High Court Kerala High Court

Yherappan vs Thankappan on 4 August, 2010

Kerala High Court
Yherappan vs Thankappan on 4 August, 2010
       

  

  

 
 
  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.
             ------------------------------
                     S.A.NO.360 OF 1998
             -------------------------------
            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

-2-
S.A.No.360/98

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

-3-
S.A.No.360/98

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

-4-
S.A.No.360/98

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