Himachal Pradesh High Court
Rajesh Kumar vs Ram Parkash on 2 August, 2016
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.628 of 2005 alongwith
RSA No.17 of 2006.
.
Reserved on: 27.7.2016
Date of decision: 02/08/2016.
RSA No. 628 of 2005
Rajesh Kumar ..Appellant.
of
Versus
Ram Parkash ..Respondent.
RSA No. 17 of 2006
rt
Ram Parkash ..Appellant.
Versus
Rajesh Kumar and another ..Respondents.
Coram
The Hon'ble Mr.Justice Sureshwar Thakur, J.
Whether approved for reporting?1 Yes.
In RSA No. 628 of 2005For the appellant: Mr. R.K.Bawa, Sr. Advocate with Mr. Jeevesh Sharma, Advocate.
For the respondent: Mr. Ajay Dhiman, Advocate.
In RSA No. 17 of 2006For the appellant: Mr. Ajay Dhiman, Advocate.
For the respondents: Mr. R.K.Bawa, Sr. Advocate with Mr. Jeevesh Sharma for respondent No.1.
1Whether the reporters of the local papers may be allowed to see the Judgment?
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Sureshwar Thakur, J:
RSA No. 628 of 2005.
.
1. This appeal stands directed against the impugned judgement and decree rendered by the learned District Judge, Shimla whereby, he, while modifying the judgement and decree of the learned trial Court whereby a sum of of Rs.1,00,000/- stood assessed as damages by it qua the plaintiff reduced in a sum of Rs.30,000/- the quantum of rt damages qua the plaintiff.RSA No. 17 of 2006
2. This appeal stands directed against the impugned judgement and decree of the learned First Appellate Court whereby it reduced the quantum of damages payable to the plaintiff from Rs.1,00,000/- as stood assessed vis.a.vis him by the learned trial Court to a sum of Rs.30,000/-
3. Since both the appeals arise out of a common judgement hence they are liable to be disposed of by a common rendition of this Court.
4. The facts necessary for rendering a decision on the instant appeals are that the plaintiff owner of land in Mauja Pagog and for construction thereon entered into an agreement with the defendants. Defendants agreed to ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...3...
construct house of the plaintiff as per the approved map upto lintel level by 15th September, 1998. Plaintiff under .
the agreement was required to pay Rs.2,75,000/- in installments, which payment was made to defendants. It is alleged that defendants failed to complete the of construction work within the prescribed period, as per agreed specifications. They used sub standard material.
rt Subsequently, defendant No.1 approached the plaintiff that earlier work was being carried out by both the defendants and hence forth, it would be carried out alone by him by excluding defendant No.2. On such request time to execute the work was extended till 30th November, 1998. Despite such undertaking, defendant No.1 failed to complete the work within stipulated period.
The work carried out by the defendants was of sub standard thereby caused a loss of Rs.1 lac to the plaintiff.
Further allegation of the plaintiff is of the construction work was not done as per the Map and they have erected the front wall at the width of 6" by filling its back gap and thereby squeezed the plot and thereby caused a loss of Rs.10,000/- to the plaintiff. Further allegation of the ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...4...
plaintiff is of the back wall not erected as per the Map and thereby caused damages to the tune of Rs.5,000/- to .
the plaintiff. The extension work as required under the map was not done and thereby the plaintiff alleges to cause a loss of Rs.15,000/- to him. The defendants have of also not constructed Septic Tank which caused a loss of Rs.15,000/- to him. The defendants failed to erect 9 rt inches Brick wall in the first floor which caused a loss of Rs.10,000/- to him. The further allegation of the plaintiff is of the Iron bars as per the agreement not used and thereby caused a loss of Rs.30,000/-. It is further alleged by the plaintiff that the defendants have not completed the work within the stipulated period and caused a loss of Rs.15,000/-.
5. The defendants contested the suit by filing written statement. They admitted entering into agreement with the plaintiff for construction of his house. But denied that construction was not carried out in terms of the agreement. It is averred that as per the agreement water for construction was to be provided by the plaintiff but they failed to do so. It is further pleaded that the ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...5...
plaintiff had to remove debris and Malwa from the land and on asking of the plaintiff they themselves arranged to .
carry debris and amount of such extra carriage was not paid by the plaintiff. It is further pleaded that the development work of the plot and construction was made of as per agreement and no objection for such construction was ever raised by the plaintiff. It is averred that high rt tension wire was passing over the house and the wire was not got removed by the plaintiff which delayed the execution of the work.
6. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted.
7. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:-
(i) Whether the plaintiff is entitled to recover Rs.1,00,000/- by way of damages as alleged? OPP.
(ii) Whether this suit is not maintainable in the present form? OPD.::: Downloaded on - 15/04/2017 20:56:43 :::HCHP
...6...
(iii) Whether the plaintiff is estopped from filing this suit by his act and conduct? OPD.
.
(iv) Relief.
8. On an appraisal of evidence, adduced before the learned trial Court it decreed the suit of the plaintiff whereas the learned First Appellate Court modified its of decree by reducing in a sum of Rs.30,000/- the damages qua the plaintiff.
9. Now rt the plaintiff/appellant has instituted the Regular Second Appeal bearing RSA No. 17 of 2006 before this Court, assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for admission on 5.4.2006 this Court admitted the appeal on the hereinafter extracted substantial question of law:-
"Whether findings of reversal by the learned Appellate Authority are dehors the evidence on record."
10. The defendant Rajesh Kumar has also instituted the Regular Second Appear bearing RSA No.628 of 2005 before this Court assailing the findings recorded by the learned first Appellate Court, in, its impugned judgment and decree. When the appeal came up for ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...7...
admission on 19.4.2006 this Court admitted the appeal on the hereinafter extracted substantial question of law:-
.
"Whether the respondent-plaintiff having himself paid for 8 mm thick iron bars could not have complained the breach of conditions of agreement that iron bar of not less than 10mm thickness was to be used in the construction?"
of Substantial questions of law:
11. Under an agreement recorded inter se the rt plaintiff and the defendants comprised in Ext.PW-1/A the defendants in the manner spelt out therein stood encumbered with an obligation to carry out the relevant construction work. The agreement aforesaid stood breached by the defendants who though stood enjoined thereunder to erect the retaining wall holding a width of 12 inches whereas they constructed a wall holding a width of 6 inches besides the defendants stood averred to infract Ext.PW-1/A by theirs erecting the relevant wall in a portion whereat it was not enjoined to be erected sequelling reduction in the area of the plot whereupon a loss of Rs.10,000/- stood entailed upon the plaintiff. A further breach of Ext.PW-1/A by the defendants is ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...8...
averred to arise from theirs not constructing a septic tank hence entailing upon him a loss of Rs.15,000/-. The .
purported breach on the part of the defendants qua theirs under Ext.PW-1/A standing enjoined to erect a wall holding a width of 12 inches in departure wherefrom they of erected a wall holding a width of 6 inches with a concomitant entailment of loss to the plaintiff whereupon rt he seeks pecuniary indemnification from the defendants constituted in a sum of Rs.10,000/- is wholly rudderless, given the relevant agreement comprised in Ext.PW-1/A omitting to specify the width of the retaining wall.
Hence, when in the defendants' constructing a retaining wall holding a width of six inches they did not infract any condition of Ext.PW-1/A, it would be untenable to hold qua theirs being liable to indemnify the plaintiff for any loss constituted in a sum of Rs.10,000/-. Moreover, the further purported breach of the defendants in theirs not constructing a septic tank though they stood enjoined to construct it, for omission of construction whereof damages in a sum of Rs.15,000/- stand claimed by the plaintiff from them, holds no vigour prominently when the ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...9...
plaintiff in his cross-examination acquiesces to the factum of the septic tank standing constructed. Since no .
evidence stands adduced by the plaintiff qua the construction of the septic tank by the defendants being in deviation to agreement Ext.PW-1/A, in sequel a sum of of Rs.15,000/- claimed as damages by the plaintiff vis-a-vis the defendants is not awardable to him.
12. rt Be that as it may, the plaintiff had claimed damages arising from the factum of the defendants not within the time stipulated in Ext.PW-1/A completing the relevant construction work. However, with an evident display of a high tension electricity wire occurring at a distance of 8 feet from the lentil of the plaintiff, for removal whereof the plaintiff had sued the State Electricity Board especially when its existence thereat had pre-empted the defendants to within the time stipulated in Ext.PW-1/A complete the relevant construction work, obviously hence cannot render them amenable for any liability for any delay in theirs in terms of Ext.PW-1/A not promptly executing the relevant construction work.
Consequently, the apt sequel therefrom is of there being ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...10...
no culpable delay on the part of the defendants to within the time stipulated in agreement Ext.PW-1/A complete .
the relevant construction activity nor also any claim qua any pecuniary damages thereupon stand not amenable to be awarded to the plaintiff from the defendants. The of learned trial Court on appraising the evidence in display of defective workmanship of the defendants besides of rt the defendants using sub standard construction material at the relevant site of construction also of theirs using Iron bars holding specifications in deviation to the prescription qua its dimensions enumerated in Ext.PW-
1/A sequelly whereupon hairline cracks appeared in the structure, for rectification whereof the plaintiff as displayed in Ext.PW-4/A stood enjoined to spend Rs.30,000/- rendered a decree qua the aforesaid sum of money vis.a.vis the plaintiff, also decreed the other relevant claims cast in the apposite suit. Though the learned trial Court relied upon Ext.PW-4/A holding depictions of the indemnifiable amount payable by the defendants to the plaintiff constituted in a sum of Rs.1,26,669/- yet with the plaintiff restricting his suit in a ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...11...
sum of Rs.1 lac it proceeded to render a decree against the defendants in the sum aforesaid. However, the .
infringements by the defendants qua facets other than theirs using iron bars holding specifications in deviation to the prescriptions qua its dimensions enumerated in of Ext.PW-1/A sequelly whereupon hairline cracks appeared in the relevant structure, for rectification whereof the rt plaintiff as displayed in Ext.PW-4/A stood enjoined to spent Rs.30,000/- stand hereinafter concluded by this Court to not stand committed by the defendants leading it to further conclude of no damages being awardable thereunder to the plaintiff.
13. Be that as it may, the learned First Appellate Court also while aptly undoing the afore referred inherent flaws embedded in the rendition of the learned trial Court has also proceeded to rely upon Ext.PW-4/A in awarding a sum of Rs.30,000/- as damages to the plaintiff on the facet of the defendants using sub standard construction material besides on account of theirs using Iron Bars holding specifications in deviation to the relevant prescriptions qua it reflected in Ext.PW-1/A. Even though ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...12...
agreement Ext.PW-1/A specifies the dimensions of the Iron Bars to be used by the defendants in the relevant .
construction activity nonetheless when in deviation therefrom the defendants used in the relevant construction activity iron rods holding dimensions lesser of than the one prescribed therein stands propagated to sequel the emergence of defects in the house of the rt plaintiff, cause of defects whereof stand ascribed by the author of Ext.PW-4/A to user by the defendants of sub standard construction material also of theirs using the relevant construction material in digression qua its specification enumerated in Ext.PW-1/A, exhibit whereof stood relied upon by the learned First Appellate Court yet the apposite ascriptions therein by the author of Ext.PW-
4/A qua the user by the defendants of sub standard construction material also of user by them of the relevant construction item in infringement qua the contractual prescription qua its dimension, appears to hold no clout prominently when he in his deposition has acquiesced to the suggestion put to him during his standing subjected to cross-examination by the learned counsel for the ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...13...
defendants of his not holding any knowledge qua the depth whereupto the foundation of the building stood .
excavated. Also his acquiescing therein to the suggestion of the learned counsel for the defendants while holding him to cross-examination qua subsidence of the relevant of structure ensuing, on lentils standings cast on columns thereof wherefrom the possibility of occurrence of hairline rt cracks in the relevant building stands also acquiesced by him to be not overrulable does give leverage to an inference of the relevant hairline cracks which appeared in the relevant construction being attributable to subsidence of the building. The formation of the above inference dispels the efficacy of PW-4 pronouncing in Ext.PW-4/A, exhibit whereof stood relied upon by the learned First Appellate Court for it to hold qua the apposite infringements standing committed by the defendants in holding the relevant construction activity whereupon the occurrence of hairline cracks in the relevant construction stood sequelled. Fortification to the aforesaid inference is lent by his acquiescing in his cross-
examination of his not collecting the relevant samples ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...14...
from the relevant portion of the building for theirs being sent to the Laboratory concerned for the latter opining .
thereon qua the defendants using sub standard material in the relevant structure raised by them. The opinion by the Laboratory concerned on the relevant sample would of have brought forth best evidence qua the relevant tort of misfeasance ascribed to the defendants in Ext.PW-4/A rt begetting the eruption of hairline cracks in the relevant structure. Since its emergence stands smothered by PW-
4 not collecting the samples of the relevant construction whereas it constituted the best evidence in display of the relevant ascriptions in Ext.PW-4/A qua commission of tort of misfeasance by the defendants renders its non adduction to render the relevant ascriptions vis.a.vis the defendants in Ext.PW-4/A to hold no vigour. Even if the relevant ascription in Ext.PW-4/A stood reflected qua the defendants yet with PW-4 acquiescing in his cross-
examination of his not perusing the structural design prepared qua the relevant structure, structural design whereof is enjoined to be submitted alongwith the building plan to the authorities concerned for its approval ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...15...
whereas only on its holding reflections in tandem with the enumerations in Ext.PW-1/A qua the specification qua the .
user by the defendants of Iron Bars in the relevant construction would beget an inference of the engineer concerned who prepared the relevant structural design of of the relevant structure revering the apposite reflections in Ext.PW-1/A whereupon any deviation therefrom would rt assumingly dehors lack of adduction of the apposite best evidence aforesaid, foster a conclusion of the relevant occurrence of hairline cracks in the building spurring from the apposite breach committed by the defendants.
Contrarily when PW-4 deposes of his not sighting the relevant structural design it cannot be concluded of there occurring any deviation therefrom qua the dimensions of the Iron Bar to be used by the defendants in the relevant construction work besides hence it is to be concluded of the engineer concerned who prepared the relevant structural design not meteing reverence qua the apposite manifestations enumerated in Ext.PW-1/A qua the user by the defendants in the relevant building, of iron bars holding dimensions in consonance therewith rather it is to ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...16...
be held of the user by the defendants of the Iron Bars holding dimension of 8mm holding consonance with the .
structural design prepared qua the building by the engineer concerned also hence it cannot be concluded of the relevant hairline cracks which occurred in the building of standing begotten by the apposite breach ascribed to the defendants. Contrarily, it has to be reinforcingly rt concluded that lack of adduction of best evidence erodes the vigour of the plaintiffs' claims for award of damages qua occurrence of hairline cracks in the building arising from the defendants' committing tort of misfeasance in the manner constituted in Ext.PW-1/A.
14. Accordingly, I find no merit in appeal filed by plaintiff Ram Parkash bearing No. 17 of 2006 and the same is dismissed whereas the appeal bearing No. 628 of 2005 filed by the defendant Rajesh Kumar is allowed. In sequel the judgements and decrees rendered by both the Courts below are set-aside. The substantial questions of law in both the appeals stand answered in favour of the defendants. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All the pending ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP ...17...
applications also stand disposed of. Records be sent back forthwith.
.
2nd August, 2016. (Sureshwar Thakur) ™ Judge.
of rt ::: Downloaded on - 15/04/2017 20:56:43 :::HCHP