Devender Sumra vs Satbir Singh

Dharam Chand Chaudhary, J.—Defendant is in second appeal, as he is aggrieved by the judgment and decree dated 31.12.2002 passed by learned Additional District Judge, Sirmour District at Nahan in Civil Appeal No. 73-N/13 of 2001, whereby learned lower appellate Court has affirmed the judgment and decree dated 28.8.2001 passed by learned Senior Sub Judge, Sirmour in Civil Suit No. 158/1 of 2000/99 and dismissed the appeal.

The plaintiff admittedly is owner in possession of land bearing Khasra No. 938/3 and 1031/1 measuring 191.45 square meters situated in mauza Naya Bazar, Nahan. The land is sloppy and as he had to raise construction of house thereon, defendant happens to came in his contact and introduced him to be a Government contractor and expert in construction of buildings. The plaintiff asked him to raise construction of double storeyed house over the suit land. Cutting work of the land and removal of debris was also to be executed by the defendant. The work was agreed to be executed in a sum of Rs. 5,50,000/- and the date of completion, 15.5.1999.

The plaintiff released payments to the defendant on various dates through cheques and also in cash and as on 26.4.1999 made the payment of a sum of Rs. 1,77,000/- to him. Against the amount so received by the defendant, he has executed the work costing Rs. 19,112/-. The plaintiff, therefore, has sought the decree for recovery of Rs. 1,57,887/- against the defendant and also damages to the tune of Rs. 40,000/- together with interest @ 18% per annum.

The defendant while admitting that he entered upon an agreement to construct the house of the plaintiff for a sum of Rs. 5,50,000/- has denied that a sum of Rs. 1,77,000/- was paid to him up to 26.04.1999. However, according to him, he received total sum of Rs. 1,55,000/- from the plaintiff and executed the work more than the payment so received. Therefore, he sought dismissal of the suit and sought the decree for the recovery of Rs. 50,000/- against the plaintiff by way of counter-claim.

On the pleadings of the parties following issues including additional issues were framed:

"1. Whether the plaintiff is entitled to claim Rs. 1,57,888/- as alleged in the plaint?..OPP

1-A. Whether the plaintiff is entitled for the amount of Rs. 40,000/- as damages, as prayed...OPP

Whether the plaintiff has no cause of action and locus-standi to file the suit? ...OPD.

Whether the defendant is entitled to special costs u/section 35-A of CPC for the suit being frivolous and vexatious, as alleged?..OPD.

Whether the defendant is entitled for a sum of Rs. 50,000/- as damages by way of counter-claim as prayed for?..OPD.

Whether the defendant has no cause of action to file counter-claim, as alleged?..OPP.

Whether the counter-claim is not maintainable, as alleged?..OPP.

6-A. Whether it was agreed to raise the retaining wall including cutting of soil and its removal for a sum of Rs. 1,50,000/- and structure was to be raised for Rs. 40,000/- as alleged. OPD.

6-B. Whether the plaintiff has backed out of his promise to do the construction work as agreed?..OPD.

6-C. Whether the defendant received only an amount of Rs. 1,55,000/- from the plaintiff, if so its effect? OPD.

6-D. Whether the work was to be completed in a sum of Rs. 5,50,000/- plus interest of Rs. 25,000/- extra as prayed for? OPD.

6-E. Whether entire construction was for Rs. 5,50,000/- for structure including wall only and Rs. 25,000/- again enhanced for retaining wall width? OPD.

6-F. Whether the plaintiff has no cause of action and locus standi to file the suit?..OPD.

Relief."

Learned trial Court after holding full trial and on appreciation of the evidence available on record has arrived at a conclusion that a sum of Rs. 1,77,000/- was paid by the plaintiff to the defendant and against this amount later could execute the work worth Rs. 74,390/- and as such passed the decree for the recovery of remaining amount i.e. Rs. 1,02,610/- in favour of the plaintiff together with proportionate costs and future interest @ 6% per annum.

The defendant aggrieved by the impugned judgment and decree has challenged the legality and validity thereof on the grounds inter-alia that the same is contrary to law and facts of the case. It is not at all proved that a sum of Rs. 1,77,000/- was given by the plaintiff to him from time to time. The evidence to arrive at a conclusion that a sum of Rs. 1,43,000/- was paid to him by cheques and Rs. 34,000/- in cash is stated to be result of misreading and misappreciation of the evidence available on record. The findings that he only executed the work amounting to Rs. 74,390/- are again contrary to law and facts of the case. The defendant allegedly has executed the work worth Rs. 1,50,390/- against the total amount i.e. Rs. 1,55,000/-, he received from the plaintiff. Therefore, both Courts below have erred in decreeing the suit for the recovery of Rs. 1,02,610/- against him.

The appeal has been admitted on the following substantial question of law:

"2. Whether Courts below have misconstrued, misinterpreted and misapplied report Ex. PW-6/A alongwith connected papers, reports Ext. DW-4/A & Ex. PX, statement of account Ex. D-1, withdrawal slip Ex. PW-6/A, receipt Ex. P-5, notice Ex. P-5, statement of PW-6, statements of DW-3 and DW-4 and other material on record and the view taken by the Courts below is not possible on the basis of material on record."

Mr. Karan Singh Kanwar, learned counsel representing the appellant-defendant has pointed out that in view of the evidence available on record, the suit could have not been decreed for the recovery of Rs. 1,02,610/- against the appellant-defendant. The costs of the work he executed on the spot have also been erroneously determined. Therefore, it is canvassed that the plaintiff is not entitled to the recovery of any amount from the appellant-defendant.

On the other hand, Mr. Bhupinder Gupta, learned Senior Advocate has urged that overwhelming evidence comprising oral as well as documentary lead to the only conclusion that a sum of Rs. 1,77,000/- was paid by the plaintiff to the defendant and also that it is proved from the testimony of PW-6, the Local Commissioner appointed by the Court that the work costing to Rs. 74,390/- has only been executed by the defendant. No objection was ever raised by the defendant to the report of Local Commissioner and as such both Courts below have rightly decreed the suit.

On analyzing the rival submissions and also coming to the substantial questions of law, the grouse of the defendant is that the evidence has not been appreciated in its right perspective and the suit erroneously decreed. It being so, the appellant-defendant wants this Court to determine question of legality and validity of the judgment and decree under challenge with the help of re-appraisal of the oral as well as documentary evidence available on record.

It is well established that the findings recorded by both Courts below on re-appraisal of the given facts and circumstances and also the evidence available on record should not normally be interfered with by the High Court in second appeal unless satisfied that misreading, mis-construction and mis-appreciation of the evidence by two Courts below has resulted in miscarriage of justice to the aggrieved party.

In the case in hand, the controversy is not much because the defendant admits that he being a Government contractor has entered into an agreement with the plaintiff for raising construction of the house in a sum of Rs. 5,50,000/-. While case of the plaintiff is that he has paid a sum of Rs. 1,77,000/- from time to time through cheques and in cash, the defendant admits the payment of Rs. 1,55,000/- made to him by the plaintiff. The onus to prove the payment made to the defendant was upon the plaintiff. He has placed reliance on the cheques Ext. PW-7/A to Ext. PW-7/F and Ext. PW-8/A. The amount under these cheques comes to Rs. 1,43,000/-, therefore, the payment of this much amount is satisfactorily proved. However, if coming to the payment of Rs. 34,000/-, no plausible evidence except for the statement of plaintiff has come on record to show that this much amount was paid in cash by him to the defendant. Otherwise also, if looking to the mode of payment i.e. through cheques, it is not understandable as to why a sum of Rs. 34,000/- would have been paid to the defendant in cash. Much has been said about drawal of Rs. 27,000/- by the plaintiff from the account of his wife on 16.3.1999 vide withdrawal form Ext. PW-6/A. However, it is difficult to believe that out of this amount, Rs. 20,000/- was paid to defendant in cash. If coming to Ext. P-10, the same no doubt speaks about the payment of different amounts i.e. to the tune of Rs. 97,000/-, however, by which mode, nothing can be inferred from this document. Receipt Ext. P-9 also tells us about the payment of Rs. 11,500/- in cash. No doubt, the defendant admits the payment of Rs. 97,000/- made to him, as reflected in Ext. P-10, however, Ext. P-9 and Ext. P-10 cannot also be taken to believe that plaintiff has paid a sum of Rs. 34,000/- to the defendant in cash. Therefore, there is no cogent and reliable evidence to arrive at a conclusion that a sum of Rs. 34,000/- was paid by the plaintiff to the defendant in cash. Any how, there is no dispute qua receipt of Rs. 1,55,000/- by the defendant from the plaintiff. Therefore, in the considered opinion of this Court, it is this amount for the recovery whereof the suit should have been decreed.

Now, if coming to the second limb of arguments that the defendant has executed the work costing to Rs. 1,50,695/- and not Rs. 74,390/-, it would not be improper to conclude that the defendant has failed to prove with the help of cogent and reliable evidence that cost of work he executed was Rs. 1,50,695/-. The evidence as has come on record by way statement of DW-6 cannot be made basis to arrive at a conclusion that cost of the work he executed was Rs. 1,50,695/- for the reason that this witness has admitted the report Ext. PW-6/A submitted by the Local Commissioner to be correct. No doubt, he differs with this report on two counts, namely, PW-6 has worked out costs of cutting by taking into consideration the blasting material and also that labour charges taken into consideration by PW-6 were that on Government rates, whereas, labour charges otherwise than the Government rates were on higher side. There is, however, no basis of such criticism to the report Ext. PW-6/A he made. On the other hand, PW-6 was appointed as Local Commissioner by the Court. He has conducted the spot inspection and then submitted the report. The defendant has not raised any objection to the report submitted by the Local Commissioner. PW-6 while assessing the costs of the work executed on the spot has made the Government schedule of rates of 1999 as basis. Therefore, there is no reason to disbelieve the testimony of PW-6 and the report Ext. PW-6/A he submitted. Both Courts below have rightly accepted the report so far as the same speaks qua assessment of costs of work executed on the spot, on the basis of Government Schedule of rates of 1999. Both Courts below have, therefore, not committed any illegality or irregularity while arriving at a conclusion that costs of the work executed on the spot was Rs. 74,390/-. The suit, therefore, could have been decreed for the recovery of a sum of ( Rs. 1,55,000-74,390=80,610/-) instead of Rs. 1,02,610/-. The judgment and decree under challenge, therefore, need modification only to this limited extent. The substantial question of law formulated in this appeal is answered accordingly.

In view of what has been said hereinabove, this appeal is partly allowed. Consequently, the suit is decreed for the recovery of Rs. 80,610/- against the defendant together with proportionate costs and future interest @ 6% per annum. The impugned judgment and decree is modified accordingly. No orders so as to costs.