Karnataka High Court
Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18 January, 2023
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
RSA No.7050/2009 (REC/MON)
BETWEEN
SANGARAJ SARNAD GOUDAR
S/O KALLANNA GOUDA SARNAD
AGE: 56 YEARS, OCC: LECTURER
R/O DATTANAGAR, JEWARGI COLONY
GULBARGA
...APPELLANT
(BY SRI M. M. PATIL, ADVOCATE)
AND
NIRANJAN S/O KAMALAKAR RAO
AGE:45 YEARS, OCC: CONTRACTOR
R/O BRAHMAPUR, GULBARGA
...RESPONDENT
(BY SRI YASHAS S. DIKSHIT, ADVOCATE FOR
SRI GANESH S. KALBURGI AND
SMT. JYOTI KULKARNI, ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DTD. 01.01.2009
PASSED IN R.A.NO.30/2005 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE AT GULBARGA PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD.
22.03.2005 PASSED IN O.S.NO.211/1996 ON THE FILE OF THE
II ADDL. CIVIL JUDGE (SR.DN.) GULBARGA.
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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
10.01.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Second Appeal is filed by the Defendant seeking to set aside the Judgment and Decree dated 01.01.2009 passed in Regular Appeal No.30/2005 by the Principal District Judge at Gulbarga.
2. The parties are referred to as per their rankings before the Trial Court for the purpose of convenience.
3. The Plaintiff filed a suit in O.S. No.211/1996 for recovery of a sum of `98,272/- together with interest and costs from the Defendant. It is the case of the Plaintiff that he is a Contractor and the Defendant had entrusted him the work of construction of a house in his plot bearing No.56 at Sy. No.89/1/A at Datta Nagar, Jewargi Colony, Gulbarga measuring 40x60; that the Plaintiff and the Defendant executed an agreement dated 27.4.1994 in this 3 regard and the plan as per which the construction was required to be made was annexed to the Agreement; that it was specifically agreed between the plaintiff and defendant that if any extra construction or any deviation from the original agreement was made then the cost of the deviation would be paid by the defendant.
4. It is the further case of the Plaintiff that he started the construction work as per the agreement in the first week of May 1994 and in the course of construction, he carried out certain extra works and that the extra construction carried out was as per the instructions of the Defendant; that the Plaintiff completed the construction work in the month of March 1995 and the last payment made by the Defendant was `20,000/- on 06.03.1995; that the Plaintiff had carried out extra construction of a sum of `80,272/- and that the Defendant had promised to pay the amount of extra work within a short period. However, since he did not pay the same, the Plaintiff got issued a legal notice and it was served on the Defendant. 4 Thereafter, the Plaintiff filed a Suit claiming a sum of `80,272/- towards extra work carried out and a sum of `18,000/- towards interest. Hence, the Suit was filed for a recovery of total sum of `98,272/- together with further interest.
5. The Defendant entered appearance and contested the suit of the Plaintiff and filed written statement inter alia contending that no extra work/construction was carried out by the Plaintiff as averred in the plaint and that the Plaintiff had issued certificates on various dates detailing the works carried out. Further that, based on the said certificate, the HDFC released the loan amount to him; The Defendant further averred that the Plaintiff had used substandard material for construction of work, due to which cracks have been developed in the roof and walls and as such, denied his liability to pay any further amount to the Plaintiff and sought for dismissal of the suit.
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6. The Trial Court, pursuant to the pleadings filed by the parties, framed five issues. The Plaintiff examined himself as PW.1 and got marked three documents i.e. Exs.P1 to P3. The Defendant examined himself as DW.1. However, no documents were marked in evidence. The Trial Court vide its judgment and decree dated 22.03.2005, dismissed the suit filed by the Plaintiff.
7. Being aggrieved, the Plaintiff filed R.A. No.30/2005. The Defendant who was arrayed as Respondent before the First Appellate Court entered appearance in the said Appeal and contested the same. The First Appellate Court vide its judgment dated 01.01.2009, allowed the Appeal filed by the Plaintiff, set aside the Judgment and Decree passed by the Trial Court and decreed the suit of the Plaintiff in part and held that the Plaintiff was entitled from the Defendant in a sum of `43,281/- together with proportionate cost. Being aggrieved, the present Second Appeal is filed. 6
8. This Court vide order dated 21.08.2009, admitted the above Second Appeal and framed the following substantial question of law for consideration in this second appeal:
Whether in the facts and circumstances of the case, the Appellate Court was justified in reversing the findings of the Trial Court and decreeing the suit?
9. The learned counsel for the appellant/defendant contends that there is no pleading regarding extra work in the plaint; that the plaintiff had completed the construction work and had received the entire payments and after one year of the same, the demand for extra payment has been made; that the extra work carried out has not been proved; that despite the defendant filing objections to the Commissioner's Report, the Commissioner has not been examined by the plaintiff and hence, the first appellate Court ought not to have relied on the Commissioner's Report. Hence, he seeks for answering of the substantial question of law in the 7 negative and for allowing the appeal and granting of the reliefs sought for therein.
10. Per contra, learned counsel for the respondent/plaintiff submits that the averments made in paragraph No.5 of the plaint regarding extra construction has not been denied by the defendant in his written statement; no ground has been taken in the above appeal regarding consideration of the Commissioner's evidence by the first appellate Court and hence, the appellant cannot be permitted to urge the said contention; that the agreement executed between the parties being undisputed and the said agreement contains clause for payment towards any extra work done by the plaintiff and the defendant in his cross-examination admitting to the same, he is liable to pay for the extra work done by the plaintiff; that the Commissioner's Report clearly discloses carrying out of the extra work by the plaintiff and the extra work having been carried out by the plaintiff, he is liable to be paid having regard to Section 70 of the Indian Contract 8 Act. In reliance of his contention that in the absence of the Commissioner being examined also, the report filed can be considered, the learned counsel relies on a judgment rendered by a Coordinate Bench of this Court in the case of Parappa and Another vs. Bhimappa and Another1.
11. I have considered the submissions made by both the learned counsel and perused the material available on record.
12. The undisputed facts are that the defendant and the plaintiff entered into an agreement dated 27.04.1994 for construction of a residential house in the property of the defendant and that the said construction work was completed by the plaintiff. The dispute is only with regard to the extra work allegedly done by the plaintiff, which the defendant has denied. The Trial Court, after both the parties filed their respective pleadings has framed the following five issues:
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ILR 2008 KAR 1840 9
1) Whether the plaintiff proves that the defendant has consented for the extra construction work cost shown in Annexure-A of the defendant's house?
2) Whether the plaintiff is entitled to recover `80,272/- as the cost of extra construction work mentioned in Annexure-A and interest of `18,000/- as per agreement from the defendant?
3) Whether the defendant proves that the plaintiff has constructed house as per agreement between the parties, hence, he is not liable to pay the suit amount towards cost of extra construction work?
4) Whether the plaintiff is entitled for the decree prayed in the plaint?
5) What decree or order?
13. The Trial Court while considering issue Nos.1 to 3 has recorded the following findings:
i. The material on record substantially prove that the defendant having agreed to pay the extra 10 charges for any construction or deviation from the approved plan.
ii. That as per the agreement, the earthwork for foundation was to be dug up to 3' average, but, the plaintiff contends has done the work of foundation to a depth of 5½' all over because there was no hard soil till that depth. However, the Commissioner in his report has noticed that the depth of foundation on all the four corners of the building is 1.40 metres or 4.59'. iii. As per the agreement, the parties are required to do earthwork to a depth of 3' only. Hence, the plaintiff was not entitled to extra charges towards the earthwork for foundation done beyond the said 3'.
iv. The plaintiff was not entitled for extra charges towards soiling for floorings.
v. That the Court is not in a position to appreciate whether the plaintiff has fixed extra windows in 11 the said house more than what is specified in the approved plan.
vi. That the plaintiff has done extra work by fixing five more doors in the house.
vii. That the plaintiff has failed to prove any extra work done towards Rex and Shelves.
viii. That the plaintiff has done extra work in respect of projection of roofing.
ix. There is no material to demonstrate that the plaintiff has done extra work of roof, plaster, sevara finish in hall and dining, sundry works and parapet wall.
x. The plaintiff was not entitled to extra amounts towards plumbing/sanitary work.
xi. The plaintiff has not proved any extra work of plastering and finishing.
xii. That the agreement between the parties did not specify the rates at which the plaintiff is entitled to for extra work.12
xiii. The material on record indicates that the plaintiff has done extra work in respect of the doors and roofing projection.
xiv. That there is no agreement to pay the interest. The Trial Court held that the plaintiff has failed to prove issue Nos.1 to 4 and dismissed the suit.
14. It view of the aforementioned, it is clear that even the Trial Court has considered the Commissioner's Report and has noticed that the plaintiff has done extra work. However, merely because there was no agreed rate fixed in the agreement with regard to the extra work, the Trial Court has dismissed the suit of the plaintiff.
15. The first appellate Court has re-appreciated the entire material on record including the Commissioner's Report and has held that the Commissioner's Report is the part of the record and the same can be looked into. The first appellate Court has held that the plaintiff has carried 13 out the following extra work and the amounts to which the plaintiff is entitled to:
i. With regard to extra work done by the plaintiff regarding the foundation which has been done for 1.59' at the rate of 54.26 per cubic metre, and the rubble filling, the plaintiff is entitled to `374/- and `13,289/- and regarding soling of the flooring `5,542/-
ii. That the plaintiff has fixed five extra doors and is entitled to `15,993/- and `772/-.
iii. The plaintiff has done projection of roof on all sides of the wall to the extent of 3' and the plaintiff is entitled to `2,788/- and `523/- for plastering of the extra projection.
iv. The plaintiff is entitled to a sum of `4,000/- towards landing room to the staircase.
Hence, the plaintiff is entitled to extra work in a sum of `43,281/- together with proportionate cost. 14
16. The first appellate Court has also relied on the Commissioner's Report and has also noticed other material on record for the purpose of re-appreciating the fact that the plaintiff has done extra work and for the purpose of ascertaining the amount to be awarded towards extra work done by the plaintiff. The first appellate Court has noticed that the rates stated by the plaintiff has not been challenged in cross-examination. That the defendant, except contending that he is not liable to pay the extra work done by the plaintiff, has not stated about the rate which has been stated by the plaintiff regarding the extra work done by him. Hence, it is clear that there is a concurrent finding of fact that the plaintiff has done extra work and the appellant/defendant has failed to demonstrate as to how the said concurrent finding of fact is erroneous and liable to be interfered with in this second appeal.
17. The first appellate Court has further noticed that there is a specific clause in the agreement dated 15 27.04.1994 that contemplates carrying out of extra work which is to be paid by the defendant. The same has also been admitted in the cross-examination of DW.1.
18. Further, both the Trial Court and the first appellate Court have relied on the Commissioner's Report. The first appellate Court has recorded a finding that the Commissioner's Report can be looked into as it found part of the record irrespective as to whether the Commissioner is examined or not. A Coordinate Bench of this Court in the case of Parappa (supra), has held as follows:
"22. xxx It is thereafter when the commissioner/expert submits his report to the Court which appointed him, the report of the Commissioner shall become evidence in the suit and shall form part of the record.
Therefore, the report of the commissioner/expert prepared and submitted on the orders of the Courts stands on a totally different footing in the matter of admissibility than the report of an expert prepared at the instance of either of the parties of the suit or 16 at the instance of the prosecution in a criminal case xxx.
23. Therefore, the expert becomes a Commissioner only when court appoints him under order XXVI of the CPC. The expert is only a witness for the prosecution in a criminal case, and a witness for the party who appointed him in civil cases. It is only the report of the Commissioner, who is appointed by the Court, shall be evidence in the suit and shall form part of the record and it is not necessary to examine him and get it marked through him to make it evidence."
(Emphasis supplied)
19. Having regard to the judgment of this Court in the case of Parappa (supra), it is clear that the Commissioner's Report can be relied upon and shall become evidence in the suit and shall form part of the record, even in the absence of Commissioner being examined and the said report being marked and exhibited in the case.
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20. The appellant/defendant in this second appeal has not pointed out any specific rate of any specific extra work that has been assessed by the first appellate Court being either contrary to the material on record or the assessment being made without any material on record for the same to be erroneous.
21. The first appellate Court has noticed all the materials on record and re-appreciated the entire matter. As noticed above, even the Trial Court had recorded that the plaintiff had carried out extra work. However, only on the ground that the rate at which the plaintiff is sought to be paid for the extra work was not agreed upon between the parties, the Trial Court has dismissed the suit of the plaintiff. The first appellate Court having noticed each of the items of the extra work and the rate payable for the same, has reversed the judgment and decree of the Trial Court and partly decreed the suit in favour of the plaintiff only to the extent of `43,821/- together with proportionate cost. In the absence of any evidence regarding interest, 18 the first appellate Court has rightly not awarded any interest.
22. The first appellate Court has noticed the material on record and set out adequate reasons while partly decreeing the suit filed by the plaintiff. Hence, it cannot be said that there was no material basis or justification for the first appellate Court to reverse the findings of the Trial Court and decreeing the suit of the plaintiff in part. In view of the same, substantial question of law framed for consideration by this Court is answered in the affirmative and against the appellant.
23. Hence, the above appeal is dismissed. The judgment and decree dated 01.01.2009 passed in R.A.No.30/2005 by the Principal District Judge at Gulbarga decreeing the suit of the plaintiff in part holding that the plaintiff is entitled to `43,281/- from the defendant with proportionate cost is upheld.
Sd/-
JUDGE BS/Srt