AI Structured Summary
Not yet generated for this judgment
Judgment
S.C. Das, J.—1. This second appeal is directed against the Judgment and appellate decree dated 13.11.2009 passed by the learned Additional District Judge, West Tripura, Agartala, in Money Appeal No. 32 of 2006. The second appeal has been admitted for hearing on the following substantial question of law:--
"Whether the learned First Appellate Court was correct in considering the above mentioned para 7 of the written statement as admission of execution of the work by the respondent prior to the issuance of the work order dated 21.03.1994?"
Heard learned counsel, Mr. G.S. Bhattacharji for the appellants and learned senior counsel, Mr. S.M. Chakraborty, assisted by learned counsel, Ms. B. Chakraborty for the respondents.
At the very outset, learned counsel, Mr. Bhattacharji submitted that the substantial question of law, which was formulated on 14.03.2012, cannot be legally termed as a substantial question of law and, therefore, prayed for framing a fresh substantial question of law in lieu of earlier one in terms that the Judgment and decree passed by the Appellate Court in Money Appeal No. 32 of 2006 suffer from perversity for non-consideration of the real issue in controversy consistent with the pleadings and evidence on record.
Learned senior counsel, Mr. S.M Chakraborty for the respondents has submitted that since the appeal has already been admitted he has no objection if a fresh substantial question of law is formulated in view of the submission of learned counsel, Mr. Bhattacharji. Accordingly, the following substantial question of law is formulated:--
"Whether the Judgment and decree dated 13.11.2009 passed by learned Additional District Judge, Court No. 3, Agartala, in Money Appeal No. 32 of 2006 suffer from perversity for non-consideration of the real issue in controversy, consistent with the pleadings and evidence on record."
Sri Dulal Roy, since deceased, predecessor of the present respondents, as plaintiff, (hereinafter mentioned as ''plaintiff'') instituted Money Suit No. 110 of 1998 against the appellants herein, arraying them as defendants (hereinafter mentioned as defendants) seeking a decree for realization of an amount of Rs. 2,19,085/- with interest there on.
The case of the plaintiff, in short, is that respondent No. 3 issued Work Order dated 27.04.1992 in favour of the plaintiff for execution of a work, namely:--
"Maintenance of Government School building under ''A'' Sub- Division/Anandanagar, J.B. School, during the year 1991- 1992/maintenance of GCI sheet roofing of West Block/Group No. 1)"
The value of the work was Rs. 14,958/-. Before the date of issuance of work order dated 27.04.1992 the school building in which the maintenance work was supposed to be done was collapsed because of a severe gale and so the maintenance work as per the work order dated 27.04.1992 was not possible, but the defendant No. 3 asked the plaintiff to take up the urgent repair works of the gale damaged building so that the school can run, and the defendant No. 2 wrote a letter to the Director of School Education on 22.06.1993 to that effect and it was mentioned that for such repair etc., an amount of Rs. 1,47,500/- might require. The plaintiff executed the repair works and submitted a bill of Rs. 2,19,085/- on 24.04.1995, but the payment of the bill was not made even after repeated persuasion/representation.
Subsequently another Work Order was issued on 21.03.1994 for re-construction of the school building for an amount of Rs. 1,43,224/- and that work also was awarded to the plaintiff and he executed the work and the bill was also paid. The claim of the plaintiff is that the bill of the maintenance work of gale damage building to the tune of Rs. 2,19,085/- was not paid and, therefore, the plaintiff instituted the suit.
The defendants, inter alia, contended that work order dated 27.04.1992 was issued for the maintenance of the school building in respect of changing of GCI sheet etc., which was ultimately abandoned since before the issuance of that work order itself. The school building was collapsed by severe gale on 17.04.1992. The plaintiff was asked to wait and ultimately a subsequent tender dated 21.03.1994 was issued for re-construction of the school building at a cost of Rs. 1,43,224/- and that work order was also given to the plaintiff and he executed the work, but the standard of the work was not up to the mark for which he was directed to make rectification of the defects and he was fully paid about the works done under that work order. He was not entitled to get any payment for the alleged maintenance work of gale damage and that the suit should be dismissed.
The Trial Court framed four issues, namely:--
"(i) Whether the suit is maintainable in its present form?
(ii) Whether the plaintiff entered into an agreement with the defendant No. 3 for performing gale damage works after the destruction of School building?
(iii) Whether the plaintiff completed the work as per work order and entitled to get the amount of Rs. 2,19,085/- for the works done?
(iv) Whether the plaintiffs entitled to get the amount of Rs. 2,19,085/- or any other relief?"
Both side adduced oral and documentary evidence in course of Trial, which is mentioned in the Judgment of the Trial Court. Ultimately by Judgment and decree dated 19.03.2001 the Trial Court dismissed the suit of the plaintiff and, hence, the plaintiff preferred the Money Appeal No. 32 of 2006 in the Court of District Judge, West Tripura, Agartala and learned Additional District Judge, by impugned Judgment and decree dated 13.11.2009 partly allowed the appeal and directed payment of Rs. 1,50,000/- to the plaintiff with 8% interest thereon w.e.f. 24.04.1995. That Judgment and decree has been put in challenge in this second appeal.
Mr. Bhattacharji, learned counsel, for the appellants submitted that pursuant to the work order dated 27.04.1992 the plaintiff was not required to execute any work since before the issuance of work order the School building was collapsed by severe gale on 17.04.1992. The plaintiff was not at all required to take up any re-construction work of the gale damaged building before the subsequent work order was issued. It is an admitted position, submitted Mr. Bhattacharji, learned counsel, that subsequent work order was issued on 21.03.1994 and the plaintiff executed the work and got the bill for the re-construction work of the building. According to Mr. Bhattacharji, learned counsel, there is nothing to show that after work order dated 27.04.1992 was issued the plaintiff undertook any maintenance work of gale damaged building and thereby became entitled to get an amount from the respondents. The Appellate Court committed serious mistake in considering some aspects of the pleadings and arrived at a wrong finding.
On the other hand, learned senior counsel, Mr. S.M. Chakraborty submitted that after the gale the repair of damaged building became imminent to run the school and, therefore, defendant Nos. 2 and 3 asked the plaintiff to immediately take up the maintenance works of the damaged building pending finalization of re-construction to facilitate running of the school, and to that effect defendant No. 2 wrote a letter to the Director to School Education, copy of which is marked as Exbt-1. Defendant No. 2 clearly mentioned in that letter that some repair works were taken up after the gale damage pending final approval by the competent authority. It is further submitted by Mr. Chakraborty, learned senior counsel of the respondents that the plaintiff since was not paid the bills of the repair works he informed the matter to the Contractor Association. There was a meeting of the Contractor Association with the respondent No. 2 and copy of the minute of the meeting has been proved as one of the item of the Exbt-1 series, wherein it was clearly admitted that the plaintiff executed the maintenance work for which the payment was not made.
Since perversity has been alleged, I have meticulously gone through the pleadings of both sides as well as the evidence adduced by both sides during trial.
I am really shocked to see the evidence recorded during the trial. The appellant examined himself as PW-1 and on behalf of the defendant one Priyabrata Paul was examined as DW-1. The oral evidence of both sides is cryptic and even the description of the exhibited documents has not been mentioned. Learned Trial Judge even did not make correction of the deposition of both the witnesses, whereas he wrote the Judgment presumably reading the evidence. It is expected that a Trial Judge after recording evidence should make correction of the same and the exhibited document should be clearly mentioned so that it can be understood which document is exhibited. The documents of both sides are marked as (Exbt.-1 series), (Exbt.-A series), (Exbt.-B series) etc., but what are those documents that is not mentioned. The parties, as it appears, callously conducted the case and more callously learned Trial Judge recorded the evidence and mechanically passed a Judgment. The learned Additional District Judge while passing the Judgment rightly mentioned that it will serve no purpose in remanding the case back and that it will amount to abuse of the process.
The original work order dated 27.04.1992 was issued for maintenance of the school building and the value of the work was Rs. 14,958/-. Copy of that work order has not been exhibited. But from the very nomenclature of the work it is evident that it was for changing the GCI sheet roofing of the school building. It is an admitted position that before the date of issuance of the work order i.e., 27.04.1992, the entire school building was collapsed by severe gale on 17.04.1992. It is the case of the plaintiff that after the gale damage of the building he was asked to immediately take up some repair works of the gale damaged building to run the school. The learned Appellate Judge in the Judgment mentioned certain part of the pleadings of the defendant in para-7 and 8 wherefrom he culled out the fact that there is admission on the part of the defendants that some repair works were taken up by the plaintiff and the payment for the same could not be made because it was waiting for approval.
I have meticulously gone through the pleadings of the defendants as well as plaintiff. The plaintiff stated that he has done maintenance work of the gale damaged building as per the oral instruction of the defendants to urgently run the school pending final construction was taken up. It is an admitted position that subsequently tender for the re-construction of the building was issued on 21.03.1994, i.e., almost after two years of the gale damage. Letter of defendant No. 2 to the Director of School Education dated 22.06.1993 clearly shows that some works had already been done in anticipation of approval, which was also admitted by defendant No. 2 in the joint meeting of the Contractor Association and defendant No. 2. The plaintiff claimed Rs. 2,19,085/- as the value of the repair works he had done after the gale damage. He has submitted the bill seeking payment and copy of the bill on admission has been marked as an item of Exbt.-1 series, which shows that he claimed Rs. 2,19,085/- for execution of 9 items of works. Neither in the pleadings nor in the evidence the plaintiff made any specific statement as to what was the work he had executed after the gale damage. But it is stated that he has submitted the bill for the works he has done.
In para 7 of the written statement the defendants stated:--
"That in reply to averments made in para 4 of the plaint it is submitted that as the entire building was collapsed during the aforesaid gale occurred on 17.04.1992 well before the date of issuance of the work order dated 27-04-1992 and the classes of the students were hampering, the contractor was asked to execute the work of re-construction of the building just to run the classes."
In para-8 of the written statement the defendants stated:--
"8. That in reply to averments made in Para 5 of the plaint it is submitted that, as there was some delay in setting the administrative approval and expenditure sanction of the competent authority it was not possible to finalize the payment of the above gale damage repair work so far done by the plaintiff-contractor. "
The Appellate Court took a note of the above pleadings of the defendants and taking into consideration the exhibited documents arrived at a finding that plaintiff executed maintenance works after the gale damage and for such maintenance works no payment was made. The learned Appellate Judge taking in account the pleadings and the evidence on record arrived at a finding that the repair works might be valued Rs. 1,50,000/- though there was no specific evidence to that effect, but he has taken into account the amount mentioned in the Exbt.-1 letter and ultimately arrived at a finding of allowing the claim of the plaintiff to that extent of Rs. 1,50,000/-. Mr. Bhattacharji, learned counsel submitted that on surmise the Appellate Court arrived at a finding. The Appellate Court observed that on preponderance of probability the decision has been taken. Taking into account the pleadings and evidence on record I find nothing wrong in such finding of a Court of fact. It appears that the plaintiff has executed some maintenance works after the gale damage of the school building and it is evident that for such maintenance works no payment was made.
Though the plaintiff submitted a bill of Rs. 2,19,085/-, that was not substantiated by evidence and taking into account the letter of defendant No. 2 dated 22.06.1993 (Exbt.-1) the Appellate Court arrived at a finding that the value of the maintenance works shall be around Rs. 1,50,000/- and that finding of the fact as arrived by the learned Additional District Judge cannot be said to be a perverse finding and so I find nothing to interfere in the said finding. The second appeal, therefore, is found to be devoid of any merit and, accordingly, stands dismissed.
Send back the LC records along with a copy of this Judgment.