Madras High Court
P.Ravi vs R.Ponnusamy on 31 January, 2022
S.A.No.132 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 31.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE M.GOVINDARAJ
S.A.No.132 of 2018
P.Ravi ... Appellant
Vs.
R.Ponnusamy ... Respondent
PRAYER: The Second Appeal has been filed under Section 100 of the Civil
Procedure Code to set aside the decree and judgment in A.S.No.15 of 2017
passed by the III Additional District Judge, Salem dated 23.10.2017 reversing
the judgment and decree in O.S.No.38 of 2012 dated 14.09.2016 on the file of I
Additional Judge, Salem.
For Appellant : Ms.Revathy for
Mr.R.Nalliyappan
For Respondent : Mr.P.Jegadeesan
JUDGMENT
Aggrieved over the reversal of the decree by the First Appellate Court,
the plaintiff has preferred the above Second Appeal.
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S.A.No.132 of 2018
2. According to the plaintiff trusting the words of the defendant, he
done some repairing works on behalf of the defendant in the defendant's
building. At the request of the defendant he has informed him that a sum of
Rs.2,60,000/- could be required for such work and for extra works further
expenses would be incurred. He completed the works and demanded the money.
But the defendant paid of Rs.5,000/- on 31.12.2008 and assured to pay the
balance amount as soon as his son-in-law returns from abroad. But when he
approached the defendant during February 2009, he behaved rudely and refused
to pay the money. Inspite of exchange of messages, he did not pay the money
and asked the plaintiff to come to the shop of one Mr.Rasik Patel, where it was
informed that Rs.95,500/- has to be paid to the plaintiff towards arrears of
labour charges excluding the sum of Rs.30,000/- being material costs. The
defendant has failed to keep his words in settling the amount. Plaintiff made a
Police complaint in the first week of June 2010. At his request Mr.D.S.Panneer
Selvam, President of Civil Engineer's Association, Salem was entrusted with an
evaluation work and he submitted a report. The defendant after receiving the
report took time under the pretext of his son's marriage. Even thereafter he did
not kept up his promise and paid the money. Plaintiff issued a letter dated
01.11.2011 followed by a reminder dated 08.11.2011 and legal notice dated
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S.A.No.132 of 2018
26.11.2011. The defendant has replied the legal notice on 01.12.2011, denying
the claim. Hence, he filed a suit for recovery of sum of Rs.2,37,979/-. In the
written statement, the defendant denied the averments made in the plaint and
contended that there is no cause of action for filing the suit that the plaintiff has
not incurred any expenses. Therefore, the suit is liable to be dismissed. Trial
Court framed appropriate issues and decreed the suit. Aggrieved over the same,
the defendant preferred an appeal in the Appellate Court and reversed the
finding that the plaintiff is not entitled to any claim.
3. Heard the submission of both sides.
4. The Second Appeal was argued on the basis of the substantial
questions of law raised in the memorandum of Second Appeal. On perusal of
the material, it is noted that the plaintiff made his claim based on a oral
agreement between the parties. According to him he incurred expenses for
purchasing materials and payment toiwards labour charges. Before the Trial
Court he has not produced any material to show that he had incurred so much
of expenses under specific heads. On the other hand, he would rely on the
compliant given by him and letter and reply exchanged between the parties. The
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S.A.No.132 of 2018
Trial Court had rested its finding on the basis of Ex.A2 a report given by the
Civil Engineer appointed by the Police on the basis of complaint made by the
plaintiff. But the evidence before the Trial Court does not disclose any genuinity
of the claim. It is also an admitted fact that the report was given to the plaintiff
and no copy was served on to the defendant by the Engineer who evaluated the
work. Trial Court has also based its finding on the basis of Ex.A5 the letter
written by the defendant to the plaintiff, wherein the defendant had admitted the
liability. But on perusal of Ex.A2 and A5, it is found that no admission of
liability. It is well settled that, when a claim is made by the party, it is his
bounden duty to make specific claim based on material evidence. But in the
instant case, admittedly the plaintiff did not produce any materials for the
expenses made towards construction. It is pertinent to note that a sum of
Rs.5,000/- was made as last payment. But in the evidence, plaintiff as P.W.1
would admit that after mediation, received a sum of Rs.5,000/- paid by the
defendant. Once the matter was settled finally on mediation by elders, plaintiff
shall have no cause of action to make further claim. He has not produced any
materials to show that he is entitled to the money as claimed by him. The
evaluation report Ex.A2 relied on by the plaintiff was issued by one Engineer
called D.S.Panner Selvam, but he was not examined before the Court. The First
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S.A.No.132 of 2018
Appellate Court has rightly found that without any proof of the expenditure
made by the plaintiff and the admission of liability by the defendant, the claim
made by the plaintiff cannot be accepted. I do not find any substantial question
of law arising out of the acutal matrix of the plaintiff. Therefore, the Second
Appeal merits no consideration. Accordingly, the Second Appeal stands
dismissed. There shall be no order as to costs.
31.01.2022.
Internet:Yes
Index:Yes/No
To
1.The I Additional District Judge, Salem
2.The III Additional Judge, Salem.
M. GOVINDARAJ,
J.
kpr
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S.A.No.132 of 2018
S.A.No.132 of 2018
19.01.2022
https://www.mhc.tn.gov.in/judis
