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SA/129/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 129 of 2009
With
CIVIL
APPLICATION No. 291 of 2010
In
SECOND
APPEAL No. 129 of 2009
With
CIVIL
APPLICATION No. 3472 of 2010
In
SECOND
APPEAL No. 129 of 2009
=========================================================
PRESIDENT,
DISTRICT PANCHAYAT & 1 - Appellant(s)
Versus
MAGANBHAI
N PATEL - Defendant(s)
=========================================================
Appearance
:
MR
SS PATEL for
Appellants
None for
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 12/08/2010
ORAL
ORDER
This
appeal is preferred by the appellants-original defendants under
Section 100 of the Code of Civil Procedure, 1908 challenging the
judgment and decree dated 1st September 2008 by the
learned Additional District Judge, 4th Fast Track Court,
Godhra, District Panchmahals in Regular Civil Appeal No. 148 of 2005
dismissing the appeal with costs and confirming the judgment and
decree dated 30th June 2001 passed by the learned Civil
Judge [S.D.], Godhra in Special Civil Suit No. 154 of 1991.
2. Respondent-original
plaintiff had preferred Special Civil Suit No. 154 of 1991 against
the present appellants-original defendants for recovery of Rs.
85,870/-. The Trial Court, after perusing he evidence on the record
of the case, partly allowed the suit and finally decreed the suit to
the tune of Rs.70,290/- along with interest at the rate of 6% p.a.
from 2.9.1989 till filing of the suit. Further direction was also
given to pay interest at the rate of 9% from the date of filing of
the suit till realization. The aforesaid order was challenged in
appeal by the present appellants by way of Regular Civil Appeal No.
148 of 2005. Learned Appellate Judge also considered at length the
submissions canvassed by both the parties and confirmed the judgment
and decree passed by the learned Trial Judge.
3. Mr
S.S. Patel, learned advocate appearing for the appellants submitted
that both the courts below have committed an error apparent on the
face of the record in appreciating the evidence on the record of the
case and decreeing the suit of the respondent-plaintiff. It is
submitted that the judgments and decree passed by the courts below
partly allowing the suit and directing the present appellants to pay
Rs.70,290/- with 9% p.a. interest is ex-facie illegal and contrary to
the provisions of law and therefore, the same deserves to be quashed
and set aside. The courts below have materially erred in holding
that the present appellants have not supplied the required Schedule
A material as and when it was required by the plaintiff which
has resulted into delay in execution of work by the plaintiff which
ultimately has resulted into miscarriage of justice. The work order
was issued by the Executive Engineer on 19.5.86 and the said work was
to be commenced from the date of the letter inviting tenders i.e. on
19.5.86 and required to be completed within a period of three months
i.e. on or before 18.8.86. Ultimately, the plaintiff completed the
work on 31.3.87 and, therefore, the Trial Court ought to have
dismissed the suit and ought not to have directed the present
appellants to pay the amount due to delay in execution of work which
was attributable to contractor only. The courts below have also
erred in holding that the respondent is entitled to recovery of
Rs.38,000 for extra items and that has resulted into miscarriage of
justice. Thus, considering the reasons assigned by the courts below,
it is a fit case to admit the Appeal and grant stay as prayed for in
the Civil Applications.
4. I have
heard learned advocate Mr S.S. Patel for the appellants at length and
in great detail. I have considered the judgments and decree rendered
by the courts below and the reasons assigned therein. The courts
below have taken into account the evidence on the record of the case
in its true perspective and have also considered each and every claim
on their own merit. On the basis of the pleadings, the Trial Court
framed Issues and came to a conclusion after going through the entire
oral as well as documentary evidence that the respondent is entitled
to suit claim and the issue was answered partly in the affirmative by
the Trial Court. The second Issue with regard to interest which is
awarded to the respondent was also dealt with by the Trial Court at
length and the Trial Court came to a conclusion that the
respondent-plaintiff is entitled to interest at the rate of 6% p.a.
from 2.9.89 till filing of the suit. Further direction was given to
pay interest at the rate of 9% p.a. from the date of filing of the
suit till realization of decretal amount. Considering the oral as
well as documentary evidence, the Trial Court came to a conclusion
that the defendants had committed breach of contract and because
there was delay and hindrances and breaches committed by the
appellants, the work could not be executed for long period. It is
also observed by the Trial Court that during the given period, prices
of the material and labour had also increased by 20%. It has been
held by the Trial Court that the department had agreed to get the
work completed within certain period, but the first floors of the
buildings were not vacated and not made available to the contractor
for carrying out the work. This delay was entirely due to fault on
the part of the department and, therefore, the contractor could not
complete the work in time. Aforesaid aspect has been considered by
the Trial Court in exhaustive manner. The Appellate Court has, while
considering the entire gamut of oral as well as documentary evidence,
held that the Trial Court has not committed any illegality in passing
the decree as prayed for and, therefore, the appeal preferred by the
present appellants was dismissed with costs. Learned Appellate Court
confirmed the decree passed by the Trial Court on perusal of the
entire record of the case and more particularly, oral depositions and
documentary evidence on which heavy reliance is placed by both the
sides. The courts below, in my view, have not committed any infirmity
or illegality in passing the judgments and decree which are under
challenge before this Court in Second Appeal. Even on perusal of the
record of the case, no substantial question of law is involved in
the Appeal which would call for interference by this Court while
exercising powers under Section 100 of Code of Civil Procedure.
5. For
the foregoing reasons, there is no merit in the Appeal and the same
is, therefore, dismissed.
6. As the
Second Appeal is dismissed today, Civil Application Nos. 291 of 2010
and 3472 of 2010 do not survive and the same are disposed of.
[H.B.
ANTANI, J.]
pirzada/-
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