the work in the limited space available 'and as such he was put to some difficulties as mentioned by him in para. 1 of his letter referred above and this was due to unavoidable circumstances on the part of the Department and as such the contractor might have suffered some loss . . . . . . . . . ." This evidence makes it perfectly clear that although the Depart ment gave the contract to the plaintiff on the footing that the whole of the old super‑structure existing on the site would be first demolished and he would be entitled to use the serviceable material and to stack the building material on the open site, but they failed to carry out this term of the contract and the plaintiff had to take up the work without the above‑mentioned facilities. There is no doubt in my mind that on account of this breach the plaintiff had suffered losses. But the question is whether in law he is entitled to be compensa ted for the losses suffered in the above‑mentioned circumstances. Mr. Lakhani has drawn my attention in this connection to the book entitled " Building Contracts " by D. Keating. The learned Commentator at page 42 of this book has stated. " Where after a contract has been entered into the employer brings about a change in the state of affairs which the parties assumed would be the basis of the contract, and as a result the cost of the work is increased the contractor may be able to recover a reasonable sum in respect of the increased cost notwithstanding that the employer's actions do not amount to a breach of contract." This statement is supported by a decision Bush v. Whitehaven Port and Town Trustees (1) and is further explained by Denning, L. J. (1) (1888) H.B C 4th Ed., page 122 in Davis Contractors Ld. v. Fareham Urban District Council (1). Denning, L. J. in this connection observed "Secondly, the application of Bush v. Whitehaven Port and Town Trustees. The Arbitrator decided in favour of the Contractors because he thought that the case came within the principle of Bush v. Whitehaven Port and Town Trustees. We have therefore to consider what is the principle contained in that case. The facts were these : in 1886 Bush agreed with the trustees to build a water main in the Lake District for 1,

335. The contract was made in June and the work was to be done in the next four months, which were the dry summer months. Bush made his tender on that footing. The trustees were to give him possession of the site as and when required, but they failed to do so. The land was not all available until October

6. The result was that the work had to be done in the wet winter months instead of the dry summer months. Bush claimed an extra payment on that account. His difficulty was that there was an express clause in the contract saying that, if the site was not made available in time, the contractor should be entitled to an extension of time but not to any increase of payment. But the Courts got over that clause. The jury found that the conditions of the contract were so completely changed, in consequence of the defendants' inability to hand over the site in the time required, as to make the special provisions of the contract inapplicable. On that finding it was held by this Court that Bush was entitled to a further 600 over and above the contract price. Lord Esher M. R. said : `The condition of things had been so altered after the making of the original contract (they had been so greatly altered) that it was not reasonable, or right or fair, or just, to hold that the original contract was made with regard to those circumstances'. He held that in the new situation Bush had a claim for a fair remuneration for the work done, in other words, to a quantum meruit." Although Mr. Muzaffar Hassan, the learned counsel for the defendants, did not challenge the correctness of "Bush" decision, but this case was further considered by the House of Lords in Davis Contractors Ltd. v. Fareham Urban District Council (2). This case was distinguished and their Lordships held "The fact that, without the fault of either party, there had been an unexpected turn of events, which rendered the contract more onerous than had been contemplated, was not a ground for relieving the contractors of the obligation which they had undertaken and allowing them to recover on the basis of quantum meruit." But Bush v. Whitehaven, though distinguished, was not over ruled. It appears to me that Courts of law ought to find out whether or not on the terms of the contract the parties must have entered into it on the footing that if a particular thing and b state of things does not continue the contract will be treated as frustrated. I agree that this implied term is not to be spelled (1) (1955) 1 Q B Divn. 302, 307 (2) 1956 A C 696 in those cases where unexpected turn of events had made it more onerous than had been contemplated but it will certainly apply to those cases where the conditions of contract have so changed due to the fault of the other party that the very basis on which it was entered into had disappeared. If the Court comes to such conclusion it must hold that it was an implied term of the t contract that the defaulting party would compensate the sufferer. This is what is known in law Doctrine of Frustration on account of changed circumstances and the injured party is entitled to a fair compensation or quantum meruit. In my opinion this principle is also applicable to the facts of the present case. The rates for the proposed construction was invited on the footing that the contrac tor will have to demolish the old structure existing on the site, will remove the debris, utilise the old material with the permission of the Executive Engineer and have open site at his disposal for constructing the new building. The defendants, however, failed to comply with this condition. It was for them to get the old building vacated by the Civil Hospital Authorities. Thus they were responsible for bringing a change in the situation and the very basis on which the contract was given ceased to exist. In these circumstances the Plaintiff is entitled to claim a fair compensation from the defendants. The question, therefore, arises to what damages or compensation the Plaintiff is entitled in this respect. The plaintiff has claimed 12% on the total cost of the tender. ‑ This claim is supported by the recommendation of the Executive Engineer but he cannot be allowed to claim it on this basis. As early as 5th July 1954, his claim in this respect was only in the sum of Rs. 18,

720. After narrating his difficulties he stated in letter Exh. 7/19 as under "We therefore submit our claim for these, which are as follows The total work done upto 30th June 1954, as fourth running payment made in the first week of July is Rs. 1,56,

000. Extra percentage as explained above on the whole work done @ 12 per cent. Rs. 18,720." Thus on 5th July 1954, he was prepared to accept on this account a sum of Rs. 18,

720. In view of this, the plaintiff cannot be allowed to claim more amount than what he claimed under the said letter. I therefore allow the claim of the plaintiff on this item only to the extent of Rs. 18,

720. Now this brings me to the second item of Rs. 13,867 claimed by the plaintiff as the balance amount due for the extra work done by him on the building in question under the directions of the Executive Engineer. So far as the extra items are concerned there is no dispute between the parties. It is admitted by the parties that the extra items of the work are contained in Exhs. 7/50 and 7/51 and the plaintiff's claim in this respect is contained in Exh. 7/47 to Exh. 7/49. These extra items do not form part‑of the terms of the agreement and are outside its terms. The relevant clause of the agreement which applies in such cases is clause 12 of the agreement. It provides that the contractor is bound to carry out such extra items of the work as he is called upon to do in writing by the Executive Engineer. And if for such work no ratp is specified in the contract then it shall be carried out at the rates entered in the Schedule of rates of Pak P. W. D. plus certain per centage. But if they are not entered in the Schedule then the contractor shall within seven days of the date of the order inform the Engineer‑in‑charge of his rates and if it is rejected he is at liberty not to proceed with the extra items and the Department will be entitled to get it done through other sources. But if the contractor has commenced work or incurred any expenses before the rates are determined, he shall be paid according to the rates fixed by the Executive Engineer. In case of disputes between the contractor and the Executive Engineer, the matter is decided by the Superintending Engineer, whose decision is final on such question. Now the documents on the record show that the rates of the extra items are not mentioned in Pak P. W. D. schedule. Accordingly the plaintiff on 24th September 1954, by letter Exh. 7/25 submitted his rates for the extra item of the work and followed it with a reminder on 4‑10‑1954, (Exh. 7/26). This letter was forwarded by the Superintending Engineer on 11th October, 1954, under letter Exh. 7/28 for necessary action. Plaintiff threatened the Depart ment to stop the work and on 18th October 1954, sent a telegram Exh. 7/30 and called upon them to settle the rates before he proceeds with the work. On 24th January 1955, by letter Exh. 7/35 he further submitted his rates for the extra items of the work entrusted to him. But it is doubtful that these rates were submitted under clause 12 of the agreement, i.e., within seven days of the order of the work. They appear to have been sent during the progress of the work and have no connection with the disputed items. Such rates in my opinion are of no use and cannot be considered to be under clause 12 of the agreement. In these circumstances the payment of the extra items shall have to be determined on the basis of the rates fixed by the Executive Engineer. The plaintiff has not been able to prove that the Executive Engineer fixed any other rates for the work contained in Exhs. 7,/47 and 7/49. He has not even proved what was his bill in this respect. In the absence of any other proof, I shall have to presume that the rates at which the plaintiff was paid for these items of work by the Department; were those fixed by the Executive Engineer under clause 12 of the agreement and the plaintiff is bound to receive payment on that basis. So far as the items contained in Exh. 7/48 are concerned, the defendants have produced documents Exh. 12 dated 15th November 1954. This document consists of four leaves. Out of them two leaves at pages 121 to 123 of the record show the rates fixed by the Executive Engineer under clause 12 of the agree ment for the item of the work mentioned in Exh. 7/48. The plaintiff's claim is also based on these rates. Mr. Muzaffar Hassan, the learned counsel for the defendants, argued that these rates were subject to the approval of the Superintending Engineer and the plaintiff is not entitled to claim for the extra items con tained in Exh. 7/48 on the basis of the rates recommended by the Executive Engineer. This argument is fallacious. Under clause 12 of the agreement the Superintending Engineer only comes in if there is any difference between the claim of the contract and the rate fixed by the Executive Engineer. There is nothing on the record to show that there was any such difference between the plaintiff and the Executive Engineer's rates. On the contrary, thq plaintiff has based his claim in Exh. 7/48 on the basis of the rates fixed by the Executive Engineer under Exh.

12. In view of clause 12 of the agreement the defendants are liable to pay for the extra items contained in Exh. 7/48 on the basis of the rates fixed by the Executive Engineer. 1 therefore hold that the plaintiff has proved his claim to the extent of Rs. 5,011‑8‑0 on this item. The third claim of the plaintiff is in the sum of Rs. 19,600 as damages for losses sustained by him for non‑completion of the work within seven months as agreed upon between the parties and for maintaining the establishment for twenty months. The plaintiff claims in this respect Rs. 50 per day for 13 months from the defendants. The learned counsel for the plaintiff has not been able to satisfy me how the plaintiff is entitled to claim any amount in this respect. No doubt the contract was to be completed within seven months but the plaintiff himself asked for extensions and the Department granted the extensions vide Exhs. 7/27 and 7/31. In view of this the plaintiff's claim on this account has no foundation and does not deserve any serious consideration. I therefore disallow the claim of the plaintiff for this item. On the above finding issues Nos. 1, 2 (a), 2 (b), 3 (a), 3 (b) and additional issue No. 1 are disposed of. My finding is that the plaintiff is entitled to claim Rs. 18,720 in respect of the first claim and Rs. 5,011‑8‑0 in respect of the second claim. The next question for consideration is whether the plaintiff's' claim is barred by time. The learned counsel for the defendants contended that the plaintiff's claim on the alternative ground in respect of Rs. 43,211 is time‑barred. He argued that in amendin the plaint in this respect plaintiff has changed the cause of action L and substituted it with a new cause of action.' I do not find any force in this contention. The plaintiff in the alternative has only taken another ground in support of his claim. It cannot be said that thereby he has introduced a new or fresh cause of action. In my opinion the suit continues to be based on the same cause of action and the claim in respect of item of Rs. 43,211 is not barred by limitation and is well within time. Issue No. 5.‑It was contended on behalf of the defendants that the plaintiff's notice under section 80, C. P. C. given before filing the suit is bad because the claim in the suit has been reduced. The learned counsel for the defendants has not been able to cite any authority in support of his contention that if a party reduces his claim, he is in law required to give a fresh notice to the Government under section 80, C. P. C. The ordinary rule is that a larger claim includes the small claim also and on this basis the contention appears to be not well‑founded. The learned counsel for the plaintiff, however, invited my attention to 3 cases reported in Lady Dinbai Dinshaw Petit and others v. The Dominion of India and another (1), Baidya Nath Roy Chowdhury and others v. Ram Chandra Banerjee and others (2) and Firm Muhammad Sadiq‑Imam Din v. The Federation of Pakistan (3). (1) A I R 1951 Bom. 72 (2) 41 C W N 92 (3) P L D 1956 Lah. 1093 These cases fully support the view that the object of section 80 is to give intimation to the Government of the grievance that the subject has and gives an opportunity to the Government to,6 redress that grievance before it is brought to Court. The section is not intended to be an instrument of oppression against the subject. In 41 C W N 92 it was held that if a claim is made in the notice under section 80 for a large sum of money and it is p reduced to a much lower figure in the suit, the notice under section 80 is a valid notice. I therefore find no force in the contention of the defendants and decide this issue against them. Issues 6 and 7.‑On the above‑mentioned findings the plaintiff is entitled to a decree for Rs. 23,231‑11‑0 with interest at 6% from the date of the institution of the suit till its realisation. The defendants will also bear proportional costs of this suit. For the reasons given above the suit is decreed in the sum of Rs. 23,231‑11.0 with proportionate costs. A. x. Order accordingly.