Sangaraj Sarnad Goudar S/O ... vs Niranjan S/O Kamalakar Rao
2023 Latest Caselaw 1025 Kant

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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

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.

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.

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.

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

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

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:

ILR 2008 KAR 1840

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

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

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.

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

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.

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

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

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.

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,

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