JUDGMENT Deoki Nandan, J. - This is a defendant's Second Appeal from a decree for recovery of Rs. 16,311-65 p. with future interest at six per cent per annum. 2. The plaintiff-respondent undertook a contract for the work of raising an embankment for the sewage distribution channel at Agra. It was the plaintiffs case that same extra work had to to undertaken in the course of the contract for which payment was denied by the defendant State and not only that certain deductions were wrongly made from the bill for work done. Separate amounts were claimed item wise as follows:- 1. Cutting of crop as per details in paragraph 5 of the plaint-------- Rs 1,654-06 2. Filling up well as per details in paragraph 6 of the plaint..... Rs. 266-25 3. Cutting of embankment as pera details in pars 7 of the plaint... Rs. 1,680-00 4. Extra lead for carrying earth as per details in para 9 of the plaint... Rs. 12,806.34 5. Wrongful deduction of penalty from the final bill as per details in para 11 of the plaint..... Rs. 1,455-00 Total Rs. 17,861.65 3. As many as eight issues were framed by the trial court. The trial court allowed the claim in respect of all the items, except that, as against the claim of Rs. 1680/- for cutting of the embankment against item No. 3, the plaintiffs claim was allowed for Rs. 130/- only. The trial court did not award any future interest, but, on appeal by the defendant state of Uttar Pradesh and cross objection therein by the plaintiff-respondent, the lower appellate court not only confirmed the decree of the trial court but also allowed future interest thereon at six per cent per annum. 4. The correctness of the findings on issue No. 6, which raised the question whether the notice under S. 80 of the Civil P. C. was invalid, and on issue No. 8, which raised the question whether the suit was barred by Article 115 of the Limitation Act, 1908, was not assailed before me, but the correctness of the decree under appeal was assailed in respect of each item and it was urged that in the absence of a contract, the defendant State was not liable to pay any thing for any of the items of extra work claimed to have been done by the plaintiff respondent. Reliance was placed, in this context, on Cl. 13, of the general terms of the contract (Ext. 25) and it was urged that the plaintiff-respondent should not have undertaken any extra work without, the settlement of a rate for items not provided in the contract. I shall revert to this basic question which was raised by the learned Standing Counsel a little later, for, I find that the rate for the major item constituting the plaintiffs claim, namely, the fourth item In respect of the extra lead in carrying earth for which the sum of Rs. 12,806-34 P was claimed, is already provided for in the contract. The dispute under this item was not that no rate was settled for the extra lead over five chains, but was that the plaintiff-respondent ought to have excavated and carried all earth from places within a lead of five chains. It was not suggested that the lead over which different quantities of earth were claimed to have been carried was incorrect. The defendant's objection was that the plaintiff ought not to have excavated and carried earth from places outside a lead of five chains. The contract shows that the objection so raised was wholly unjustified. 5. Item No. 1 related to excavation of earth from borrow pits in ordinary soil up to 2 feet depth and making embankment etc. up to a horizontal lead of one chain. The estimated quantity of that work was shown to be ten lacs cubic feet. Item No. 2 provided for the same item as item No. 1 but for cases where the earth had to be obtained either by deepening some tank or by clearing the mounds and transferring the same to the site of work. Under this item, different rates were provided for horizontal lead up to five chains, up to ten chains, up to fifteen chains, up to twenty chains, up to half a mile and up to one mile. 6. This item of work constituted the main part of the contract. The plaintiff was required to excavate the earth from places pointed out by the officers of the defendant State and to carry the same to the site of the embankment and lay it at that place according to the specifications for construction of the embankment. 6. This item of work constituted the main part of the contract. The plaintiff was required to excavate the earth from places pointed out by the officers of the defendant State and to carry the same to the site of the embankment and lay it at that place according to the specifications for construction of the embankment. The provision of rates for carrying the earth from leads in excess of five chains showed that it was anticipated that some earth will have to be carried from leads of more than five chains. Even the estimated quantity was specified for leads of more than five chains. The plaintiff claimed that he was entitled to be paid for the work actually done according to the agreed rates. Although the running bills of the plaintiff had been paid at the agreed rates for leads of more than five chains, an objection was raised later and the plaintiff was not paid for the excess lead over five chains. The lower appellate court has observed that Cl 15 of the contract clearly provided that the earth for the construction of the embankment shall be taken either from the borrow pits or from some other. sources like mounds or by deepening some tank which will be indicated by the Engineer Incharge and the earth work shall be carried out in accordance with the plans and drawings of the work or as directed by the Engineer. The plaintiff claimed for the work actually done and at the agreed rates specified in the contract. There was no justification for limiting payment at the maximum rate provided for a lead of five chains and for not paying the amount of Rs. 12,806.34 P. which was claimed by the plaintiff in respect of this item. At any rate, nothing was said or suggested before me to justify the action of the defendant State in refusing to pay this amount. The view of the two courts below, on this point, it correct and eminently just: 7. This brings me to the other items. 8. The first item related to the claim of Rs. 1,654.06 P. for cutting of crop. It is not disputed that the plaintiff was required to cut the crop, and the rate of Rs. 2/1/6 per thousand Sq. feet area was agreed to for the same, and that the claim was made at the agreed rate. 8. The first item related to the claim of Rs. 1,654.06 P. for cutting of crop. It is not disputed that the plaintiff was required to cut the crop, and the rate of Rs. 2/1/6 per thousand Sq. feet area was agreed to for the same, and that the claim was made at the agreed rate. The objection was that the crop, which was cut away, was not surrendered to the defendant State. It appears that, according to the Engineer Incharge, the cut away crop was of no value. It had to be removed in order to clear the land for the work to be executed, and the plaintiff did not bother about surrendering the husk, to which the crop must have been reduced after being cut by the labourers. The rate was already agreed upon and the crop was deemed to be a waste and of no value after being cut away. There was thus no justification for not making the payment of Rs. 1,654.06 P to the plaintiff for cutting the crop at the agreed rate of Rs. 2/1/6 per thousand Sq. feet. The decree of the two courts below for recovery of this amount is, therefore, confirmed. 9. The second item related to the filing up of a well. The claim for payment of Rs. 266.25 P for the same was admitted and decreed accordingly. 10. The last item related to the deduction of Rs. 1,455/- , which was sought to be trade as penalty for delay in completion of the work, from the final bill of the plaintiff. The two courts below have found that there was no justification whatsoever for levy of any penalty on account of the delay in completion of the work. The work was, in fact, allowed to be continued and completed up to 31st Mar. 1957. I do not find any good ground for differing from the view taken by the two courts below on this point. 11. Before closing, I must notice the argument advanced by the learned Standing Counsel to the effect that no payment could be made for work done unless there was a prior agreement with the state. The argument had only to be stated to be rejected. The contract for work was already there. The contract provided for extra work, for which there may be no agreed rate. The argument had only to be stated to be rejected. The contract for work was already there. The contract provided for extra work, for which there may be no agreed rate. The extra work had to be done when required by the Engineer Incharge. It was for the Engineer Incharge to insist upon an agreement about the rate of extra items of work, for which there was no provision in the contract. It was upon the Engineer Incharge not to have the extra work done until the contract was entered upon to do the extra work at the rate agreed to by the Officer authorised to do so on behalf of the Government. But, having got the extra work done in accordance with the conditions of the contract under the instructions of the Engineer Incharge, the defendant Government could not turn round and say that it will not pay a reasonable amount for the work done, of which benefit had been taken by it. I may also point out that this argument had no bearing in so far as the major item of Rs. 12,806.34 P claimed for carrying earth over leads above five chains was concerned. 12. With regard to the third item, it appears that the originally proposed height of the embankment was reduced, with the result that its width, at the base was also reduced. The plaintiff was thereupon, required to cut the extra width of the embankment, which he had already laid to the required smaller width in keeping with the lower height of the embankment. The contract did not provide any rate for this work. The defendant's objection was that the plaintiff should not have done this extra work unless a rate was agreed upon. This argument was based on clause 13 of the general conditions of the contract. After providing that the Engineer shall have power to alter the original specifications etc. The contract did not provide any rate for this work. The defendant's objection was that the plaintiff should not have done this extra work unless a rate was agreed upon. This argument was based on clause 13 of the general conditions of the contract. After providing that the Engineer shall have power to alter the original specifications etc. of the work, and that the contractor shall be bound to carry out the work in accordance with the Engineer's instructions, the clause provided that "any additional work which the contractor may be directed to do in the manner aboded 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 rates as are specified in the schedule of Rates marked G H and I for the main work - ----And if the additional work includes any class of work for which no rate is provided in this contract, then such class of work shall be carried out at rates to be agree upon between the engineer and contractor in writing prior to the work being taken in hand". The objection to pay for the additional work so done on the instructions of the Engineer Incharge on account of the change of specification, on the ground that a rate had not been agreed upon before taking up the extra work is a kind of cussedness, of which probably a Government department alone is capable of. Having got the work done and having taken the benefit of it, the defendant could not have refused to pay for it at a reasonable rate. I find it impossible to accept the argument that the plaintiff was not entitled to payment because he should have not taken up the extra work until such time as its rate was agreed upon in writing by the Officers of the defendant State. The trial court has allowed only Rs. 130/- for this item of work and the lower appellate court has confirmed the same. I find no justification whatsoever for interfering with the decree for recovery of Rs. 130/- on account of this item. 13. In the result, the appeal fails and is dismissed with costs.