Madhu Constructions Contractors vs Karnataka Regional Engineering College Society and The National Institute of Technology

A.S. Bopanna, J.—The appellant herein is the defendant in OS.No.216/1999. The suit in question was instituted by the plaintiffs seeking for the relief of mandatory injunction to direct the defendant and persons claiming under them to vacate from the suit �A'' schedule property and as so to direct the defendant to pay a sum of Rs. 13,500/- as damages for use and occupation of the suit W schedule property. The plaintiffs have also prayed for mesne profits. The trial Court by its judgment dated 1.2.2003 has dismissed the suit. The plaintiffs were therefore, before the lower appellate Court in RA. No.97/2003. The lower appellate Court after. re-appreciating the evidence on record has come to the conclusion that the trial Court was not justified and as such, the lower appellate Court has allowed the appeal and decreed the suit of the plaintiffs directing the defendant to not only vacate the suit schedule premises but has also directed the defendant to pay the damages as claimed by the plaintiffs. The defendant therefore, claiming to be aggrieved by the judgment of the lower appellate Court is before this Court in this appeal.

The brief facts leading to the present appeal are that, the 1st plaintiff is a society which is running Regional Engineering College at Suratkal and for construction of certain buildings in their campus had entrusted the work to the defendant under an agreement which was entered into between them during February 1993. The plaintiffs had handed over the construction site including the area, wherein the defendant is presently continuing to stay in a shed on 24.1.1992 and according to the plaintiffs, the construction was to be completed within a period of eighteen months as contemplated under the agreement for the value indicated therein. The grievance of the plaintiffs in that, despite the construction being completed and all transactions between them being closed, the defendant had failed to vacate the shed put up in schedule W property and therefore, the prayer as made in the plaint was sought for. The defendant on being served with the summons had appeared and even though the fact relating to the nature of transaction between the parties is admitted, the defendant contended that they are not unauthorisedly squatting on the said property. It was the contention of the defendant that the bills which they are entitled to for the construction put up by them had not been paid by the plaintiffs and therefore, until such payment is made,. they were entitled to stay in the premises. The trial Court on noticing the rival contentions has framed has many as nine issues for its consideration.

The parties had tendered evidence. The plaintiffs had examined PW 1, who was said to be a Draftsman in the plaintiffs'' institution and had stated with regard to the nature of the transaction. The trial Court though had noticed the said evidence had come to the conclusion that the said witness was not a competent person to tender evidence on behalf of the plaintiffs and had therefore dismissed the suit. When the plaintiffs were before the lower appellate Court, the lower appellate Court has noticed these aspects of the matter in the background of the case put forth by the parties and on coming to the conclusion that PW. 1, namely, Dinesh is a Draftsman working in the plaintiffs'' institution has relied on the evidence tendered through the said witness, keeping in view the pleading put forth by the parties and has accepted the same and in this regard has also noticed the documents which were marked on behalf of the plaintiffs. The lower appellate Court in that view has made reference to the document at Ex.P7, which is a final bill and also the document at Ex.P8. The said documents were referred to in the background of the contention of the defendant that the bills had not been paid. Insofar as the plaintiffs calling upon the defendant to vacate the premises, the lower appellate Court has referred to the notice which was marked as Ex.P6 and the contentions which were taken in response to the same. On analysing the said evidence, the lower appellate Court was of the view that the plaintiffs had established their case before the this Court and the trial Court was not justified. Insofar as the said extent, the same would indicate that the lower appellate Court has referred to the evidence in detail and has arrived at a finding'' of -fact with regard to the aspect relating to the first relief which had been sought for by the plaintiffs to direct the defendant to vacate from the suit �A'' schedule property. On that aspect of the matter, I do not see any error committed by the lower appellate Court. However, while noticing the second relief which had been sought for by the plaintiffs before the -trial Court and the manner of consideration of the same by the lower appellate Court and on hearing both the learned Counsel, I am of the view that insofar as that aspect of the matter a substantial question of law would arise for consideration as follows:

Whether the lower appellate Court was justified in decreeing the suit directing the defendant to pay the damages of Rs. 18,500/- and in this regard, whether the lower appellate Court was committed an error in granting the decree without referring to the evidence?

In this regard on hearing both the'' learned Counsel, a perusal of the judgment of the lower appellate Court would indicate that as noticed by this Court, the evidence referred to by the lower appellate Court is with regard to the relief sought for by the plaintiffs to direct the defendant to vacate the schedule premises. With regard to the damages as sought for by the plaintiffs, a perusal of the judgment passed by the lower appellate Court would indicate that no reference is made on this aspect of the matter. As noticed, the reference to the documents at Ex.P7 and P6 is in respect of the final bill and the contentions put forth thereon. Nodoubt, even though the lower appellate Court had come to the conclusion chat the defendant had over stayed in the suit schedule W premises despite having completed the construction of the premises, when the lower appellate Court was required to consider the aspect of damages as claimed by the plaintiffs, it was also necessary to look into the evidence in this regard to come to a conclusion with regard to the nature of overstay, the manner in which the damages has been prayed for by the plaintiffs and as to whether such pleading has been supported by the defendant insofar as the grant of damages. On this aspect of the matter the lower appellate Court has seriously erred and therefore, the question of law limited to the said aspect of the matter would have to be answered in favour of the appellant and the direction issued by the lower appellate Court to pay the damages would have to be set aside.

Accordingly, the appeal is allowed in part. It is clarified that the judgment and decree passed by the lower appellate Court in decreeing the suit to the extent of directing the defendant to remove the temporary structure put up in the plaint �A'' schedule property is sustained and the defendant, namely, the appellant herein is directed to vacate the premises within a period of three months from today. The direction of the lower appellate Court to the extent of holding that the plaintiffs are entitled for damages of Rs. 18,500/- is set aside.

In terms of the above, the appeal stands disposed of. No order as to costs.