IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 622 of 1999(A)
1. SMT.G.AMBIKA DEVI
... Petitioner
Vs
1. SRI.K.CHELLAPPAN
... Respondent
For Petitioner :SRI.T.P.VARGHESE
For Respondent :SRI.M.R.RAJENDRAN NAIR (SR.)
The Hon'ble MR. Justice HARUN-UL-RASHID
Dated :10/09/2009
O R D E R
HARUN-UL-RASHID, J.
= = = = = = = = = = = = = = = = = = =
A.S. No. 622 of 1999
= = = = = = = = = = = = = = = = = = =
Dated this the 10th day of September, 2009
JUDGMENT
The defendant in O.S.539/1999 on the file of Principle Sub
Court, Kottayam, is the Appellant. The suit is for realization of
money due to the plaintiff as balance amount for the
construction work executed by him for the defendant. The suit
was filed for realization of Rs.48,318.50 paise with interest.
The suit was partly decreed finding that the plaintiff is entitled
to get an amount of Rs.33,962/- for the works done by him
from the defendant with 12% interest. Aggrieved by the decree
and judgment passed by the trial Court, the defendant in the
suit preferred this appeal challenging the findings. The parties
are herein after referred as plaintiff and the defendant.
2. The plaintiff filed the suit for realization of the balance
amount due to him from the defendant for the work done by
him. The estimated cost of work was Rs.1,85,000/-.
Admittedly, plaintiff has executed the work. The plaintiff also
A.S.622/1999
2
carried out some additional construction namely car porch,
compound wall, store room etc. It is not included in the plan. It
is the plaintiff’s case that on 09.09.1991, he entered into an
agreement with the defendant for carrying out the extension
work of her residential building. He executed the work as per
the specification and satisfaction of the defendant. Ext.A1 is the
copy of the agreement with specification attached. It is the
plaintiffs case that he had executed additional work and therefore
he is entitled to get Rs.54,718.50 paise. According to him after
deducting the agreed amount of Rs.8,400/- towards diminision of
area and value of the article used, the claim is limited to an
amount of Rs.48.318.50 paise from the defendant.
3. The defendant contended inter alia, that there is no
written agreement between the parties, that the estimated
quantity of work was 1000 sq. feet and agreed rate is Rs.200/-
per sq. feet. The additional work of car porch, compound wall,
store room and for other extra work, the estimated cost is
Rs.15,000/- and 17,000/-. According to the defendant, the cost
A.S.622/1999
3
of additional construction was only Rs.32,000/-. She further
contended that, she had paid over payment of Rs.12,580/-. A
counter claim was also filed seeking to realize the said amount
with 6% interest.
4. The evidence in this case consists of the oral evidence of
PW1 to PW4 , A1 to A3, PW1 and PW2, B1, B2 and C1 and C1(a)
plan. The question to be examined by this Court is whether the
decree and judgment passed by the trial Court is liable to be
interfered with any other reasons set out in the memorandum of
appeal and urged at the time of hearing. The trial Court
examined the issues in detail, and decided the issues framed.
5. Admittedly the estimated cost of work is Rs.1,85,000/-
and the plaintiff had executed the work. It is also not in dispute
that the plaintiff carried out additional work, namely car porch,
store room, compound wall etc. Ext.A1 is a copy of the
agreement and specification. Ext. A2 is a copy of the plaint and
A3 is the statement of account for construction works done by
A.S.622/1999
4
the plaintiff. As PW1, the plaintiff testified that he entered into
A1 agreement with the defendant and the defendant entrusted
Ext.A2 plan. According to him, he had executed the work as per
specifications and in terms of the agreement to the satisfaction of
the defendant. He also testified about the additional works
carried out by him and that the estimated cost of the additional
work is Rs.54,718.50 paise. PW2 is the Retired Engineer who
had drawn up Ext.A2 plan. PW2 testified that A2 plan was
prepared by him and the plinth area is 300 sq. meters. He also
testified that the store room construction was not included in the
plan and the construction works were not carried out by the
specification and as per his instructions. Ext.C1 and C1(a) are
the report and plan prepared by the commission. The
commissioner was examined as PW3. PW4 is the retired PWD
Engineer who assist the Commissioner and prepared C1(a) plan,
sketch and valuation report. The measurement of car porch and
store room is shown in the report and plan. The plinth area is
215.67 Sq. feet. DW1 the husband of the first defendant was
examined, he testified that there was no written agreement and
A.S.622/1999
5
the plaintiff agreed to execute the work of 1000 sq. feet at the
rate of Rs.200/- per sq. feet.
6. The trial Court examined the oral and documentary
evidence adduced by the parties elaborately. It is true that the
agreement and the specification were not signed by the
defendant, at the same time the testimonies of PW1 and PW2
and the admission regarding the construction by DW1, it is clear
that the agreement and the specification was intended to be
acted upon. The evidence of PW2 also show that the plaintiff
prepared plan and specification for the works in question and it
was shown to the defendant and he approved the agreement and
specification. PW4 also testified before the Court that a building
like, the present one cannot be constructed without any
agreement and specification. It is not in dispute that PW2 and
PW4 are experts in the field of building construction. Trial Court
believed the evidence to PW2 and PW4 which supports the case
of the plaintiff that there was a written agreement and
specification for the work done by him and with regard to the
A.S.622/1999
6
quantity of work. The evidence of PW3 commissioner, PW4
Engineer and the oral and documentary evidence support the
case of the plaintiff. Ext.C1(a) is the valuation report and plan
prepared by PW4. As per the report and plan, the plinth area of
the main portion of the new construction is 931.73 sq. feet. Exts.
C1 report and C1(a) plan, sketch and valuation are proved
through PW2 and PW4. Nothing has been brought out in their
cross examination. From the evidence discussed above, it can
be seen that the plinth area is 931.73 sq. feet.
7. Issue regarding, the cost of additional construction was
also gone into detail by the trial Court. I have also examined the
evidence on record. Ext.C1(a) plan shows that the plinth area of
the car porch is 152 sq. feet and the plinth area of store room is
63.67 Sq. feet. PW4 in his valuation report has estimated the
cost of construction at Rs.2,16,962/-. The trial Court accepted
the contention of the appellant and fixed the rate at Rs.200/- per
sq. feet. At the said rate, additional cost of construction work is
worked out at Rs.43134/- excluding the cost of compound wall
A.S.622/1999
7
constructed on either side of the gate. After deducting the cost
of materials, the Court below found that the total cost of
construction is Rs.2,16,962/- and that after deducting the
amount already paid the balance amount due to the plaintiff is
work out at Rs.33,962/-. The decree passed by the trial Court
allowing the plaintiff to realize a sum of Rs.33,962/- with future
interest. The findings and reasonings of the trial Court was re-
examined and re-appreciated by this Court. I find that no
sustainable grounds are made out by the appellant to interfere
with the findings passed by the Court below. According to me
the view taken by the trial Court is the only view possible in the
given circumstances. I find that no grounds are made out for
interference. Hence the appeal fails and accordingly dismissed
with cost.
HARUN-UL RASHID,
JUDGE
SS