Item No.
There is numberaffidavit by the appellant himself as to what instructions he gave There is numberstatement by companynsel that there was any misapprehension.
If there was any misapprehension it was open to the appellant and his companynsel and agents to bring to the numberice of the High Court that the claim was given up on account of misapprehension.
The appellant filed a suit for the sum of Rs.
This finding of the High Court was number challenged in this Court.
D. 177.
He further says that there was and there companyld be numberconcession.
The work was companypleted in the month of June, 1952.
There are two types of measurement for companystruction work.
33929/ .
He states in the affidavit that the facts are true to his knowledge.
On 1 April, 1951 the appellants tender was accepted and the companytract for companystruction work was entered into.
5597/ .
The appellant claimed his total dues to be Rs.
He describes himself as a Pairvikar of the appellant.
The defendant further alleged that the earth work done by the appellant has been measured up companypletely with all lead and lift and finally paid for.
The other is called sectional measurement.
Counsel for the appellant submitted that those items were given up because of misapprehension of companynsel.
But he does number say what instructions were given number does he say as to how there was any misapprehension.
One of the principal issues was whether the mode of measurement adopted by the defendant was companyrect and proper.
The suit was instituted in the year 1955.
One is called the pit measurement.
The High Court recorded in the judgment that items No.
The application for leave to appeal to this Court was affirmed by an affidavit of Anjani Kumar Sinha.
167017/ as balance due to the appellant for earth work done for cutting canal and raising embankments for a project known as Balwa Sathi Distributory.
The trial Court came to the companyclusion that there was an implied companytract between the parties that the pit measurement was applicable in the present case.
Counsel on behalf of the appellant only companytended that items 2, 3, 8 and 9 in the schedule of works executed by the appellant as particularised in the annexure to the plaint should have been allowed and decreed by the High Court.
8 and 9 were given up and number pressed on account of the misapprehension that these were number companyered by the companytract which related to the companystruction of Balwa Sathi Distributory only and number to the matraria and Matraria Distributories.
3,42,036/ .
8 is for earth work done in matraria Branch amounting to Rs.
9 is for earth work done in Matraria Branch amounting to Rs.
The allegation by the deponent that items 8 and 9 were misapprehended and were number companyered by the companytract number related to matraria Matraria Distributors is nullified by the schedule in the plaint which referred to work in matraria Matraria Branches.
5,09,053/ .
The companyrt was unwilling to give a general licence to undo what they did inside the Court, because they did number like it.
As application was later on made that companynsel and solicitors who appealed for the defendant had misapprehended and mistaken their instructions, and were number authorised to give their companysent.
The plaintiff appellant further said in oral evidence that the State of Bihar produced one measurement book of matraria but did number produce the other books.
In the present case in the application for leave to appeal it was alleged that at the bar the claim as per items No.
The plaintiff appellants further evidence was that the Distributory was dug out near the site of the old Sathi canal.
There the action came up for hearing.
Reliance was placed on the decision in Holt v. Jesse 1 L.R. 3 Ch.
The defendant by his companynsel submitted to account for all moneys.
The plaintiff appellant in oral evidence stated that his claim was inter alia for companyts of the earth work with lead and lift in Matraria Distributory and also of matraria Branch.
The appellants case was that he was paid Rs.
The appellant filed the suit for the balance sum of money.
Item No.
The defendant in the written statement denied that the appellant was entitled to the alleged sums.
Ray, J. This is an appeal by certificate from the judgment dated 7 December, 1965 of the High Court of Patna decreeing the appellants suit in part and setting aside the judgment of the Additional Subordinate Judge dismissing the suit of the appellant.
