P L D 1960 (W (PLP)

According to the plaintiff he had to use uncourse rubble or Kupcha stone for the construction. At a subsequent stage he was called upon by the Chief Engineer and Superintending Engineer to make the construction of course and rubble masonry of first sort. It was admitted by defendant's witness Mr. Aziz Quraishi (Exh. 61) in his statement that he insisted the work to be done by the plaintiff according to the details of the work given at serial No. 24 of D Specifications. He also admitted that : "course rubble masonry in cement mortar is described at Serial No. 68 of D. Specifications". He asserted that the claim of the plaintiff in Exh. 17 is not correct as he has done the work only according to the specification that he was required to do under the contract. In cross‑examina tion this witness admitted that there are two kinds of masonry namely, course masonry and uncourse masonry, and all the specifications will fall between the two types of work. According to him course rubble masonry is divided into first, second and third sort. He admitted that the specifications given at page 148 of Exh. 61/1 are standard specifications. According to this witness the work done by the plaintiff was in uncourse Kupcha masonry. He stated that in course rubble masonry the layers are even and horizontal, dependent on the work of masonry. In uncourse rubble masonry it is necessary that the stones are put in the mortar in horizontal manner. This witness could not say whether Exh. 61/2 was the photo of the buildings in dispute. He, however, admitted that it was the photo of one of those buildings which were constructed by his department. When a question was put to him by the learned counsel for the plaintiff whether the construction shown in it is of course or uncourse masonry, the witness replied that it was uncourse but uncourse Kupcha masonry as defined in "D" Specifications attached to the agreement. This witness asserted in cross‑examination that Item No. 24 does not refer to course rubble masonry ; it relates to a particular specification used by his department ; it is neither course nor uncourse masonry. He also admitted that the layers in Exh. 61/2 are more or less horizontal. Stones are evenly laid : they are more or less of the same size throughout and the difference cannot be seen in the photo and may be covered by plaster and the pointing. He also admitted that the whole outer facing is not plastered. Most of the stones vary from 4" to 6" in height but he was unable to say whether the chips and small stones were used in it. But he admitted that the stone used gives an impression of complete course rubble. The joint appears to be varying from 3/4' to 11/4". The chips and stones would be used only in this portion. This witness further asserted that the kupcha masonry is not described in any other P. W. D. Manual except by the Sind P. W. D. in "D" Specifications adopted by them. This witness has tried his best to support the defendant's case that the masonry work done was of uncourse Kupcha masonry but had to admit that the stones used gives an impression of complete course rubble. He also admitted that the description given in item No. 24 of D Specification is neither course nor uncourse rubble masonry. Perhaps the witness's statement in this respect is correct because in item No. 68 it is stated that "The Specification for coursed rubble masonry shall be the same as that for Kupcha masonry (Specification No. 24) with the difference that (1) the stones‑ shall be rough hammer‑dressed not only on the external faces but on all the faces, and (2) the stones shall be of the full thickness of the course i.e., when the stones in each course are laid in position over the bed of mortar, the top of the stones shall present an even surface and there shall be no levelling up with smaller stones for taking the next layer of mortar." But in my opinion the question is what is the type of the work required in item No. 6 of Schedule "B". It appears to me that according to its description the plaintiff was required to use well dressed stones at corners, jambs of doors and windows and opening sides complete. He was not required to dress the external faces to any degree of accuracy. Nor was he required to hammer and finish the side in any degree. On the evidence produced on the record I am satisfied that the plaintiff at the instance of the Superintending Engineer carried out the work of much superior type than mentioned in Item No. 4 and No. 6 of Schedule "B". They are in the nature of extra work and cannot be considered as specified works. Now the question arises whether the defendants are liable to pay anything extra for the extra work. It was urged by Mr. Ali Nazar, the learned counsel for the defendants, that under clause 14 of Form B‑1 the plaintiff is not entitled to claim anything as his claim was checked by the defendants through their Executive Engineer or the Superintending Engineer, who have disallowed it. According to him, they being the Engineers in charge are the final judges of settling the rates of the extra work done by the plaintiff and the plaintiff is not entitled to claim any thing more than what has been accepted by them. The relevant portion of Clause 14 of the agreement reads as under :‑ "The Engineer‑in‑charge shall have power to make any altera tions in, or additions to, the original specifications, drawings, designs and instructions that may appear to him to be neces sary or advisable during the progress of the work, and the contractor shall be bound to carry out the work in accordance with and instructions in this connection which may be given to him in writing signed by the Engineer‑in‑charge and such alteration shall not invalidate the contract ; and any additional work which the contractor may be directed to do in the manner above specified as part of the work shall be carried out by the contractor on the same conditions in all respects on which he agreed to do the main work, and at the same rates as are specified in the tender for the main work. And if the altered or additional work includes any class of work for which no rate is specified in this contract, then such class of work shall be paid for at 27 % above the rate shown for such work in the schedule of rates of the division; and if such last mentioned class of work is not entered in the schedule or rates of the Division, then the contractor shall, within seven days of the date of receipt by him of the order to carry out the work, inform the Engineer‑in‑charge of the rate which it is his intention to charge for such class of work, and if the Engineer in‑charge is satisfied that the rate quoted is within the rate worked out by him on detailed analysis, then he shill allow him that rate, but if the Engineer‑in‑charge does not agree to this rate he shall by notice in writing be at liberty to cancel his order to carry out such class of work, and arrange to carry it out in such manner as he may consider advisable, provided always that if the contractor shall commence work or incur any expenditure in regard thereto before the rates shall Nave beer? determined as lastly hereinbefore mentioned, then in such case he shall only be entitled to be paid in respect of the work carried out or expenditure incurred by him prior to tile date of the determination of the rate as aforesaid according to such rate or rates as shall be fixed by the Engineer‑in charge. In the event of a Dispute the decision of the Superintending Engineer of the Circle will be final. Where, however, the work is to be executed according to the designs, drawings and specifications recommended by the contractor and accepted by the competent authority the altera tions above referred to shall be within the scope of such design, drawings and specifications appended to the tender . . . . " A perusal of this clause shows that if on the written instructions of the Engineer‑in‑charge a contractor carries on some extra work, he is entitled to put forward his claim to the Department. The Department might accept it or reject it within seven days. If it is not rejected, it will be taken to have been accepted by them, but if it is rejected the matter is referred by the Engineer‑in‑charge to the Superintending Engineer or to the Executive Engineer as the case may be, whose decision on such question is considered to be final. In my opinion no such procedure was adopted in the present case. The plaintiff did lot submit any rates for the scrutiny of the Department. The Department never referred this question to the Engineer‑in‑charge or the Executive Engineer or for that matter to the Superintending Engineer and no final decision was taken under this particular clause. Mr. Ali Nazar contended that such accuracy cannot be expected from the Department and the final decision taken by the Department on the submission of the bill in respect of this item should be taken as a decision under Clause 14 of the agreement. The argument is not well founded and cannot be supported on the terms of Clause 14 of the agreement. No such laxity can be adopted on its interpretation and I am not inclined to accept this contention. Even otherwise the said clause cannot be invoked on the facts of this case. Admittedly no written instruction was given for the additional work. Plaintiff carried it out under pressure and in the absence of any bar the dispute shall have to be decided under the ordinary law which governs such cases. The learned counsel for the plaintiff' contended that even in cases where an employer orders orally varied work which he is told or knows will cost extra, the Court ought to imply a promise to pay for that work despite the absence of a written order, especially where any other inference from the facts would be to attribute dishonesty to the employer. He invited my attention to the view expressed at page 291 on the book entitled Hudson's Building Contracts (8th Edn.) in support of his contention. He also referred me to page 293 7"he learned author states "If the extra which has been ordered is not ordered under a contract the terms of which require that a written order is a condition precedent to payment, then, of course, the absence of the written order will be no bar to payment." At page 290 the learned author stated "A clause as to orders in writing may be so worded that such orders will not be a condition precedent to the contractor's right to payment e.g., where a clause provides that the con tractor shall execute such alteration as the employer may direct in writing, and does not exclude any claim for work not so ordered. In such a case there is nothing to prevent the employer being liable under the general law. A contract for the erection of a church according to certain plans and specifications provided that if the defendants should at any time desire to make any alterations or additions, the plaintiff should erect the church with such alterations and additions as the defendants or one S should direct, by writing under his or their hand. Certain extra work was done at the desire of the defendants, though not expressed in writing under their hand. Held, that the plaintiff was entitled to recover therefor, for the contract did not provide that no such work was to be allowed or paid for, unless ordered in writing, which would have prevented the plaintiff's recovering, but merely that the plaintiff was bound to execute such extra work as the defendants or S should direct in writing to be done : Diamond v. McAnnany (1865): It appears to me that the written instruction being not a condition precedent to the contractor's right for payment, this case is governed by the General Law. The general rule is that where a written order is a condition precedent, if an architect to the knowledge of the employer gives an order for work which the contractor considers to be no part of the contract and refused to execute it without a written order but the architect ,or the employer requested him to carry it out, it becomes a question of fact whether the work was within the contract and if it is found to be extra work, the employer would not be permitted to set up the plea of absence of written orders as it .would plainly be a fraud on the builder. I agree with the observation of Wigram, J. in Nixon v. The Taff Vale Railway Co. (68 E R 55 at p. 60) that‑ "If, in an action by a contractor, it appears that the company have the benefit of the work done with their knowledge, the Court of law does not allow the company to take the benefit of that work without paying for it, although in covenant the contractor cannot recover." This Court being both a Court of equity and law this principle can be invoked on the facts of this case. Mr. Quraishi and Mr. Rizvi admitted before me that they insisted on the plaintiff to do the work according to Item No. 24 of "D" Specifications. The plaintiff lodged several protests but they were of no avail. The plaintiff in essence was compelled to carry out the work and the defendants having benefit of it with their knowledge are in law bound to pay for it, it being outside the terms of the specified work. The plaintiff has claimed compensation at the rate mentioned in Exh.

17. According to the statement of P. W. Usman Ali (Exh. 60) schedule of rates of Pak. P. W. D. prevalent during 1949‑1956 does not contain any rate for superstructure masonry of first sort in (1 : 6) cement mortar but gives the rate for course rubble first upon cement 1 : 3 mortar as Rs. 139‑8‑0 per 100 c. ft. He stated that if the cement mortar is 1 : 6, it will be reduced to the extent of the cost of 3 c. ft. of cement. On this statement the rates claimed by the plaintiff are not unreasonable and excessive. He has claimed for the plinth masonry at Rs. 70 per 100 c. ft. and for superstructure masonry at Rs. 120 per 100 c. ft. The plaintiff's claim is not based on any term I of the contract but as compensation for the work done for the' defendant. In law he is entitled to the actual expenses incurred by him for the extra work. Plaintiff in Exh. 23/1, a letter dated 18‑7‑53 stated that for the superior work he was spending Rs. 105, per 100 c. ft. I will therefore allow him compensation at this rate. The plaintiff has claimed for plinth masonry at a much reduced rate. He has proved his claim in this respect only to the extent of Rs. 1,088 (Rupees one thousand and eighty‑eight). The plaintiff's claim in respect of the other work comes to Rs. 19,308‑8‑0 (Rupees nineteen thousand three hundred and eight and annas eight). Thus the plaintiff has established his claim for this item to the extent of Rs. 20,396‑8‑0. 1 allow his claim to this extent and reject the rest of the claim. Item No. 2 : Iron used in lintels and beams.‑This brings me to Item No. 2, namely the alleged extra iron and steel used in the construction of lintels and beams. The details of this work are given in Exh.

18. The plaintiff has claimed Rs. 15,974 in this respect. According to the plaintiff this work is covered by Items 9 and 15 in Schedule "B". But these items do not show the quantity of iron and steel to be used for this work. The learned counsel for the plaintiff referred me to Items 27, 28 and 29 of "D" Specifications in Exh. 23/3. He pointed out that these items also do not mention the quantity of iron to be used. He also referred me to para. 2 of Clause 1 of Form B‑1 which says "Copies of the specifications, designs and drawings and estimated rates, schedule rates and any other documents required in connection with the work shall be signed by the Executive Engineer for the purpose of identification and shall also be open for inspection by contractors at the office of the Executive Engineer during office hours." He then referred me to the statement of Mr. Aziz Quraishi (Exh. 61) to show that no drawings or specifications of this particular item was maintained in the office of the defendant Department. According to the learned counsel the defendants must have maintained some drawings and specifications for this particular work and it was their duty to produce them in Court. He asked me to raise an adverse inference against the defendants under section 114 of the Evidence Act for withholding important evidence from coming to Court. I am afraid the contention of the learned counsel is not well‑founded because it was not admitted at any stage by the defendants that such drawings or specifications were maintained in the Department. It is true that the plaintiff summoned these documents from the defendants C but that only entitled them to lead secondary evidence. The plaintiff has failed to prove even by secondary evidence that any such drawings or specifications were maintained in the defendant Department. I am therefore not prepared to raise any adverse inference against the defendant Department. The learned counsel argued that Mr. Aziz Quraishi (Exh. 61) admitted that such drawings and specifications are maintained, but the witness in his cross‑examination only stated that the work in question was to be done according to the standard specifications and designs and in that connection produced Exhs. 61/3 and 61/4, which no doubt were prepared in 1943 and may be the standard specifications or designs for this work. But these drawings also do not give any detail of the iron and steel to be used in this particular work and are of no use for the decision of the question in dispute. On the other hand the learned counsel:, for the defendants referred me to Item No. 8 in "D" Specifications which says :‑ "The reinforcement shall conform to the provisions laid down. in the relevant British Standard Specifications as amended from time to time and shall be free from any rust, scale, paint, or coating of any character 'which is likely to prevent the proper bonding of concrete. The reinforcement shall be pro vided exactly according to, the drawings. Where any details regarding the disposition or quantity of the reinforcement is not explicitly shown on the drawings, the reinforcement shall be provided as directed by the Engineer". He argued that as the disposition or quantity of reinforcement is not explicitly shown on the drawings, the reinforcement will be provided as directed by the Engineer. This argument is not without force. Admittedly this clause is relevant to the question under consideration. In this case there is no evidence before me that any details of the quantity of the reinforcement was specifically shown on any drawings or specifications which forms part of the contract between the parties. According to the defendants there are no other specifications and drawings except Exh. 61/3 and Exh. 61/4. These also do not give any provision to this effect. In the absence of any such provision the question shall have to be decided according to the directions given by the Engineer‑in‑charge. Mr. Aziz Quraishi has stated that the quantity of iron to be used is given in the schedule Exh. 61/3 and Exh. 61/4, which requires the use of 10 lbs. or 12 lbs. of reinforcement. The Engineer‑in‑charge acted on these details and asked the plaintiff to use the quantity mentioned therein. Even if the plaintiff did not sign the schedule, he was bound to carry out the directions of the Engineer‑in‑charge under item No. 8 of "D" Specifications. In view of this term he cannot claim any extra amount for the compliance of such directions. I therefore disallow the plaintiff's claim in this respect. Item No. 3 : R. C. C. Steps.‑The plaintiff in this connection has claimed Rs. 6,

681. The details of this claim are given in Exh.

19. According to the agreement contained in Item No. 30 Schedule "B", the plaintiff was required to construct steps of C. C. blocks in cement mortar or C. C. in the ratios of 1: 3 : 6 laid insitu cement pointed or plastered or pointed as required on an exposed side finished smooth including centering etc. complete. Plaintiff stated that later on he was asked to put up R. C. C. steps by the Department. Before starting the work in R. C. C. he submitted data sheet and after its approval started the work. According to his statement the department did not take any decision on the question of rates and the rates submitted by him should be accepted as applicable to this work. Whatever may be position there is no doubt that the plaintiff, instead of block masonry steps, constructed R. C. C. steps at the instance of the defendants. This fact was admitted by the defendants in a letter dated 29th September 1954, (Exh. 5). In this letter the defendant Department admitted that the plaintiff carried out the extra work of R. C. C. steps and that he will be allowed extra amount on such work. The relevant portion of letter Exh. 5 is reproduced below "

5. R. C. C. Steps.‑The claim has been considered and it is decided that you will be allowed Extra R. C. C. for the triangular portion of the steps in addition to the scale below which has already been paid to you." The defendant in this connection paid to the plaintiff some extra amount but the plaintiff is not satisfied and claims more. The question arises on what basis the plaintiff is entitled to claim compensation for this work. M. Riaz Ahmed, the learned counsel for the plaintiff, has referred me to Clause 42 of "D" Specifications. According to this R. C. C. steps payment shall be based on the number of treads. Each step on which the C. 1. nosing is fixed, will be reckoned as one tread. Mr. Ali Nazar has not been able to point out any other clause in the contract on the basis of which the plaintiff is to be compensated. The statement of Mr. Aziz Quraishi (Exh. 61) is most unhelpful. He was not in a position to state whether the construction of this item by the plaintiff was in R. C. C. steps or in block masonry steps. The plaintiff has claimed compensation at the rate of Rs. 25 for each tread. It is not challenged by the defendants that the rates claimed by the plaintiff are in any way excessive or unreasonable as compared to the rates prevalent at that time in the Department concerned at Karachi. I therefore allow the claim of the plaintiff and hold that he is entitled to claim compensation in this respect at the rates claimed by him according to Item No. 42 of "D" Specifications. The plaintiff is entitled to a sum of Rs. 5,240 (Rupees five thousand two hundred and forty). His claim of 271% above schedule rates is disallowed. Item No. 4 : Refund of Royalties and Bajri.‑The plaintiff in this connection has claimed Rs. 19,

550. The details of this claim are mentioned in Exh.

20. According to Clause 36 of Form B‑1 "All quarry fees, Royalties, Octroi dues and ground rent for stocking materials. if any, should be paid by the contractor who will however, be entitled to a refund of the same by Board." The plaintiff submitted original quarry receipts along with that bill dated 8‑11‑1952 (Exh. 39). The plaintiff further submitted along with letter dated 26th October 1953, (Exh. 49) another set of original receipts of quarry fees and royalties paid by him to the contractors and in this connection claimed a total sum of Rs. 19,926‑4‑

0. The original receipts submitted along with this letter were summoned from the defendants, but they only produced Exh. 40‑

48. The plaintiff in his statement has proved these documents but could not prove royalty receipts for metal, stones, bajri and sand as the original receipts which are duly proved to have been received by the defendant for scrutiny and were not produced by the defendants. The plaintiff, however, on oath stated that in this connection he paid Rs. 15,628‑8‑

0. This figure is also mentioned in Exh.

49. On receipt of Exh. 49 from the plaintiff, the defendants wrote a letter on 15th November 1954, (Exh. 7) to the Collector to verify whether the contractors mentioned in the receipts were authorised contractors to carry on quarry work. The Collector by his letter dated 20th November 1954, (Exh. 6) replied that the contractors names were correct. In this letter the rates of the royalties charged by the contractors are also given. So far as the quarry fees are concerned, the Collector's letter shows that the contractors were left to charge them according to the labour employed for this particular purpose. It is proved by a letter (Exh. 24/1) from the Assistant Engineer to the Executive Engineer of the defendants dated 2‑12‑1953 that the total number of trucks shown by the contractor in column 3 of his claim was verified from the quantity of work done by him on the site and was found to be correct. To meet the plaintiffs' case, the defendants have not produced any evidence to show that the claim of the plaintiff in this respect is exaggerated or false or not correct. Mr. Aziz Quraishi (Exh. 61) only said that the claim of the plaintiff in this respect is subject to proof. After considering the evidence of the plaintiff in this case I am satisfied that the plaintiff is entitled to the refund of the amounts paid by him in this behalf. The plaintiff has made up this claim as under :‑ (1) Actual amount paid Rs. 16,185. (2) Add 271% Rs. 4,450 out of the said amount he has been paid Rs. 1,

085. In my opinion he is not entitled on this amount to add any amount to the extent of 27 %. Accordingly I disallow the sum of Rs. 4,297‑12‑0 claimed by him as over and above 27 % .of the rates of the estimate given in the tender. After deducting this amount and the amount paid by the defendants is only entitled to Rs. 15,100 on this item. I will allow the claim of the plaintiff' to the extent of Rs. 15,

100. Item No. 5 : Holdfast.‑‑‑The plaintiff has claimed Rs. 4,590 in this respect. According to both the parties Item No. 22 of Schedule "B" give the details of this work. It reads as under :‑ "Door and windows of pen or deodar wood shutter partly panelled or partly glazed or wholly panelled or glazed as required in pen or deodar wood frame with iron fitting if complete." Item No. 41 is the corresponding item in "D" Specifications. The learned counsel for the defendants has relied on this item to show that the fittings shall be of the best quality and pattern and shall be used on the work only after samples have been approved by the Engineer. It provides that the rate shall include all necessary fittings, fastenings etc. required to make the work complete and effective in every way. The plaintiff has stated that holdfast is not included in the fastenings. Usman Ali (Exh. 60) has stated that the "Hold Fast" is not considered to be included in fastening according to the practice prevalent in Pak P. W. D. Mr. Aziz Quraishi (Exh. 61) on the other hand, has stated that this is included in the fastening. After careful consideration of the record I am of the opinion that holdfast is in the nature of the fastening and is covered by Item No. 22 of Schedule B. I therefore disallow the claim of the plaintiff in this respect. On the view taken by me in respect of the claim of the plaintiff, my findings on the issues are as under Issue No. I.‑The construction by the plaintiff wa3 of course rubble masonry as detailed in Item No. 24 of D Specifi cations. Issue No. 2.‑In the affirmative. The work done by him was as described in Item No. 24 of "D" Specifications. Issue No. 3.‑No quantity of iron and steel was given in the work described in the tender. The evidence shows that the iron and steel was used upto 10 lbs. and 12 lbs. in the construction in question. Issue No. 4.‑Negative. Issue No. 5.‑Not proved. The plaintiff is not entitled to any amount in this respect Issue No. 6.‑Affirmative. The plaintiff's claim in this respect has been allowed. Issue No. 7.‑Holdfast is also included in the specification of doors and windows in the contract. Issue No. 8.‑In the affirmative. The claim of the plaintiff after the deduction of Rs. 4,297‑12‑0 has been allowed. Issue No. 9. ‑Not pressed. Issue No. 10.‑Not pressed. Issue No. 11.‑Not pressed. Issue No: 12.‑Not pressed. Issue No. 13.‑Not pressed. As a result of the above findings the plaintiff is allowed a decree for Rs. 40,.736 (Rupees forty thousand seven hundred ands thirty six) with proportionate costs. The decretal amount will carry interest at 6% per annum from the date of suit till its realization. A. H. Order accordingly.