Dr.Mohd.Abdul Nayeem vs Sri Shamshad Ahmed Anr
2022 Latest Caselaw 4835 Tel

 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

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,

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.

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

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?

(2011) 12 SCC 220

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

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?

AVRJ CCCA No.66 of 2002

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

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

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

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

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

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.

AVRJ CCCA No.66 of 2002

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

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.

AVRJ CCCA No.66 of 2002

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