IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1064 of 2009()
1. P.V.JOSEPH
... Petitioner
Vs
1. ABDULLA
... Respondent
For Petitioner :SRI.MANJU ANTONEY
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/10/2009
O R D E R
THOMAS P JOSEPH, J
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R.S.A.No.1064 of 2009
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Dated this 20th day of October 2009
JUDGMENT
Appellant, having successively failed in the two courts in his
attempt to get damages recovered from the respondent has come up
in second appeal raising as substantial questions of law, whether
courts below are justified in presuming that payments to the appellant
has been made by the respondent from time to time since payment is
denied and whether the courts below are justified in non suiting the
appellant inspite of report of advocate commissioner.
2. Appellant is a contractor by occupation and it is not
disputed, he had undertaken to perform concrete work of the house of
respondent as per an agreement dated 15-03-2001. As per the
agreement work was to be finished within a period of three months.
Labour charge was fixed at Rs.10/- per square foot. According to the
appellant, he agreed to carry out the work within three months on the
representation of respondent that the latter would supply materials but
respondent failed to supply material on time. The first phase of work
could be finished only by 07-04-2001. Again there was delay in work
of second phase due to delay on the part of respondent in supplying
materials. Centering work could be finished only on 09-06-2001.
Appellant was ready and willing to carry out the remaining part of the
R.S.A.No.1064 of 2009 2
work as well and wanted respondent to supply materials but,
respondent did not do so. Hence appellant was not able to carry out
the work. Alleging that respondent committed breach and that
appellant suffered damages to the tune of Rs.90642.95/- on the
different heads stated in the plaint he instituted the suit. Respondent
denied the allegations and contended that breach was on the part of
appellant. He claimed that appellant received Rs.20,823/- from him
and that the materials used for centering work was of law quality and
was damaged in rain. Respondent claimed that he suffered loss of
Rs.51,823/- due to the delay in completing the work. Learned Munsiff
found that breach was on the part of appellant and dismissed the suit.
Appellate court has confirmed the finding. Learned counsel for
appellant contends that courts below are not justified in non suiting the
appellant inspite of evidence let in by him. It is also contended by
learned counsel that if at all there was any mistake on the part of the
Advocate Commissioner in preparing the report appellant should not
have been punished for that.
3. A second appeal on a finding of fact entered by the first
appellate court is permissible only when the finding is based on no
evidence or, when the finding is perverse. The trial court as well as
first appellate court found on evidence that breach was on the part of
appellant. Appellant gave evidence as PW1 and examined PWs.2 to 4
R.S.A.No.1064 of 2009 3
in support of his case. PW4 is an engineer who issued Ext.A2
certificate supporting the appellant and showing the loss allegedly
caused to the appellant. But it came out in evidence that he had not
even gone to the work place. Trial court observed that PW4 issued
Ext.A2 on the information given by the appellant which cannot be
taken into account. So far as Exts.C1 and C2, reports prepared by
CW1, advocate commissioner is concerned courts below found on
evidence that the reports cannot be accepted. Trial court also
observed that the commissioner inspected the property and prepared
the report without notice to the respondent. On the other side, there is
evidence of DWs.1 to 3 who stated that the breach was on the part of
appellant. First appellate court observed that claim of appellant who is
a contractor by occupation that he continued to carry out the second
phase of the work and even went for the third phase of the work
without receiving any amount from the respondent is quite difficult to
believe. Trial court also found that low quality wooden planks were
used for centering work and that there was much space between the
wooden planks used for centering work with which no proper concrete
work could be done. Courts below referred to the oral and
documentary evidence and came to the conclusion that breach was on
the part of appellant and non suited him. That finding is based on an
appreciation of the evidence on record. No question of perverse
R.S.A.No.1064 of 2009 4
finding is involved calling for interference in the second appeal. On
going through the judgment under challenge and hearing learned
counsel I do not find any substantial question of law involved in the
second appeal requiring its admission and notice to the respondents.
Accordingly the second appeal fails. It is dismissed in limine.
THOMAS P JOSEPH, JUDGE
Sbna/
