IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 360 of 1998()
1. YHERAPPAN
... Petitioner
Vs
1. THANKAPPAN
... Respondent
For Petitioner :SRI.PIRAPPANCODE V.S.SUDHIR
For Respondent :SRI.GEORGE VARGHESE NARAYANPARAMBIL
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :04/08/2010
O R D E R
HARUN-UL-RASHID,J.
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S.A.NO.360 OF 1998
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DATED THIS THE 4TH DAY OF AUGUST,2010
JUDGMENT
Plaintiff in O.S.No.4/1988 on the file of the
Munsiff’s Court, Chavakkad is th appellant. The appeal is
directed against the judgment and decree in A.S.No.153/92 on
the file of the District Court, Thrissur. The suit was filed for
recovery of money. The trial court dismissed the suit and the
same was confirmed in appeal. The parties hereinafter are
referred to as the plaintiff and defendant as arrayed in the suit.
2. Plaintiff sued the defendants for realisation of
Rs.3,628.62ps. with interest at 6% per annum. Plaintiff has
engaged the defendant as a Contractor for the RCC work of his
house. According to the plaintiff, the defendant has done 120.63
square feet of pillar work and 1219 square feet of RCC work,
that the defendant is entitled to get a sum of Rs.10,077.38ps. for
the work done by him and that the defendant has received an
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excess amount of Rs.3,628.62ps. Therefore, the suit was filed for
realisation of the said excess amount.
3. The defendant denied the averments in the
plaint and prayed for dismissal of the suit. The defendant
contended that the suit is barred by limitation, that the plaintiff
has gone out of the final settlement of accounts on 28/12/1984 in
order to save the period of limitation, that no measurement was
taken on 28/12/1984 as contended by the plaintiff and that he has
no liability to pay the amount claimed in the suit.
4. The trial court as well as the Lower Appellate
Court examined the contentions of the respective parties, in the
light of the evidence adduced by them. The parties adduced oral
and documentary evidence. The courts below held that there is
nothing on record to show that the plaintiff is entitled to realise
the amount claimed in the plaint. The case of the plaintiff that
the defendant has done 120.63 square feet of pillar work and
1219 square feet of RCC work was examined, in the light of the
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contentions raised by the defendant in the written statement. The
trial court as well as the Appellate Court on merits held that
except the interested testimony of PW-1, there is no acceptable
data to show the exact quantum of work done by the defendant
and therefore, the plaintiff is not entitled to the relief sought for
in the plaint. The trial court held that the suit is barred by
limitation. The Lower Appellate Court reversed the said finding
and held that the suit is not barred by limitation. The Lower
Appellate Court also examined the question as to whether the
plaintiff has advanced any amount in excess of the amount due to
the defendant. The Lower Appellate Court, after appreciating
the evidence, agreed with the findings of the trial court and held
that the plaintiff has failed to establish the quantum of concrete
work done by the defendant for his building and has rendered
impossible for the court to calculate the amounts due to the
defendant and to arrive at the amount if any to be repaid to the
plaintiff. The Lower Appellate Court further held that the burden
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to establish as to what will be the exact amount due to him from
the defendant is on the plaintiff and that the plaintiff failed to
establish his case and therefore not entitled to any relief.
5. I have examined the rival contentions of the
parties and the findings recorded by the courts below. The
findings recorded by the courts below are purely based on the
facts and circumstances of the case. I find that no valid grounds
are made out by the appellant to interfere with the findings of fact
recorded by the courts below. No question of law much less any
substantial questions of law arise for consideration in this appeal.
In the result, the appeal fails and accordingly
dismissed. No order as to costs.
HARUN-UL-RASHID,
JUDGE.
kcv