Karnataka High Court
Ningappa S/O Mallappa Biradar vs Rajendra S/Onarasingrao Desai Since ... on 3 June, 2025
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RSA No. 7345 of 2013
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 3RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
RSA NO. 7345 OF 2013 (MON)
BETWEEN:
NINGAPPA
S/O MALLAPPA BIRADAR
AGED ABOUT 48 YEARS,
OCC: CIVIL ENGINEER & CONTRACTOR
R/O NEAR AMBHABHAVANI TEMPLE,
OPP. BLDE HOSPITAL GATE, BIJAPUR.
...APPELLANT
(BY SRI.SANJEEV KUMAR C.PATIL, ADVOCATE)
AND:
RAJENDRA
S/O NARASINGRAO DESAI
SINCE DEAD BY HIS LRS
1. JAYALAXMI
W/O RAJENDRA DESAI,
AGED ABOUT 59 YEARS, OCC: RETIRED
R/O SHAHU NAGAR, BIJAPUR-586101.
2. VENUGOPAL
S/O RAJENDRA DESAI
AGED ABOUT 31 YEARS, OCC: STUDENT,
R/O SHAHU NAGAR, BIJAPUR-586101.
...RESPONDENTS
(R2 SERVED; V/O DATED: 02.02.2023 R2 IS TREATED AS LRs
OF DECEASED R1)
THIS RSA IS FILED U/S. 100 OF THE CPC, AGAINST THE
JUDGMENT AND DECREE DATED 15.06.2013 PASSED IN R.A.
NO. 116/2009 ON THE FILE OF THE PRL. DISTRICT JUDGE AT
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RSA No. 7345 of 2013
BIJAPUR, REVERSING THE JUDGMENT AND DECREE DATED
18.07.2009 PASSED IN O.S. NO. 132/2005 ON THE FILE OF
THE II ADDL. CIVIL JUDGE (SR.DN.)BIJAPUR AT BIJAPUR AND
DISMISS THE SUIT OF THE PLAINTIFF BY ALLOWING THIS
APPEAL.
THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 17.02.2025 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV JUDGMENT
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this Regular Second Appeal defendant in
O.S.No.132/2005, has challenged the judgment and
decree passed by the First Appellate Court in
R.A.No.116/2009, decreeing the entire suit filed by the
plaintiff, by modifying the judgment and decree passed by
the trial Court in O.S.No.132/2005.
2. For the sake of convenience, parties are
referred to by their ranks before the trial Court in
O.S.No.132/2005.
3. Plaintiff filed O.S.No.132/2005 for recovery of a
sum of `1,12,051/- contending that he entered into an
agreement with the defendant for construction of
residential house after demolishing the old dilapidated
building. In this regard, he paid a sum of `1,12,051/-
towards part payment. The defendant was supposed to
demolish the old building and construct a new building in a
total sum of `6,00,000/-. However, defendant failed to
carry out any work. On the other hand, a quarrel took
place between plaintiff and defendant and the agreement
came to an end. However, defendant failed to return the
amount paid to him and therefore he is forced to file the
suit for recovery of the said amount.
4. Defendant has filed written statement admitting
that he and plaintiff entered into an agreement for
construction of a new house after demolishing old
dilapidated building. He has also admitted that of having
received a sum of `2,051/- and `10,000/- by way of
advance. He has disputed of having received `1,00,000/-.
Defendant has claimed that in fact, he demolished the old
dilapidated building by incurring expenses of `25,000/-.
Defendant has also contended that he purchased electrical
material worth `10,800/-, plumbing material worth
`17,900/- and wall tiles worth `18,900/- i.e, in all he
purchased material for total sum of `47,600/- and plaintiff
has not paid the said sum and also the expenses incurred
by him for demolition of the old building. In view of the
matter, plaintiff is due in a sum of `72,600/-.
5. With these pleadings, defendant also filed
O.S.No.391/2005 for recovery of a sum of `72,600/-
against plaintiff as defendant No.1 and his wife as
defendant No.2.
6. Of course plaintiff filed written statement in
O.S.No.391/2005 reiterating the plaint averments of his
suit.
7. Based on the pleadings trial Court framed
necessary issues.
8. Evidence is led in O.S.No.132/2005, wherein
PWs-1 to 3 including the plaintiff are examined and Exs.P1
to 8 are marked on behalf of plaintiff.
9. On behalf of defendant, including the defendant
DWs-1 and 2 are examined and Exs.D1 to 5 are marked.
10. The trial Court partly decreed the suit in
O.S.No.132/2005 for recovery of a sum of `12,051/- with
interest at 6% per annum.
11. However, the trial Court dismissed the suit in
O.S.No.391/2005 filed by the defendant.
12. Aggrieved by the same, both plaintiff and
defendant respectively filed R.A.No.116/2009 and
R.A.No.137/2009.
13. The First Appellate Court allowed
R.A.No.116/2009 and decreed the suit in entirety for
recovery of `1,12,051/- with interest at 6% per annum
from the defendant.
14. The First Appellate Court partly allowed
R.A.No.137/2005 and ordered for recovery of `25,000/-
with interest at 6% from the plaintiff.
15. Plaintiff has not challenged the judgment and
decree the First Appellate Court.
16. However, defendant has approached this Court
challenging the judgment and decree passed by the First
Appellate Court granting decree for recovery of a sum of
`1,12,051/- with interest at 6% per annum from him,
contending that the First Appellate Court erred in holding
that plaintiff has paid `1,00,000/- through cheque issued
by his wife. The evidence of PW-2 indicate that he was not
present when the cheque was realised. The diary
maintained by the plaintiff only carries two signatures of
defendant, whereas plaintiff claims to have paid money to
the defendant thrice. `1,00,000/- was never paid to the
defendant and it is an insertion made before the signature
of defendant. No receipts are produced to prove the said
payments. The cheque is also not produced through which
the defendant was allegedly paid `1,00,000/- by the
plaintiff. The handwriting expert has not examined the
signature in Ex.P8 cheque. The judgment and decree of
the First Appellate Court is not sustainable and hence the
appeal.
17. Vide order dated 15.03.2023, the appeal is
admitted on the following substantial question of law:
"1. Whether the first appellate Court is justified in
reversing the finding of the Trial Court without
proper appreciation of the evidence on record?"
18. Heard elaborate arguments of both sides and
perused the record.
19. It is not in dispute that plaintiff is the owner of
property No.CTS 194/2B of Ward No.IV of Bijapur City,
consisting of a old dilapidated building. Defendant is an
Engineer and Civil Contractor. It is also not in dispute that
as per Ex.P3 plaintiff and defendant entered into an
agreement for construction of a new house after
demolition of the old dilapidated building in a total sum of
`6,00,000/-. Defendant admit of having received
`12,051/- and `10,000/- and acknowledge the same in the
small notebook maintained by the plaintiff. However, he
has disputed that a sum of `1,00,000/- was also paid to
him and he has acknowledged receipt of the same in the
said notebook. He has alleged that in respect of the
acknowledgement given by him for receipt of `10,000/-, a
line is inserted for payment of `1,00,000/-. On the other
hand, plaintiff has claimed that `1,00,000/- paid to the
defendant is through self cheque of the wife of plaintiff
and the endorsement on the cheque revealed that
defendant has received the cash from the bank. Plaintiff
has disputed that defendant has demolished the building
and on the other hand, alleged that at the initial stage
itself difference of opinion crept in between the parties and
as such, they got the entire work done through some
other contractor, including the demolition.
20. The trial Court disbelieved the case of the
plaintiff with regard to payment of `1,00,000/- and partly
decreed the suit for recovery of `12,051/-. However, the
suit of the defendant came to be dismissed in entirety.
21. Before the First Appellate Court, a handwriting
expert was appointed to examine the disputed signature of
defendant in Ex.P8, which is the self cheque of the wife of
plaintiff. The report state that the disputed signature of
the said cheque is that of defendant. PW-2 is Ashok
Yadavannavar, Junior officer of Siddeshwara Co-operative
Bank, Vijayapur. His evidence establish the fact that the
self cheque of the wife of plaintiff was presented by the
defendant and he has received the proceeds of the said
cheque. The defendant has tried to attack the testimony of
PW-2 by contending that the summons was issued to the
Manager and PW-2 has no authority to speak. It is true
that the summons was issued to the Manager of the
Siddeshwar Co-operative Bank to give evidence regarding
the cheque in question. Since the evidence on the said
aspect is based on records, as the Manager would be busy
with the bank work, he has authorised PW-2 to give
evidence. Even the testimony of the Manager would have
been the same, had he personally come and given
evidence.
22. It appears since plaintiff did not have account or
sufficient amount in his account, he has chosen to issue
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the cheque of his wife. Since it is a bearer cheque, the
person who present the same is required to sign on the
back of the cheque. Accordingly, the signature of
defendant is forthcoming on the back of the cheque. On
the back of the cheque, defendant has not affixed his full
signature, but affixed his chota signature by writing the
first three alphabets of his signature. On comparison with
the admitted and sample signatures, the handwriting
expert has clearly opined that it is the signature of
defendant. Thus in all, the defendant has received a total
sum of `1,12,051/-.
23. So far as the contention of plaintiff that
defendant has not at all carried out any work and
therefore is liable to refund the entire sum of `1,12,051/-
is concerned, the First Appellate Court has rightly held
that after the demolition of the old dilapidated building,
plaintiff and his family members have performed Bhoomi
Pooja. The plaintiff has not led any evidence to establish
as to who has demolished the old building and removed
the debris. In the light of the matter, the First Appellate
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Court has rightly held that it is the defendant who
demolished the old building and removed the debris. After
this stage difference of opinion arose between the parties,
plaintiff stopped the defendant from carrying out further
work. Taking into consideration the evidence led by the
defendant that he spent `25,000/- for demolition of the
old building and for removing the debris, the First
Appellate Court has rightly held that plaintiff is liable to
pay the said amount together with interest at 6% per
annum.
24. So far as the contention of defendant that he
purchased material for a total sum of `47,600/- and given
to the plaintiff is concerned, on the analysis of the
evidence led by the defendant, the First Appellate Court
has rightly held that the said fact is not proved. When the
difference of opinion arose between the parties at the
stage of demolition of the old building and removal of
debris, at no stretch of imagination, it could be accepted
that defendant would purchase electrical material,
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plumbing material and wall tiles which should be used at
the end stage of the construction.
25. The agreement between the parties was to the
effect that plaintiff would pay the money and defendant
would get the material and put up construction. In the
light of the contract entered into between the parties,
there was no occasion for the plaintiff to purchase these
material from the defendant and keep it ready for
construction. Therefore, the First Appellate Court rightly
rejected the claim of the defendant for sum of `47,600/-.
The trial Court without proper appreciation of oral and
documentary evidence placed on record had partly
dismissed the suit of the plaintiff for a sum of `1,00,000/-
and partly decreed it for a sum of `12,051/-.
26. Instead of filing separate suit, defendant could
have claimed counter claim. However, the trial Court
dismissed the entire suit filed by the defendant. On
reappreciation of the evidence, the First Appellate Court
rightly held that defendant has proved that for demolition
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of the existing building and removal of debris, he had
spent `25,000/- and ordered to be paid by the plaintiff.
Since defendant has failed to establish that, he had
purchased material worth `47,600/- and handed over to
the plaintiff, his claim for the said amount is rejected by
the First Appellate Court. The findings given by the First
Appellate Court is consistent with the evidence placed on
record and accordingly, the substantial question of law is
answered.
27. In the result, the appeal fails and accordingly,
the following:
ORDER
(i) Appeal filed by the appellant/defendant
under Section 100 of C.P.C is hereby
dismissed.
(ii) The impugned judgment and decree
15.06.2013 in RA.No.116 and 137/2009 on
the file of Prl.District Judge, Bijapur is
confirmed.
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(iii) The Registry is directed to send back the
trial Court as well as First Appellate Court
records along with copy of this judgment
forthwith.
Sd/-
(J.M.KHAZI)
JUDGE
RR
