Kerala High Court
Smt.Laiza Martin vs Silpi Constructions on 25 June, 2014
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 25TH DAY OF JUNE 2014/4TH ASHADHA, 1936
RSA.No. 132 of 2006
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A.S.NO. 141/2003 OF THE PRINCIPAL SUB COURT, IRINJALAKUDA
O.S.NO. 1591/1998 OF THE PRINCIPAL MUNSIFF'S COURT, IRINJALAKUDA
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APPELLANT / APPELLANT / DEFENDANT :
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SMT.LAIZA MARTIN,
W/O.MARTIN, PANJIKKARAN HOUSE, AZHAKOM,
NJALUKKARA DESOM, KARUKUTTY VILLAGE, ALUVA TALUK.
BY ADV. SRI.T.N.MANOJ
RESPONDENT / RESPONDENT / PLAINTIFF :
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SILPI CONSTRUCTIONS,
REPRESENTED BY THE PROPRIETOR N.V.DAVIS,
S/O.NAYATHODAN VAREED, ELINJIPPRA VILLAGE,
PARIYARAM (VIA), MUKUNDAPURAM TALUK, THRISSUR DISTRICT.
BY ADVS. SRI.SHOBY K.FRANCIS
SRI.SEBY JOSEPH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 25-06-2014, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Msd.
P. BHAVADASAN, J.
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R.S.A. No. 132 of 2006
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Dated this the 25th day of June, 2014.
JUDGMENT
Having suffered concurrent findings against her and slapped with a decree for money, the defendant in O.S. 1591 of 1998 before the Principal Munsiff's Court, Irinjalakuda has come up in appeal.
2. The facts fall within a narrow compass. It is not in dispute that by virtue of Ext.B1 agreement, the plaintiff undertook to put up a building for the defendant at a total cost of Rs.3,30,000/- with a plinth area of 1300 sq.feet. According to the plaintiff, while the construction was going on, the defendant was in a hurry to step in and before the house could be completed, she occupied the same. He would say that he had completed about 90% of the work and as per the schedule of payment contained in Ext.B1, amounts were due to him. He quantified the amount due to him as RSA.132/2006.
2Rs.84,500/- and laid the suit claiming the said amount from the defendant.
3. The defendant resisted the suit by pointing out that the claim made is unjust and unfounded. It is pointed out that the construction was below the required standards and she had to incur further amount for the construction of the building. It was pointed out that she had paid Rs.2,89,000/- to plaintiff and since the work was not completed, no further amount was due to the plaintiff. Apart from resisting the claim, she had also laid a counter claim with respect to the amount spent by her subsequently.
4. On the basis of the above pleadings, issues were raised by the trial court. The evidence consists of the testimony of P.W.1 and documents marked as Exts.A1 to A5 from the side of the plaintiff. The defendant examined D.W.1 and had Exts. B1 to B5 marked. Exts.C1, C2 and C2(a) are the commission report, plan and rough plan. Both the courts RSA.132/2006.
3below found that on evidence, only Rs.2,12,500/- was paid for above 85% of the work completed by the plaintiff and a further sum of Rs.68,000/- was due to her. The courts below accepted the plea put forward by the plaintiff that the endorsement of pay ment in April, 1998 of Rs.8,500/-as could be discerned from Ext.B1 has been tampered by the defendant altering the amount to Rsw.85,000/- thereby manipulating the records. The courts below found that on the evidence, it is probable that the version of the plaintiff that only Rs. 8,500/- alone was paid, hence the suit was decreed and it was confirmed in appeal.
5. In the second appeal, the following questions of law were seen formulated:
"(1) Whether the courts below erred in accepting Ext.A5 as primary evidence though that being a photostat copy which is not counter part of Ext.B1 original agreement and the endorsements and RSA.132/2006.4
signatures in Ext.A5 differ also from those in Ext.B1?
(2) Whether the courts below erred in not accepting the endorsement in Ext.B1 regarding payment of Rs.85,000/- as genuine?
(3) Whether the courts below erred in not accepting Exts.B3 and B4 and not placing reliance thereon?"
6. Learned counsel appearing for the appellant pointed out that both the courts below have not adverted to the pleadings available in the case and have gone purely on the basis of the entries in Ext.B1. Referring to the plaint, it was contended that in the plaint as well as in the notice issued by the plaintiff, the definite case was that on the day of drawing up of Ext.B1 agreement, a copy was given to the plaintiff. It is not in dispute that payments made to the plaintiff were endorsed on the reverse side of the agreement namely Ext.B1 by plaintiff himself. Learned counsel went on to RSA.132/2006.
5point out that at the time of evidence an entirely new case was put up to the effect that he received a copy of the agreement only between 20.2.1998 and 6.3.1998 that is just before the disputed payment was made. No reason as such is stated in the plaint or spoken to by the plaintiff as to why he waited so long to get copy of the agreement for construction. It is highly improbable according to the learned counsel.
7. Learned counsel for the appellant then contended that Ext.A5 could not have been looked into at all as it does not qualify even as a secondary evidence. Admittedly it is a copy kept by the defendant and if it was a true copy of the original, then there would have been some justification in admitting the said document. For the above proposition, learned counsel relied on the decisions reported in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple ((2003) 8 SCC 752) and in J. Naval Kishore v. D. Swarna Bhadran ((2007) 5 MLJ 1417). Learned counsel for the RSA.132/2006.
6appellant drew the attention of this Court to the judgment of the trial court wherein the trial court found that the document is inadmissible, but strangely goes onto say that it can be looked into to ascertain whether there is manipulation. A document which is totally inadmissible in evidence could not have been looked into for any purpose. Learned counsel went on to point out that it is rather strange to note that no accounts whatsoever were produced by the plaintiff in support of his claim. In short, the case is that the finding arrived at by the courts below by looking at Exts.A5 and B1 has no sanction of law. The other circumstance relied on also do not support the case of the plaintiff. The courts below found fault with the defendant for not producing documents to show that she had sold her car and raised amount to pay Rs.85,000/- for payment as shown in Ext.B1. The lower courts were also greatly impressed by the fact that except that amount all other amounts were paid by cheques. However, merely RSA.132/2006.
7because these facts, to come to the conclusion that Ext.B1 was manipulated and fabricated by the defendant was quite unjustified in the light of the pleadings in the case. The finding, according to the learned counsel cannot stand.
8. Learned counsel appearing for the respondent on the other hand cautioned this Court that this Court is exercising jurisdiction under Section 100 of the Code of Civil Procedure and unless there is a substantial question of law involved, this Court may not be justified in interfering with the finding of the court below. Both the courts below on appreciation of the evidence in the case had come to the conclusion that Ext.B1 has been manipulated by the defendant and infact only a sum of Rs.8,500/- had been paid in April, 1998 which was altered to Rs.85,000/- by the defendant. Apart from the manifest tampering of the entry, learned counsel went on to point out that there are other circumstances relied on by the courts below which also have RSA.132/2006.
8considerable significance and a say in the matter and it is not as if the courts below proceeded to decree the suit solely based on the comparison of entries in Exts.B1 and A5. Learned counsel went on to point out that there are no grounds to interfere with the finding of the court below and the appeal is only to be dismissed.
9. From the above rival contentions, it is clear that the core and the sole issue involved is regarding the entry with respect to the payment of Rs.8,500/- which according to the plaintiff was the amount paid in April, 1998. According to the defendant, it is not Rs.8,500/-, but it is Rs.85,000/-.
10. In the plaint it is claimed that on the date of execution of Ext.B1 agreement, photostat copy was given to the plaintiff. It is also claimed in the plaint that for every payment received by the plaintiff, receipts have been given to the defendant.
RSA.132/2006.
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11. It is not in dispute that the construction was not completed and the defendant occupied the building prior to its completion. In this appeal, this Court may not be much concerned about the expenditure incurred by the defendant in completing the construction of the building. The issue is confined to the question as to whether the finding of the court below that the figure which according to the plaintiff was only Rs.8,500/- has been altered to one as Rs.85,000/-.
12. At the time of evidence, the plaintiff came forward with a case that it was not at the time of execution of Ext.B1 agreement that the copy was given, but on a day between 20.2.1998 and 6.3.1998 that the copy was given. This was a totally different case which the plaintiff never had till then. The plaintiff would say that he came to know about the tampering only when he happened to see Ext.B1 at the time of mediation and then he realized that he was defrauded. RSA.132/2006.
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13. One cannot omit to note that both in the lawyer notice and in the plaint, the clear assertion was that the copy of the agreement was given on the date of the agreement itself. Even assuming that it was a mistake, one would have expected P.W.1 to say so at the time of evidence. The result is that as regards the receipt of the photostat copy of the agreement, there is inconsistent version between the plaint and the evidence of P.W.1.
14. The above aspect assumes significance in the light of the fact that there is a strong dispute regarding the amount paid in April, 1998 whether it is Rs.8,500/- or Rs.85,000/-.
15. It is difficult to believe the case of the plaintiff that on a day between 20.2.1998 and 6.3.1998 he procured a photostat copy of the agreement. This court repeatedly asked the learned counsel for the plaintiff as to what had prompted him to seek copy of the agreement at that point of time. RSA.132/2006.
11There was no definite answer. It so happened that he procured it only on a day between 20.2.1998 and 6.3.1998 even though he demanded copy on several occasions.
16. The trial court has found that Ext.A5 is inadmissible in evidence. That is quite so in the light of the two decisions cited by the learned counsel for the appellant which deals with the same issue. It is not necessary to extract the decisions in detail. However, the trial court goes on to observe that even though Ext.A5 is inadmissible in evidence, it can be looked into for the purpose of ascertaining whether there is any manipulation and goes on to compare the documents.
17. The exercise undertaken by the court below is beyond comprehension. It is not a case where the document was being used for a collateral purpose at all. After having found that the document is totally inadmissible in evidence, the courts below should not have attempted to compare the entries therein with Ext.B1.
RSA.132/2006.
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18. The other circumstance which is relied on by the courts below is that except for the disputed payment, all other payments were made by cheque and the disputed payment alone was by way of cash. The plaintiff had a case that at that time the defendant did not have the financial capacity to pay Rs.85,000/- to him. The defendant's contention was that she had sold her car and had money with her. It is true that she had not produced any document to show that she had sold her car at that point of time. But one must remember that when the defendant says that she has paid the amount and the plaintiff admits payment, but contends that it is only a lesser amount, it is for the plaintiff to establish the said fact.
19. A mere perusal of Exts.A5 and B1 will convince anybody that they cannot go together. All entries prior to including 20.2.1998 contains the signature of the plaintiff. Subsequent entries in Ext. A1 do not contain signature of the RSA.132/2006.
13plaintiff. The plaintiff has a case that the entries subsequent to 6.3.1998 were also made by him and therefore he did not feel it necessary to put his signature.
20. The above fact spoken to by P.W.1, as already noticed is a case which is not pleaded in the plaint. Even assuming that the plaintiff came to know about the manipulation at a later point of time and he realized the mistake committed by him, one would have expected him to amend the pleadings which as it stands now do not go with the evidence adduced and vice versa.
21. The plaintiff had a definite case that for each of the payments received by him, he had issued receipts to the defendant. When this suggestion was made to the defendant, she categorically denied the same. But there were no attempts from the side of the plaintiff to show that receipts were infact issued by him.
RSA.132/2006.
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22. Even more strange is the fact that no accounts whatsoever were produced by the plaintiff regarding the transaction. According to the plaintiff, this was his first endeavor and therefore no accounts were maintained.
23. It is difficult to accept the above proposition. Having engaged in construction, several aspects will have to be looked into and it is very difficult to believe that he would not have kept account of the money received and spent by him. The plaintiff asserts in the plaint and in the evidence that he advanced money for the construction. No documents showing the receipt of money by him or the accounts in respect of the construction undertaken by him are produced by him.
24. The attempt of the plaintiff was to show that only Rs.8,500/- had been paid in April, 1998, and the defendant had manipulated the entry to show that Rs.85,000/- was paid. That remains unsubstantiated. In the RSA.132/2006.
15light of the pleadings in the case which have not been suitably amended as already noticed, the evidence being not in tune with the pleadings and vice versa the plaintiff's case became very weak.
25. It is also surprising to note that inspite of the assertion in the plaint that receipts were taken for the payment received by him, there is no whisper about the same in chief-examination of P.W.1. Of course, there is a suggestion to D.W.1 to that effect. But that would not suffice. At least the plaintiff could have produced his bank accounts to show his bonafides. It is difficult to believe that he neither maintained accounts for the construction nor did he have a bank account. He also says that he issued receipts on white paper sheet. The stand so taken is difficult to understand.
26. Both the courts below were greatly impressed by the fact that the defendant has not produced any document to show that she has sold the car and had gathered the RSA.132/2006.
16sufficient sum to pay Rs.85,000/- to the plaintiff. They were also of the opinion that if Rs.85,000/- was paid at that point of time when the construction was not completed and she had occupied before completion, she was entitled to pay the balance due to the plaintiff. There is no basis for the above assumption. The burden is on the plaintiff to establish his right and that cannot be thrown on the defendant. One cannot assume that accounts would not have been maintained by the plaintiff regarding the transaction. At least some documents to show the amounts received and the amount spent must have been maintained by the plaintiff. This aspect has been lost sight of by the courts below and so also the pleadings in the case.
27. Prima facie it may appear that the defendant might have committed the mischief. But that has to be appreciated in the light of the pleadings and the evidence in the case. The defendant has a consistent case that the RSA.132/2006.
17building was not completed and she had to occupy it before that. The plaintiff would say that he had to advance money for the construction. If that be so, atleast something to show that aspect could have been produced by the plaintiff and even that was not done.
28. Next is the scope of Section 100 of the Code of Civil Procedure. It is true that normally this Court exercising its jurisdiction under Section 100 C.P.C. would be extremely reluctant or may even refuse to upset the finding on fact. But this aspect has been considered by the Apex Court in a recent decision wherein it was held that when it is shown that there is misappreciation of evidence, and that the findings are perverse and contrary to the evidence on record, the High Court exercising its jurisdiction under Section 100 of C.P.C. may well interfere and infact went on to hold that the High Court should exercise its jurisdiction under Section 100 of C.P.C. to set right the wrong done.
RSA.132/2006.
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29. In the light of the above decision, it cannot be contended now that findings of fact cannot be interfered with. There is no consistent case for the plaintiff at all. The pleadings goes one way and the evidence the other way. This vital aspect has been overlooked and that goes to the root of the matter.
For the above reasons, this appeal is allowed, the judgments and decrees of the courts below are set aside and the suit shall stand dismissed. There will be no order as to costs. The amount deposited as security shall be allowed to be withdrawn by the appellant.
P. BHAVADASAN, JUDGE sb.