THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY
CCCA No.66 of 2002
JUDGMENT:
This Appeal Suit is filed by the appellant/plaintiff assailing the judgment and decree dated 17.08.2001 in OS No.417 of 1998 on the file of the learned XI Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad.
2. The plaintiff has filed the original suit in OS No.417 of 1998 for recovery of Rs.9,21,300/- against the person and property of the defendants with future interest at 12% per annum from the date of suit till the date of realization with costs. The trial Court after full length trial upon considering the oral and documentary evidence adduced on both sides dismissed the suit of the plaintiff holding that the defendants did not agree to reimburse the expenditure incurred by the plaintiff on completion of the balance work in the suit house and that the original agreement entered into between the parties was cancelled by execution of the sale deed and delivery of possession of suit schedule house Page 2 of 16 AVRJ CCCA No.66 of 2002 on 31.10.1996 under Ex.A.1 sale deed in favour of the plaintiff and accordingly the suit was dismissed.
3. Feeling aggrieved by the said judgment and decree dated 17.08.2001 in OS No.417 of 1998, the appellant/ plaintiff has filed this appeal suit on the following grounds praying to set aside the judgment and decree of the trial Court, consequently to decree the suit for an amount of Rs.12,80,607/- with costs:
i) that the trial Court has proceeded on assumptions and presumptions and dismissed the suit and passed the decree in favour of the defendants and against the plaintiff;
ii) that the trial Court has failed to consider the evidence available on record and also failed to look into the fact that the first defendant has handed over the possession of the suit schedule house in semi-finished condition;
iii) that the trial Court has not considered the evidence of PWs.1 & 2 wherein both the witnesses categorically stated that plastering, flooring, tiles, windows, doors, Page 3 of 16 AVRJ CCCA No.66 of 2002 grills etc., were not completed and the house was not fit for occupation; and
iv) that the trial Court has also failed to consider that the plaintiff has spent an amount of Rs.9,21,300/- to attend the left over work.
4. In spite of service of notice, none appeared on behalf of the respondents/defendants, remained absent and they were set ex parte. Heard the learned counsel for the appellant/ plaintiff. The submissions made by him have received due consideration of this Court. Perused the material available on record.
5. The learned counsel for the appellant/plaintiff seeks to submit that the plaintiff has entered into an agreement with the defendants for construction of a house in an open area of 220 square yards of plot No.2 in Survey No.106 situated at Road No.7, Banjara Hills, Hyderabad on 02.06.1994 and as per the agreement, the defendants have to complete the entire work only for an amount of Rs.15,60,000/-, and the plaintiff has agreed to pay the said amount in instalments @ Rs.70,000/- per month. Page 4 of 16
AVRJ CCCA No.66 of 2002 Accordingly, the plaintiff has paid in all an amount of Rs.14,20,000/- during the period from 14.07.1994 to 16.02.1996 and requested the defendants to complete the work by the end of October 1996. But the defendants have failed to execute the work as agreed to. Having frustrated with the attitude of defendants, the plaintiff obtained registered sale deed in respect of the suit schedule property on 31.10.1996. Thereafter, the plaintiff has spent about Rs.9 lakhs for fixtures, doors, bore-well, drainage connection, window glasses, electrical and sanitary works, flooring and kitchen finishing works, overhead tank etc. The plaintiff has also spent additional amount of Rs.50,000/- for completion of the balance work. Thus, the defendants are due to pay an amount of Rs.9,30,000/- after adjustment of Rs.4,90,000/- as mentioned in the registered sale deed Ex.A.1, out of the total amount of Rs.14,20,000/- received by the defendants from the plaintiff. On repeated demands made by the plaintiff, only an amount of Rs.1,00,000/- was paid in September, 1997 and failed to pay the balance amount of Rs.8,30,000/-. The plaintiff has got issued a legal notice dated 08.08.1998 Page 5 of 16 AVRJ CCCA No.66 of 2002 calling upon the defendants for payment of the said amount, hence, the plaintiff is entitled for recovery of the said amount of Rs.9,21,300/- together with costs.
6. The learned counsel for the appellant/plaintiff further contends that the trial Court has failed to appreciate the oral evidence of PWs.1 to 6 and contents of Exs.A.1 to A.31 and simply arrived at a conclusion that in view of the execution of original of Ex.A.1-sale deed by the defendants in favour of the plaintiff, earlier agreement, if any entered between the parties, stands cancelled, which is not correct. He has also relied on the principles laid by the Hon'ble Apex Court in Rangammal v. Kuppuswami and another1.
7. In the light of the submissions made by the learned counsel for the appellant/plaintiff, the following points arise for consideration:
i) whether the appellant is able to prove the terms of contract dated 02.06.1994; and
ii) whether the impugned judgment and decree dated 17.08.2021 is sustainable?
1 (2011) 12 SCC 220 Page 6 of 16 AVRJ CCCA No.66 of 2002 Point Nos.(i) and (ii):
8. Since both the point Nos.(i) & (ii) are interconnected, for the sake of brevity, they are answered together as under:
9. It may be stated that the plaintiff has filed the original suit for recovery of Rs.9,21,300/- with interest at 12% per annum. The defendants 1 & 2 have filed a detailed written statement alleging that as per the agreement dated 02.06.1994, they have agreed to construct the house as per the specifications at the costs of Rs.16,40,000/-. It is not correct to allege that the plaintiff has agreed to pay Rs.14,20,000/- and paid the said amount @ Rs.70,000/- per month till the end of October 1996. The plaintiff has in all paid Rs.14,20,000/- from 14.07.1994 to 07.02.1996 irregularly. The defendants have never expressed their inability to proceed with the construction work. In fact, the plaintiff has represented that his father wants to change the plan and intends to go for more construction, requested the defendants to cancel the contract at that stage. By that time 90% of the Page 7 of 16 AVRJ CCCA No.66 of 2002 construction was completed and the contract was cancelled at the request of the plaintiff only. It was represented by the plaintiff that the Government was going to enhance the registration charges and accordingly requested to execute the registered sale deed, thereby registered sale deed was executed on 31.10.1996. There was no agreement at that time for completion of the balance work by the defendants. It is false to allege that the plaintiff has spent Rs.9 lakhs for fixtures such as doors, bore-well and other items and in fact all these items were completed at the time of handing over the possession of suit house to the plaintiff by executing the sale deed. The defendants are not liable to pay any amount much less an amount of Rs.9,30,000/-. They have not paid Rs.1,00,000/- to the plaintiff in September 1997 agreeing to pay the remaining amount in future instalments.
10. Based on the above pleadings, the trial Court has framed the following issues:
1. Whether the agreement was cancelled by the plaintiff as pleaded by the defendants?Page 8 of 16
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2. Whether the plaintiff is entitled to recover the said amount from the defendants?
3. To what relief?
11. During the trial, on behalf of plaintiff, PWs.1 to 6 are examined and Ex.A.1 to A.31 documents are marked, whereas on behalf of the defendants, DW.1 is examined.
12. PW.1 is the plaintiff. He has supported the plaint averments. PW.2 is the father of the plaintiff and he is the power of attorney holder under Ex.A.31. He stated that he visited the suit schedule property in November 1996 by then the roof alone was laid, windows and doors were not fixed and there was no plastering. He attended all the remaining works and incurred expenditure and prepared a consolidated statement as Ex.A.16.
13. PW.3 is a mason, who attended the mason work of the suit house from October 1997 to February 1998. He stated that he received the payment from PW.2 for the work done by him. Similarly, PW.4 is the carpenter, who attended the carpentry work if the suit house from October, 1996 to February 1998. PW.5 is a plumber, who said to have attended the plumbing work from June 1997 Page 9 of 16 AVRJ CCCA No.66 of 2002 to March 1998. PW.6 is a welder, who attended the welding work in the suit house during May 1997 to February, 1998.
14. Be it stated that as per the evidence of PWs.4 to 6 they have received payments only from PW.2. As against the above evidence of plaintiff, the first defendant himself got examined as DW.1. Though he was cross-examined at length, nothing worth mentioning is elicited. His evidence remained consistent throughout the cross-examination. However, it is admitted by DW.1 that the construction work was supposed to be completed by the end of October 1996, 80% of the work was completed by November 1996 and only the windows and doors were not fixed and there was no plastering.
15. The plaintiff has not filed the original or copy of contract dated 02.06.1994 to ascertain the terms of agreement for construction of the house. Undisputedly, Ex.A.1-sale deed was executed by the defendants on 31.10.1996. A plain reading of Ex.A.1 shows that the defendants have sold the house to the plaintiff, nothing is Page 10 of 16 AVRJ CCCA No.66 of 2002 mentioned about the unfinished structure sold under Ex.A.1 or that the defendants have agreed to complete the remaining work. The plaintiff is withholding the best evidence of agreement of sale dated 02.06.1994 to ascertain the terms and the suit claim has to be decided only basing on the oral evidence. Thus, the oral evidence of PWs.1 & 2 is only available to ascertain the terms of agreement dated 02.06.1994. The first defendant is residing at Zeddah and in his evidence he stated that he is holding copy of said agreement but it is not carried by him and it is with him at Zeddah and nowhere it is mentioned in the agreement that only with an amount of Rs.14,20,000/- the entire work has to be completed.
16. It may be a fact that PWs.4 to 6 have received payment from PW.2 but that does mean that the entire semi-finished structure was handed over and that there was an agreement and the defendants violated the terms and conditions mentioned therein. It is pertinent to note that nothing is mentioned in Ex.A.1 at the time of registration of the building that the defendants have to meet the expenses for the remaining work. If really there Page 11 of 16 AVRJ CCCA No.66 of 2002 was an agreement and the defendants have failed to comply the terms of agreement, the plaintiff as a prudent man ought to have filed a report of concerned Engineers to the effect, what was the work completed and what was the work left over by the time of execution of Ex.A.1-sale deed or he ought to have mentioned in Ex.A.1 that a semi- finished structure is sold and the defendants have agreed to complete the structures with a stipulated time. Undisputedly, the plaintiff has not taken any such steps, simply obtained a registered sale deed, original of Ex.A.1 on 31.10.1996 and taken over the possession of the suit schedule property.
17. In such factual matrix, the trial Court has rightly appreciated the oral and documentary evidence available on record including the evidence of first defendant as DW.1 who stated that by the time of execution of Ex.A.1, almost 80% of the work was completed including flooring, plastering, sanitary pipeline, parapet wall, external plastering etc. It is the further evidence of DW.1 that the defendants have requested PW.2 for payment of instalments as per the schedule, but the plaintiff requested Page 12 of 16 AVRJ CCCA No.66 of 2002 to register the property and hand over the possession stating that they will proceed with further construction. It is only as per the request of the plaintiff, registered sale deed was executed under the original of Ex.A.1 and possession was delivered. It appears that subsequent to Ex.A.1-sale deed, the plaintiff has carried the remaining work.
18. Another important circumstance which goes against the plaintiff is that at the time of obtaining registered sale deed, the original of Ex.A.1, the plaintiff did not raise any objection or protest regarding the construction of the building. If really the defendants have failed to complete the construction as per the schedule, the plaintiff as a prudent man ought to have raised objections, at the time of execution of sale deed. Though the plaintiff has stated that in September 1997, an amount of Rs.1 lakh was paid by the plaintiff, except the oral evidence of PW.1, nothing is available on record as to the payment of Rs.1 lakh by the defendants to the plaintiff. Ex.A.16 is the book maintained for the entire expenditure for Exs.A.6 to A.16, whereas Exs.A.17 to A.30 are the receipts. These receipts under Page 13 of 16 AVRJ CCCA No.66 of 2002 Exs.A.17 to A.30 are not in dispute by the defendants and their case is that the plaintiff was irregular in payments. Thus, there is no evidence to show the nature of works undertaken by the plaintiff under Ex.A.16 only because the defendants failed to execute the work as agreed or what were the works agreed to be executed by the defendants as per terms of agreement dated 02.06.1994 and that there is deficiency in the services and as such said works were not completed by the time of execution of sale deed under Ex.A.1.
19. In Rangammal's case (supra) relied by the learned counsel for the appellant/plaintiff, the Hon'ble Apex Court while dealing with the Section 101 of Evidence Act held that the burden of proving the fact that always lies upon the person who asserts the fact and until such burden is discharged, the other party is not required to be called upon to prove his case. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge the burden and until he arrives that conclusion, he cannot proceed on the basis of weakness of the other party.
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20. In this case, the plaintiff has come up with a specific plea that as on the date of registration of the suit schedule property under the original of Ex.A.1, the defendants failed to complete the structures as per the terms of contract dated 02.06.1994 and that the plaintiff had to incur huge amounts as mentioned in Ex.A.16, but the original or copy of contract dated 02.06.1994 is not filed by the plaintiff. Whereas, the defendants denied the suit claim and the first defendant as DW.1 has categorically asserted that they have completed more than 80% of the work and it is only at the request of the plaintiff they have executed Ex.A.1- registered sale deed. The plaintiffs have requested for execution of sale deed stating that they will get the remaining work completed with their own funds. Thus, to believe the version of the plaintiff, it is for the plaintiff to file the original agreement dated 02.06.1994 to ascertain the terms of contract. Further, there is no such report of Engineer or any other expert to indicate that as on the date of Ex.A.1-sale deed, major portion of the work was not completed. On the other hand, nothing is indicated in Ex.A.1 that a semi-finished structure was registered and Page 15 of 16 AVRJ CCCA No.66 of 2002 that the defendants have agreed to carry out the remaining work subsequent to Ex.A.1.
21. Therefore, when the facts of the present case are tested on the touchstone of the principles laid in the above decision with reference to Sections 101 and 102 of Evidence Act, the answer is in the negative. The burden lies on the plaintiff to prove the terms of contract dated 02.06.1994 and also to prove that in spite of execution of Ex.A.1 sale deed, the terms of agreement dated 02.06.1994 are still in force, but the plaintiff failed to discharge the same. The plaintiff is not entitled to depend on the weakness or otherwise of the defendants case. The plaintiff has to stand or fall on his own legs. In such circumstances, as the plaintiff failed to prove the terms of contract dated 02.06.1994 with regard to the execution of left over work by the defendants, the entries made in Ex.A.16 as to payment of amount to PWs.4 to 6 is not helpful to the plaintiff for recovery of said amount from the defendants, more particularly in view of the execution of registered sale deed Ex.A.1 and taking over the possession of the suit schedule property on 31.10.1996 unconditionally. Page 16 of 16
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22. In that view of the matter, I do not find any irregularities or infirmities in appreciation of evidence by the trial Court. The leaned judge of the trial Court having carefully appreciated the oral and documentary evidence available on record, has negatived the claim of the plaintiff dismissing the suit with costs and the findings recorded by the trial Court does not warrant any interference by this Court.
23. In the result, the appeal suit is dismissed with costs confirming the judgment and decree dated 17.08.2001 in OS No.417 of 1998 on the file of the learned XI Additional Chief Judge, City Civil Court (Fast Track Court) at Hyderabad.
As a sequel, interlocutory applications, if any pending in this appeal, shall stand closed.
__________________________________ A. VENKATESHWARA REDDY, J.
Date: 22.09.2022 Isn