SRI ASHOK KUMAR DASH vs CHINTAMANI MOHANTY AND OTHERS

Dr. A.K. Rath, J. Â

1.This is a plaintiff’s appeal against reversing judgment.

The plaintiff instituted the suit for realization of Rs.32,888.27 paise from the defendants. The case of the plaintiff was that he was an ‘A’

class Government contractor. The defendant no.1 invited quotation vide memo dated 4.2.88 for construction of I.T.I. (D.R.D.A.) Hostel building at

Barbil. He submitted his quotation on 19.2.88. The same was duly approved by the defendant no.2 on 23.2.88. Work order was issued to him on

27/29.2.88 for supply of materials. On 8.3.1988, the defendant no.1 had issued the letter of approval to him. Thereafter an agreement was entered into

between him and defendant no.1 on 20.3.88. Pursuant to the work order, he carried out the work. After completion of the work, he submitted the final

bill along with vouchers. But then, the final bill had not been paid. The further case of the plaintiff was that the work was being supervised from time

to time by the official of the defendants as per letter dated 8.3.88. Extra items beyond agreement were used as per verbal discussion. As per the

discussion with the official in charge of supervision of the work, binding wires, centering materials, bricks, chips, sands were purchased by him from

the local market. He had hired mixture machine from the P.W.D., Barbil. He had also incurred expenses towards clearing of jungle and removing

debris from the work site. As the payment was not made, he instituted the suit seeking the reliefs mentioned supra after issuing notices under Sec.80

C.P.C. to the defendants. Â

Defendant no.1 filed written statement pleading inter alia that the final bill amount had been paid to the plaintiff on 23.5.90. The security deposit had

also been released and no further payment was permissible to the plaintiff under the terms of contract. There was no entry in the stock book of his

office with regard to extra materials said to have been used by the plaintiff in the construction work. No money was payable to the plaintiff.Â

Stemming on the pleadings of the parties, learned trial court struck five issues. Parties led evidence, oral and documentary, to substantiate their

cases. On an analysis of the evidence on record and pleadings, learned trial court came to hold that the plaintiff is entitled to Rs.17,272.00. Learned

trial court observed that the plaintiff suffered due to the negligence of the then principal Chintamani Mohanty. It granted liberty to the defendants to

realize the entire decretal amount from the salary or personal property of Chintamani Mohanty. It also granted liberty to the plaintiff to realize an

amount of Rs.5,000/- from the then principal Chintamani Mohanty. Held so, it decreed the suit. The contesting defendant did not file any appeal.

Chintamani Mohanty filed Money Appeal No.4 of 1995 before the learned District Judge, Keonjhar along with applications; seeking leave of the court

to file appeal and condonation of delay. On 11.9.95, learned appellate court observed that the appellant files a petition praying to grant leave to the

appellant to prefer appeal and adjourned the matter to another date for consideration of the said petition. The application for condonation of delay

having been rejected, the plaintiff filed Civil Revision No.255 of 1996 before this Court. A Bench of this Court set aside the order passed by the

learned appellate court. After disposal of civil revision, learned appellate court heard the appeal on merit and allowed the same. Hence this second

appeal. Â

The second appeal was admitted on the substantial questions of law enumerated in ground nos.(i), (ii) and (iii) of the appeal memo. The same are:

“(i) Whether an appeal by a person who is not a party to the suit can prefer an appeal without leave of the Court. The law is well settled that a

person who is not a party has to obtain leave and in the absence of such leave, the appeal is incompetent.

(ii) Whether the lower appellate court can vacate the entire decree when the defendants have not preferred an appeal. It is submitted that the

discretionary provision of Order 41, Rule 33 C.P.C. cannot be called in aid to wipe out the entire decree of the trial court. The decree against

defendant nos.2 and 3 should stand.

(iii) Whether the beneficent provisions of Section 70 of the Contract Act are attracted. The law is well settled that where a Builder having contracted

to construct a premises and having done substantial work which was not intended to be gratuitous, is entitled to compensation on the doctrine of

quantum meruit.â€​ Â

Heard Mr. P.V. Balakrishna Rao, learned counsel for the appellant. None appears the respondents.

Mr. Balakrishna Rao, learned counsel for the appellant, submits that the contesting defendant no.1 had chosen not to file appeal. Respondent no.1,

who was not a party to the suit, filed appeal before the learned District Judge, Keonjhar against the observation made by the learned trial court along

with an application seeking leave of the court to file appeal. The same was not allowed. Learned appellate court proceeded to decide the appeal on

merit and as such the judgment is vitiated.

Respondent no.1 was not a party to the suit. Against the observation made by the learned trial court supra, he filed Money Appeal No.4 of 1995

before the learned District Judge, Keonjhar along with two applications; one seeking leave of the court to file appeal and another for condonation of

delay. Once the delay is condoned, a duty is cast upon to the learned appellate court either to grant or refuse the leave. But the learned appellate court

proceeded to decide the appeal on merit. Â

A party cannot be made to suffer on account of an act of the Court. There is well-recognized maxim of equity, namely, actus curiae neminem

gravabit which means an act of the court shall prejudice no man. This maxim is founded upon justice and good sense which serves a safe and certain

guide for the administration of law.Â

The next question crops up as to whether the appeal filed by the non-party to the suit against any observation made by the trial court is

maintainable ? The answer is emphatically no. In Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126, the apex Court held that a suit for

its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite.

The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of

appeal is described as a creature of statute. Under Sec.96(1) of the Code of Civil Procedure, save where otherwise expressly provided by the Code

or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction, to the Court

authorised to hear appeals from the decisions of such Court. No appeal can lie against a mere finding for the simple reason that the Code does not

provide for any such appeal.

Chintamani Mohanty, respondent no.1, was not a party to the suit. Thus any observation made by the learned trial court against him is wholly

unwarranted. Further the observation made by the learned trial court is infraction of principle of natural justice.

In his inimitable style, Justice Krishna Iyer in Chairman, Board of Mining Examination & another v. Ramjee, AIR 1977 SC 965 proclaimed that

“natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded

against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each

situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and

other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man

shall be hit below the belt--that is the conscience of the matterâ€. In view of the same, the observation made by the learned trial court with regard to

recovery of money from the respondent no.1 is expunged. The substantial questions of law are answered accordingly.

In the wake of aforesaid, the impugned judgment is set aside. The appeal is allowed. Consequently the suit is decreed.