JUDGMENT : Das, J. - The Plaintiff-Appellant is an A class registered contractor in the Public Works Department of Orissa. For the flood damage repair of Cuttack-Chandbali road between 36th to 48th mile, the Executive Engineer, Roads Division, Cuttack, on 16-12-1955 invited tenders for collection of materials such as metal, morrum and rubbles. On 30-12-1955 the Plaintiff submitted his tender (Ext. 1). There were several other tenders also. A comparative statement of rates being made, the tender of the Plaintiff was found to be the lowest. The Superintending Engineer approved his rate on 14-1-1956. In pursuance of the acceptance of the tender, an agreement (Ext. 3) dated 3-2-1956 was entered into by the Plaintiff for the supply of the said materials. In the agreement, Ext. 3, there were four special conditions. Of them, the material condition with which we are concerned in this appeal is condition No. 1 which before any alteration or correction stood as follows: Special Conditions. (1) Metal and Morrum are to be stacked in boxes of 5'.1" X 5'-1" X 1'-1" to be taken as 25 Cft. inside box otherwise 81/2% for voids will be deducted and distributed at road sides as per instructions. (2) .... (3) .... (4) .... It now appears that the disputed portion indicated in figures (5' .1" X 5'-1" X 1' -1") marked Ext. B in condition No. 1 above, had been penned through. The other portion admittedly penned through in the above condition were "inside box otherwise 8?% for voids will be deducted" marked Ext. B/4. We are mainly concerned with the first alternation in the special condition No. 1 of the agreement, Ext. 3. The figures 5'.1" X 5'-1" X 1'-1" by actual calculation works out to 28'611 Cft. though according to the special condition the same was to be taken as 25 Cft. for purpose of measurement. As this mode of measurement would mean a substantial loss for the Plaintiff, his case is that at the time of the agreement, he negotiated with the Executive Engineer, (d.w.3) and ultimately the figures (Ext. B) were scored through. The effect of such scoring through or deletion is that the Plaintiff would be paid the price for the actual supply made by him and no deduction shall be made for the voids. B) were scored through. The effect of such scoring through or deletion is that the Plaintiff would be paid the price for the actual supply made by him and no deduction shall be made for the voids. But in spite of that the materials supplied by the Plaintiff were measured in boxes of 5'-1" X 5".1" X 1'.1" and were calculated to be 25 Cft. although in actual measurement it came to be 28.611 Cft.. According to the Plaintiff, by this process of measurement, he suffered a loss of Rs. 12,294-94 p. The Plaintiff further claimed a Bum of Rs. 605-06 as damages for the retention of his money. Thus, his total claim was for recovery of Rs. 12, 900/. with pendente lite and future interest. 2. The Defendants repudiated the averments of the Plaintiff. Their case is that there was a special condition in the agreement under which the metal and morrum supplied by the Plaintiff were to be stacked by him in boxes of 5'-1" X 5'-1" X 1'.1" and irrespective of the actual quantity supplied, the above box measurement is to be counted as 25 Cft. According to this condition the Plaintiff stacked the metal and morrum in boxes of aforesaid measurement which for measurement purposes was taken as 25 Cft. as provided in the agreement, Ext. 3. The difference in the calculation of the total Cft., according to the Defendants, is due to the presence of voids in the heaps of collections of metal and morrum. Thus, the defence denied the case of the Plaintiff that the figures (Ext. B) were deleted at the time of the agreement. The defence case is that these figures have been scored through by somebody without knowledge of the appropriate authority and possibly at the instance of the Plaintiff and that the Defendant is not liable to pay the claim put forward by the Plaintiff. 3. In support of his case, the Plaintiff examined himself and relied mainly on the agreement, Ext. 3. Incidentally he also placed reliance on some other documents which I shall deal at the appropriate stage. The merit of the Plaintiff's case depends solely on his oral evidence. No other witnesses have been examined from his side. 4. 3. In support of his case, the Plaintiff examined himself and relied mainly on the agreement, Ext. 3. Incidentally he also placed reliance on some other documents which I shall deal at the appropriate stage. The merit of the Plaintiff's case depends solely on his oral evidence. No other witnesses have been examined from his side. 4. In support of its case the defence examined the section officer, d.w.1, the accountant, d.w.2, the Executive Engineer, d.w.3 and the Superintending Engineer d.w.4 and relied upon a number of documents. 5. The learned trial Court rejected the case of the Plaintiff and dismissed his suit. Hence the appeal by the Plaintiff. 6. Mr. Misra, learned Counsel for the Appellant and the learned Advocate-General appearing for the Respondents placed the evidence at great length. The only question for consideration is whether the relevant figures (Ext. B) were deleted at the time of the agreement as alleged by the Plaintiff or they have been subsequently scored through by somebody without knowledge of the P.W.D. authorities. 7. I shall first examine the evidence of the defence as admittedly the alteration in Ext. 3 was made while the document was in their custody. D.w.2 was the Divisional Accountant of the Roads Division. At the time of execution of the agreement, Ext. 3, according to him these figures (Ext. B) were not scored through. D.W.3 Basudev Mohanty the Executive Engineer who is a signatory to the agreement, Ext. 3, also asserts that the relevant figures in the special condition marked Ext. B were there when he signed the agreement, and they were not penned through as alleged by the Plaintiff and he had not scored them through. Wherever any correction has been made he has initialled it. He pointed out that another portion was scored through and that has been initialled by him. (Ext. B/4). That relates to the deletion of the expression "inside box otherwise 81/2% for voids will be deducted." The agreement was sent to the Superintending Engineer (d.w.4) for his acceptance. D.w.4 signed the contract on 233.57 on behalf of the Government. Ext. A/14 is his signature on Ext. 3. It is his evidence that when he signed the document, Ext. 3, the relevant figures were there. Had it been scored through earlier, he would have also initialled the same. He explained that the rate for 100 Cft. D.w.4 signed the contract on 233.57 on behalf of the Government. Ext. A/14 is his signature on Ext. 3. It is his evidence that when he signed the document, Ext. 3, the relevant figures were there. Had it been scored through earlier, he would have also initialled the same. He explained that the rate for 100 Cft. in the tender for metal, morrum and rubbles is for compact quantities. Allowing for the voids in the metal and morrum stacked in the aforesaid box-measurement, the exact measurement would come to 25 Cft. and that is how it has been noted in the agreement. Thus, the oral evidence of the witnesses examined on behalf of the defence fully supports the defence story that the relevant figures marked Ext. B were not scored through, but were in tact at the time of execution of the document. In normal course of business a certified copy of the agreement, was to be sent to the office of the Deputy Accountant-General. The Ex. Engineer, d.w.3, certified the copy (Ext. K/1) as the true copy of the agreement when it was sent from his office. It appears from the evidence that Ext. K/1 was sent from the officer of the Executive Engineer on 8-5-57. The defence relied upon the document to show that even upto that date the disputed figures remained intact as will appear from the said certified copy. Mr. Misra urged that Ext, K/1 could not be a true copy copy of Ext. 3 as all the special conditions mentioned in Ext. 3, did not find place in Ext. K/l. It is not disputed that condition No. 4 was struck down as also that the portion of condition No. 1 marked Ext. B/4, that is, (inside Box otherwise 81/2% for voids will be deducted) had been struck off from the agreement. It is clear that the material portion which survived after those, corrections in Ext. 3 were found to have been copied in Ext. K/l. In other words all these special conditions except that which has been struck off, find place in the certified copy of the agreement (Ext. Kit) sent to the Deputy Accountant General. Thus, it cannot be said that Ext. K/l is at variance with Ext. 3 and is a subsequent manipulated document It appears from Ext. K/1 that the disputed figures were there at least on 8-5-57. 8. Kit) sent to the Deputy Accountant General. Thus, it cannot be said that Ext. K/l is at variance with Ext. 3 and is a subsequent manipulated document It appears from Ext. K/1 that the disputed figures were there at least on 8-5-57. 8. It was contended that no reliance should be placed on this document as it was produced from the custody of the Defendant. On an examination of the records, however, this appears to he incorrect. The Defendant filed a petition before the trial Court on 26-4-62 to call for the document from the office of the Deputy Accountant General and in fact the document was produced from the said office in response to the summons from, the Court. Thus, the contention that Ext. K/1 was produced, from the custody of the Defendant is not correct. It further appears from the letter Ext. K dated 8-5-57 sent from the office; of the Executive Engineer to the office of the Deputy Accountant General that this agreement Ext. K/1 .was despatched to the said office as an enclosure to the said letter dated 8-5-57. The other argument against the reception of Ext. K/1 as a genuine document is that the date and number of the latter Ext. K was not mentioned in Ext. 3 which accompanied the letter. This contention has hardly any force. In the letter Ext. K itself which accompanied the agreement it has been specifically mentioned that the certified copy of the agreement for the repair work of the flood-damaged portion of the Cuttack-Chandbali road from the 36 to 48th mile in favour of Chaudhury Radhanath Nanda (Plaintiff) is enclosed for favour of disposal. It was contended that since in Ext. K the actual date of completion of of the work was mentioned as 8.1.57, Ext. K/1 cannot be taken to be a true copy of the agreement. Ext. 3 which was executed long before the actual completion of the work. This contention is also without any substance. It is the admitted case of the Plaintiff that the work was completed on 8-1-57. Thus, by 8-5-57 when the agreement was sent to the office of the Deputy Accountant-General the work was already completed and as such the date of completion also was mentioned in Ex. 3. There is nothing unusual in the same. The other argument against the genuineness of Ext. Thus, by 8-5-57 when the agreement was sent to the office of the Deputy Accountant-General the work was already completed and as such the date of completion also was mentioned in Ex. 3. There is nothing unusual in the same. The other argument against the genuineness of Ext. K/1 is that similar agreement such as Exts. J, J/1 made in respect of other contractors like G.C. Kanungo and Banshidhar Behera, had not been sent to the office of the Deputy Accountant General, but only Ext, K/l was sent only to make out an evidence against the Plaintiff. This argument, however, cannot also be sustained in the absence of any evidence to show that the agreement of those contractors were not sent to the office of the Deputy Accountant General. 9. It was pointed out by the learned Advocate-General that tender was called for from the contractors for collection of materials for the flood-damage repair work of the Cuttack-Chandbali road at different reaches. The work was split up into three reaches. The Plaintiff tendered for all the reaches. G.C. Kanungo tendered only for the second and third reaches whereas the other contractor tendered only for the first one. The department distributed the work to different contractors and the Plaintiff was allotted the work from the 36th to tile 48th miles. The tenders of other contractors were also accepted relating to the other portions of the work. The agreement for the same kind of repair work on the same road from the 27th to 35th miles was made with G.C. Kanungo after approval of rate as would appear from Exts. J 11. The rate quoted by Banshidhar Behera was also approved with regard to 4th to 16th miles under agreement, Ext. J/2. In all these contracts the impugned special condition No. 1 appearing in Ext. 3 that Metal or Morrum to be stacked in boxes of 5'-1" X 5'-l" X 1'-1" are to be taken as 25 Cft. has been inserted. In other words, this was the uniform condition imposed in respect of all the contractors who were engaged in similar works of repair at different reaches; of the same flood-damaged Cuttack-Chandbali road. It also appears that the said condition has found mentioned in Exts., J, J/1, and J/1. 10. Mr. has been inserted. In other words, this was the uniform condition imposed in respect of all the contractors who were engaged in similar works of repair at different reaches; of the same flood-damaged Cuttack-Chandbali road. It also appears that the said condition has found mentioned in Exts., J, J/1, and J/1. 10. Mr. Misra, urged that the reason for deleting that clause in the case of the Plaintiff is that the Plaintiff had to carry the materials to a longer distance than the other contractors from Naraj quarry and other quarries so as to stack the same on the 36th mile of the road, whereas the work-Bites of other contractors were nearer to the quarry. There was no such condition in his tender. Moreover, the other special conditions put forward by the Plaintiff in his tender were rejected by the department. It is the evidence of the Superintending Engineer, (D.W.4) that the rate that was given in the tender notice and was accepted by the department was for 100 Cft. of metal and morrum, in compact quantities and natural voids were to be excluded. His evidence is that II % is the average void in metal and morrum stresses per 100 CFT and in case of rubbles, it is not possible to pre-estimate the average void as it depends upon the nature of stresses. According to him the special condition No. 1 was specifically put for allowing the usual voids and that explains why the actual measurement of 28 and odd Cft. was to be treated as 25 Cft. The Orissa specifications of the rate-schedule for the works and Transport Department were placed before us to show that in respect of rubbles, stones 1/6th volume for voids should normally be deducted from closely packed stacks and from loosely packed stacks the actual percentage of voids has to be determined on actual observation and deducted and 12!% voids have to be deducted from metal stacks. No doubt, it is open to the contracting parties to agree to any condition at variance with the specifications of the Government but the specification is an indication as to how in all measurement of materials such as metals and rubbles certain percentage of voids has to be excluded. 11. Mr. Misra urged that in course of the negotiation and before the impugned portion of Ext. 11. Mr. Misra urged that in course of the negotiation and before the impugned portion of Ext. H was finally deleted a less onerous condition was suggested for deduction of 8?% towards the voids and that explains the insertion of the words "inside box otherwise 8?% for voids will be deducted;" (Ext. B/4). No doubt it has not been satisfactorily explained by the State as to the circumstances in which this insertion (Ext. B/4) was made, but DW. 3 the Executive Engineer who admittedly signed the agreement has said that he penned through this portion of the condition No. 1 at the time of signing the agreement. It is not however the evidence of the Plaintiff that at any stage the Department agreed to a deduction of 8?% for voids ill the materials supplied by him. It is the evidence of the Executive Engineer (D W. 3) that he scored through the portion (Ext. B/4) and gave his initial Ext. B/1 in token of such correction. The Plaintiff does not breath a word about Ext. B/4 as to why it was at all necessary to put such a condition or to delete it. As I have said already, the Plaintiff's case is that the Defendant agreed to delete the impugned figures from the very start. Thus, the undisputed position is that none of the parties attach any importance to the insertion or deletion of that portion of condition No. 1 marked Ext. B/4 regarding 81/2% allowance for voids. It is also established by evidence that the correction with respect to the portion was made at the time of the agreement. 12. It is clear from the evidence that the Plaintiff also accepted the impugned condition (Ext. B) had acted upon the same. D.W.1 the sectional officer at the relevant time was in charge of the repair work of the flood-damaged portion of the Cuttack-Chandbali road. His evidence reveals that the Plaintiff used to stack the metals in boxes of 5'-1" x 5'-1" x 1'-1" and the measurement was taken as 25 Cft. If the metals and morrums were not so stacked, then 11 to 12% are to be deducted as voids. The materials stacked by the Plaintiff were measured in his presence and were entered in the measurement-book Ext. Band the Plaintiff filed to initial the relevant entries made in Ext. If the metals and morrums were not so stacked, then 11 to 12% are to be deducted as voids. The materials stacked by the Plaintiff were measured in his presence and were entered in the measurement-book Ext. Band the Plaintiff filed to initial the relevant entries made in Ext. B. In the case of rubbles, 15% was deducted for voids. As there was no special condition in the agreement regarding the deduction for voids in the rubbles the allowances made by him were approved by the Sub-divisional Officer, P.W.D. as per Ext. 2. The Plaintiff also accepted the same without objection and signed in the measurement-book. It further appears from Exts. 18,18/A and 18/B that the metal was stacked by the Plaintiff in boxes of the above dimension, viz., 5'-1" x 5'-1" x 1'-1" as mentioned in the special condition No. 1. Except the bare suggestion that these entries were written afterwards, nothing has been brought out to discredit this part of the evidence of D.W.1. The Plaintiff, on the other hand himself admits in his cross-examination that he originally used boxes of the size of 5' x 5' x 1', but the Defendant took measurement of 5'-l" x 5'-1" x 1'-1". Thus, both the oral and documentary evidence fully support the defence version of the case that in the original agreement the figures, 5'-1" x 5'-1" x 1'-1" were intact and that was one of the material conditions in the agreement which was not struck off and could not have been struck off at the time of execution of the agreement. 13. As against this evidence there is a mere assertion of the Plaintiff that the figures were scored through at the time of the execution of the agreement. His case is that portion was penned through in his presence. He is not sure when exactly it was struck off. At one stage of his cross-examination he says that "Ext. B was penned through before 3-2-1956 (the date of agreement) and he cannot say the exact date. At the same time he says that D.W.3 himself penned it through in his presence. He is not sure when exactly it was struck off. At one stage of his cross-examination he says that "Ext. B was penned through before 3-2-1956 (the date of agreement) and he cannot say the exact date. At the same time he says that D.W.3 himself penned it through in his presence. Though he has signed at a number of places in the agreement and has initialled some other corrections, he frankly admits that he has not initialled this part of the correction though that being the only material part of the special condition which directly affects his financial interest. This correction also does not bear the initial of D.W.3, though all other relevant corrections have been initialled by him. 14. Learned Counsel for the Appellant relied upon Exts. 4 and 5 are two of the letters written by the Executive Engineer to the Plaintiff on the 30th of July 1956 and 3rd of September 1956 respectively. In the first letter, the Plaintiff was asked to attend the office to initial some corrections in the agreement and in the second he was called upon to attest some additions in the same. The defence has not explained as to what were the corrections which the Plaintiff was required to initial in those two letters. Learned Counsel for the Plaintiff however, wants to make out that the corrections or additions referred to Exts. 4 and 5 did relate to the impugned figures (Ext. B). It is, however not the case of the Plaintiff that in response to the said letters, he went to the Office of the Executive Engineer and made the necessary endorsement. If the corrections in fact referred to the figures now under dispute, it was certainly expected of the Plaintiff that he would immediately go to the office and make the necessary initials. He did nothing of that kind. On the otherhand, he admits in his cross-examination that he cannot say for what purpose the letters, Exts. 4 and to were sent to him. It is clear from the evidence of D.W.4 that the figures (Ext. B) were intact at least on 23-3-57 when he signed (Ext. A/14) on Ext. 3 on behalf of the Government of Orissa. He asserts that if the disputed figures (Ext. B.) would have been scored through at the time when he signed it, he must have initialled the same from Ext. B) were intact at least on 23-3-57 when he signed (Ext. A/14) on Ext. 3 on behalf of the Government of Orissa. He asserts that if the disputed figures (Ext. B.) would have been scored through at the time when he signed it, he must have initialled the same from Ext. K/1 it appears that until 8-5-57 there was no scoring of this material portion in the document when the certified copy was sent to the office of the Deputy Accountant-General. Thus, it must have been penned through on a date subsequent to 8-5-57 or at least after 23-3-57 when DW. 4 the Superintending Engineer signed the agreement. The story put forth by the Plaintiff that it was scored through on the date of the agreement must accordingly be rejected. 15. It is the evidence of D.W.2 the Accountant that a certified copy of Ext. 3 was supplied to the Plaintiff. The Plaintiff has not produced the copy of the agreement supplied to him. That would have clearly shown if in fact such a condition was in existence at the date of the agreement. The Plaintiff on the otherhand denied to have received any such copy. His case is that only when a reply to the notice u/s 80 Code of CPC was received by his Advocate from the Secretary of the Works Department on 5-1-60 (Ext. 14), he became aware of the existence of such a condition and wanted a photostat copy of the disputed portion of the agreement. But no such copy was given to him. It is, however, clear from the evidence that the Plaintiff was fully aware of the condition from the date of the agreement, and no doubt the alteration was made subsequently. 16. Let us now proceed to examine what would be the effect of the remaining portion of the special condition No. 1 if the impugned portion is deleted. After deletion of that portion as also the admitted portion (Ext. B/4), it would read as follows; Metal and Morrum are to be stacked in boxes to be taken as 25 Cft. and distributed at road sides as per instructions. The deletion of the relevant figures from the above condition does not carry any sense. After deletion of that portion as also the admitted portion (Ext. B/4), it would read as follows; Metal and Morrum are to be stacked in boxes to be taken as 25 Cft. and distributed at road sides as per instructions. The deletion of the relevant figures from the above condition does not carry any sense. It was certainly not within the contemplation of the parties that whatever might be the quantity of the metal or morrum on the size of the boxes, the same has to be measured as 25 Cft. Mr. Misra's contention is that the Plaintiff left officials to make the necessary corrections and a man with the education of the Plaintiff, cannot possibly visualize at that stage, the grammatical or other effect of such correction. Such a contention can hardly have any substance. It was the duty of the Plaintiff, as a party to the agreement, to see that his interest was sufficiently safeguarded. 17. The next question is who would have deleted this part of the condition, with reference to the effect of such deletion. At this stage it is relevant to consider as to whose advantage such deletion would work out. It is needless to state that such deletion would operate against the interest of the Defendant, the State of Orissa, as is that event they would have to pay about 12% more and would pay the prices even for the voids. It is therefore reasonable to infer that the Defendant would not b) a party to the subsequent deletion of the clause. Their case from the beginning is that it was never deleted at the time of agreement and at all relevant times till the completion of the work and payment of the final bill it was there. Bat later on some how some manipulation had been made when the said Executive Division was abolished. It goes without saying that such a deletion operate to the advantage of the Plaintiff and in fact his case is that it was deleted on the date of the agreements Mr. Bat later on some how some manipulation had been made when the said Executive Division was abolished. It goes without saying that such a deletion operate to the advantage of the Plaintiff and in fact his case is that it was deleted on the date of the agreements Mr. Misra urged that it is immaterial to whose prejudice or benefit the alteration worked out and if the alteration is made while the document was in the custody of the Defendant, it has the same effect in avoiding the instrument as if made by the Defendant although not made with his knowledge or consent on the principle that he who has the custody of an instrument made for his benefit is bound to preserve it in its original state. In support of his contention he referred to a passage in Halsbury's Laws of England, III Edition, Vol. XI, para 624. But there it was also observed that it is doubtful if this rule applies when the alteration is made against the will and in fraud of the party having the custody. The learned author in support of the proposition relied upon a decision Lowe v. Fox (1837) 12 App. Cas 206 H.L. 217, where Lord Herschell observed: I do not feel at present prepared to say that in every case of an alteration which would invalidate the document when made with privity and knowledge of the person having the custody of it and relying upon it would invalidate it if made in fraud of him and against his will. In a case Kanchan Lalo v. Hari Prasad AIR 1951 Nag. 379, while examining the effect of a material alteration in a document fraudulently made by a stranger, Mudholkar, J. held that a material alteration made in a document by a stranger while it is in the possession of a party cannot disentitle that party from relying upon it when the alteration is made fraudulently. The learned Judge relied upon the observation of Lord Herschell in the case referred to above. In view of this legal position, the Defendant who had the custody of the document cannot be held liable for the fraudulent entry made by a stranger. Assuming that such a false alteration was made after the agreement, Ext. The learned Judge relied upon the observation of Lord Herschell in the case referred to above. In view of this legal position, the Defendant who had the custody of the document cannot be held liable for the fraudulent entry made by a stranger. Assuming that such a false alteration was made after the agreement, Ext. 3, was entered into by the parties and that it resulted in making the contract void, that is irrelevant for the purpose of the present case. Here it is not the case of the Plaintiff that the agreement has become void by reason of any material alteration. On the other hand his case is based upon the agreement itself on the footing that it was a valid one. His further case is that the alteration was there from the beginning and not subsequently made by any fraudulent act of any stranger or even of the Defendant. This aspect of the question has no direct bearing on the case. Assuming it is a case of fraud on the part of the Defendant, the onus is on the Plaintiff who alleges fraud to prove that by cogent evidence and mere suspicion is no proof of fraud. See AIR 1940 98 (Privy Council) . The Plaintiff has failed to prove any such fraud. In the result, the decision of the trial Court is upheld and the appeal dismissed with costs. G.K. Misra, J. 18. I agree. Final Result : Dismissed