Sangaraj Sarnad Goudar S/O Kallanna ...
vs Niranjan S/O Kamalakar Rao on 18
January, 2023
Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O
Kamalakar Rao on 18 January, 2023
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR.JUSTICE C.M.POONACHA
RSA No.7050/2009 (REC/MON)
BETWEEN
SANGARAJ SARNAD GOUDAR
S/O KALLANNA GOUDA SARNAD
AGE: 56 YEARS, OCC: LECTURER
R/O DATTANAGAR, JEWARGI COLONY
GULBARGA
...APPELLANT
(BY SRI M. M. PATIL, ADVOCATE)
AND
NIRANJAN S/O KAMALAKAR RAO
AGE:45 YEARS, OCC: CONTRACTOR
R/O BRAHMAPUR, GULBARGA
...RESPONDENT
(BY SRI YASHAS S. DIKSHIT, ADVOCATE FOR
SRI GANESH S. KALBURGI AND
SMT. JYOTI KULKARNI, ADVOCATES)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGEMENT AND DECREE DTD. 01.01.2009
PASSED IN R.A.NO.30/2005 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE AT GULBARGA PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD.
22.03.2005 PASSED IN O.S.NO.211/1996 ON THE FILE OF THE
II ADDL. CIVIL JUDGE (SR.DN.) GULBARGA.
2
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
January, 2023
10.01.2023, COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This Second Appeal is filed by the Defendant seeking to set aside the Judgment and
Decree dated 01.01.2009 passed in Regular Appeal No.30/2005 by the Principal
District Judge at Gulbarga.
2. The parties are referred to as per their rankings before the Trial Court for the
purpose of convenience.
3. The Plaintiff filed a suit in O.S. No.211/1996 for recovery of a sum of `98,272/-
together with interest and costs from the Defendant. It is the case of the Plaintiff that
he is a Contractor and the Defendant had entrusted him the work of construction of a
house in his plot bearing No.56 at Sy. No.89/1/A at Datta Nagar, Jewargi Colony,
Gulbarga measuring 40x60; that the Plaintiff and the Defendant executed an
agreement dated 27.4.1994 in this regard and the plan as per which the construction
was required to be made was annexed to the Agreement; that it was specifically
agreed between the plaintiff and defendant that if any extra construction or any
deviation from the original agreement was made then the cost of the deviation would
be paid by the defendant.
4. It is the further case of the Plaintiff that he started the construction work as per the
agreement in the first week of May 1994 and in the course of construction, he carried
out certain extra works and that the extra construction carried out was as per the
instructions of the Defendant; that the Plaintiff completed the construction work in the
month of March 1995 and the last payment made by the Defendant was `20,000/- on
06.03.1995; that the Plaintiff had carried out extra construction of a sum of `80,272/-
and that the Defendant had promised to pay the amount of extra work within a short
period. However, since he did not pay the same, the Plaintiff got issued a legal notice
and it was served on the Defendant. Thereafter, the Plaintiff filed a Suit claiming a
sum of `80,272/- towards extra work carried out and a sum of `18,000/- towards
interest. Hence, the Suit was filed for a recovery of total sum of `98,272/- together
with further interest.
5. The Defendant entered appearance and contested the suit of the Plaintiff and filed
written statement inter alia contending that no extra work/construction was carried
out by the Plaintiff as averred in the plaint and that the Plaintiff had issued certificates
on various dates detailing the works carried out. Further that, based on the said
certificate, the HDFC released the loan amount to him; The Defendant further
averred that the Plaintiff had used substandard material for construction of
work, due to which cracks have been developed in the roof and walls and as such,
denied his liability to pay any further amount to the Plaintiff and sought for dismissal
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
of the suit. January, 2023
6. The Trial Court, pursuant to the pleadings filed by the parties, framed five issues.
The Plaintiff examined himself as PW.1 and got marked three documents i.e. Exs.P1 to
P3. The Defendant examined himself as DW.1. However, no documents were marked
in evidence. The Trial Court vide its judgment and decree dated 22.03.2005, dismissed
the suit filed by the Plaintiff.
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
January, 2023
7. Being aggrieved, the Plaintiff filed R.A. No.30/2005. The Defendant who was
arrayed as Respondent before the First Appellate Court entered appearance in the
said Appeal and contested the same. The First Appellate Court vide its judgment dated
01.01.2009, allowed the Appeal filed by the Plaintiff, set aside the Judgment and
Decree passed by the Trial Court and decreed the suit of the Plaintiff in part and held
that the Plaintiff was entitled from the Defendant in a sum of `43,281/- together with
proportionate cost. Being aggrieved, the present Second Appeal is filed.
8. This Court vide order dated 21.08.2009, admitted the above Second Appeal and
framed the following substantial question of law for consideration in this second
appeal:
Whether in the facts and circumstances of the case, the Appellate Court was justified
in reversing the findings of the Trial Court and decreeing the suit?
9. The learned counsel for the appellant/defendant contends that there is no pleading
regarding extra work in the plaint; that the plaintiff had completed the construction
work and had received the entire payments and after one year of the same, the
demand for extra payment has been made; that the extra work carried out has not
been proved; that despite the defendant filing objections to the Commissioner's
Report, the Commissioner has not been examined by the plaintiff and hence, the first
appellate Court ought not to have relied on the Commissioner's Report. Hence, he
seeks for answering of the substantial question of law in the negative and for allowing
the appeal and granting of the reliefs sought for therein.
10.Per contra, learned counsel for the respondent/plaintiff submits that the averments
made in paragraph No.5 of the plaint regarding extra construction has not been
denied by the defendant in his written statement; no ground has been taken in the
above appeal regarding consideration of the Commissioner's evidence by the first
appellate Court and hence, the appellant cannot be permitted to urge the said
contention; that the agreement executed between the parties being undisputed and
the said agreement contains clause for payment towards any extra work done by the
plaintiff and the defendant in his cross-examination admitting to the same, he is liable
to pay for the extra work done by the plaintiff; that the Commissioner's Report clearly
discloses carrying out of the extra work by the plaintiff and the extra work having
been carried out by the plaintiff, he is liable to be paid having regard to Section 70 of
the Indian Contract Act. In reliance of his contention that in the absence of the
Commissioner being examined also, the report filed can be considered, the learned
counsel relies on a judgment rendered by a Coordinate Bench of this Court in the
case of Parappa and Another vs. Bhimappa and Another1.
11. I have considered the submissions made by both the learned counsel and
perused the material available on record.
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12. The January, 2023facts are that the defendant and the plaintiff
undisputed entered into an
agreement dated 27.04.1994 for construction of a residential house in the property of
the defendant and that the said construction work was completed by the plaintiff. The
dispute is only with regard to the extra work allegedly done by the plaintiff, which the
defendant has denied. The Trial Court, after both the parties filed their respective
pleadings has framed the following five issues:
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
January, 2023
ILR 2008 KAR 1840
1) Whether the plaintiff proves that the defendant has consented for the
extra construction work cost shown in Annexure-A of the defendant's
house?
2) Whether the plaintiff is entitled to recover `80,272/- as the cost
of extra construction work mentioned in Annexure-A and interest of
`18,000/- as per agreement from the defendant?
3) Whether the defendant proves that the plaintiff has constructed house
as per agreement between the parties, hence, he is not liable to pay the
suit amount towards cost of extra construction work?
4) Whether the plaintiff is entitled for the decree prayed in the plaint?
5) What decree or order?
13.The Trial Court while considering issue Nos.1 to 3 has recorded the
following findings:
i. The material on record substantially prove that the defendant having
agreed to pay the extra charges for any construction or deviation from
the approved plan.
ii. That as per the agreement, the earthwork for foundation was to be dug
up to 3' average, but, the plaintiff contends has done the work of
foundation to a depth of 5½' all over because there was no hard soil till
that depth. However, the Commissioner in his report has noticed that the
depth of foundation on all the four corners of the building is 1.40 metres
or 4.59'. iii. As per the agreement, the parties are required to do
earthwork to a depth of 3' only. Hence, the plaintiff was not entitled to
extra charges towards the earthwork for foundation done beyond the said
3'.
iv.The plaintiff was not entitled for extra charges towards soiling for floorings.
v. That the Court is not in a position to appreciate whether the plaintiff
has fixed extra windows in the said house more than what is specified in
the approved plan.
vi.That the plaintiff has done extra work by fixing five more doors in the house.
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
vii. January,
That 2023
the plaintiff has failed to prove any extra work done towards Rex
and Shelves.
viii.That the plaintiff has done extra work in respect of projection of roofing.
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
January, 2023
ix. There is no material to demonstrate that the plaintiff has done extra
work of roof, plaster, sevara finish in hall and dining, sundry works and
parapet wall.
x. The plaintiff was not entitled to extra amounts towards plumbing/sanitary work.
xi. The plaintiff has not proved any extra work of plastering and finishing.
xii. That the agreement between the parties did not specify the rates at
which the plaintiff is entitled to for extra work.
xiii.The material on record indicates that the plaintiff has done extra work
in respect of the doors and roofing projection.
xiv. That there is no agreement to pay the interest. The Trial Court held
that the plaintiff has failed to prove issue Nos.1 to 4 and dismissed the
suit.
14. It view of the aforementioned, it is clear that even the Trial Court
has considered the Commissioner's Report and has noticed that the
plaintiff has done extra work. However, merely because there was no
agreed rate fixed in the agreement with regard to the extra work, the
Trial Court has dismissed the suit of the plaintiff.
15.The first appellate Court has re-appreciated the entire material on
record including the Commissioner's Report and has held that the
Commissioner's Report is the part of the record and the same can be
looked into. The first appellate Court has held that the plaintiff has
carried out the following extra work and the amounts to which the
plaintiff is entitled to:
i. With regard to extra work done by the plaintiff regarding the foundation
which has been done for 1.59' at the rate of 54.26 per cubic metre, and
the rubble filling, the plaintiff is entitled to `374/- and `13,289/- and
regarding soling of the flooring
`5,542/-
ii. That the plaintiff has fixed five extra doors and is entitled to `15,993/- and `772/-.
iii. The plaintiff has done projection of roof on all sides of the wall to the extent of 3'
and the plaintiff is entitled to `2,788/- and `523/- for plastering of the extra projection.
iv.The plaintiff is entitled to a sum of `4,000/- towards landing room to the staircase.
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Hence, the January, 2023
plaintiff is entitled to extra work in a sum of `43,281/- together with
proportionate cost.
16. The first appellate Court has also relied on the Commissioner's Report and has
also noticed other material on record for the purpose of re-appreciating the fact that
the plaintiff has done extra work and for the purpose of ascertaining the amount to
be awarded towards extra work done by the
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January, 2023
plaintiff. The first appellate Court has noticed that the rates stated by the plaintiff has
not been challenged in cross-examination. That the defendant, except contending that
he is not liable to pay the extra work done by the plaintiff, has not stated about the
rate which has been stated by the plaintiff regarding the extra work done by him.
Hence, it is clear that there is a concurrent finding of fact that the plaintiff has done
extra work and the appellant/defendant has failed to demonstrate as to how the said
concurrent finding of fact is erroneous and liable to be interfered with in this second
appeal.
17. The first appellate Court has further noticed that there is a specific clause in the
agreement dated 27.04.1994 that contemplates carrying out of extra work which is to
be paid by the defendant. The same has also been admitted in the cross-examination of
DW.1.
18.Further, both the Trial Court and the first appellate Court have relied on the
Commissioner's Report. The first appellate Court has recorded a finding that the
Commissioner's Report can be looked into as it found part of the record irrespective as
to whether the Commissioner is examined or not. A Coordinate Bench of this Court in
the case of Parappa (supra), has held as follows:
"22. xxx It is thereafter when the commissioner/expert submits his report
to the Court which appointed him, the report of the Commissioner shall
become evidence in the suit and shall form part of the record.
Therefore, the report of the commissioner/expert prepared and submitted
on the orders of the Courts stands on a totally different footing in the
matter of admissibility than the report of an expert prepared at the
instance of either of the parties of the suit or at the instance of the
prosecution in a criminal case xxx.
23. Therefore, the expert becomes a Commissioner only when court
appoints him under order XXVI of the CPC. The expert is only a witness
for the prosecution in a criminal case, and a witness for the party who
appointed him in civil cases. It is only the report of the Commissioner,
who is appointed by the Court, shall be evidence in the suit and shall
form part of the record and it is not necessary to examine him and get it
marked through him to make it evidence."
(Emphasis supplied)
19. Having regard to the judgment of this Court in the case of Parappa (supra), it is
clear that the Commissioner's Report can be relied upon and shall become evidence in
the suit and shall form part of the record, even in the absence of Commissioner being
examined and the said report being marked and exhibited in the case.
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20. The appellant/defendant in this second appeal has not pointed out any specific rate
of any specific extra work that has been assessed by the first appellate Court being
either contrary to the material on record or the assessment being made without any
material on record for the same to be erroneous.
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Sangaraj Sarnad Goudar S/O Kallanna ... vs Niranjan S/O Kamalakar Rao on 18
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21. The first appellate Court has noticed all the materials on record and re-
appreciated the entire matter. As noticed above, even the Trial Court had recorded
that the plaintiff had carried out extra work. However, only on the ground that the
rate at which the plaintiff is sought to be paid for the extra work was not agreed upon
between the parties, the Trial Court has dismissed the suit of the plaintiff. The first
appellate Court having noticed each of the items of the extra work and the rate
payable for the same, has reversed the judgment and decree of the Trial Court and
partly decreed the suit in favour of the plaintiff only to the extent of `43,821/- together
with proportionate cost. In the absence of any evidence regarding interest, the first
appellate Court has rightly not awarded any interest.
22.The first appellate Court has noticed the material on record and set out adequate
reasons while partly decreeing the suit filed by the plaintiff. Hence, it cannot be said
that there was no material basis or justification for the first appellate Court to reverse
the findings of the Trial Court and decreeing the suit of the plaintiff in part. In view of
the same, substantial question of law framed for consideration by this Court is
answered in the affirmative and against the appellant.
23. Hence, the above appeal is dismissed. The judgment and decree dated 01.01.2009
passed in R.A.No.30/2005 by the Principal District Judge at Gulbarga decreeing the
suit of the plaintiff in part holding that the plaintiff is entitled to `43,281/- from the
defendant with proportionate cost is upheld.
Sd/-
JUDGE BS/Srt
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