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2012 DIGILAW 197 (KAR)

A. M. Krishnegowda v. State of Karnataka

2012-03-02

K.GOVINDARAJULU, K.L.MANJUNATH

body2012
JUDGMENT K.L. Manjunath, J.”The appellant being not satisfied with the Judgment and decree dated 30.3.2009, passed by the Civil Judge, (Sr. Dn), K.R. Pet in O.S. No. 166/2006 has filed this appeal. According to the petitioner/plaintiff, he is a Class-III Contractor and he was entrusted the construction work of Left Bank of Kattekyathanahalli Bridge approach road and that construction of the Right Bank of Kettekyathanahalli Bridge approach road was entrusted to another contractor by name Boraiah Basavaiah, Since Boraiah Basavaiah could not execute the work, the plaintiff completed the work of Left Bank approach road in his individual capacity and Right Bank approach road as a power of attorney holder of Basavaiah. According to him, though the final bill was submitted, the defendants failed to settle the dues. Therefore, he filed the suit for recovery of a sum of Rs. 3,52,977-72ps. 2. The defendants contested the suit. According to the defendants, the entire work of approach road of Right Bank and Left Bank was entrusted to one Basavaiah and the plaintiff has executed the work as power of attorney holder and that the entire amount has been settled, except a sum of Rs. 23,773/-. Therefore, the plaintiff requested the court to dismiss the suit. 3. Based on the above pleadings, the following issues were framed by the court below:-- 1) Whether the plaintiff proves that, he is entitled to recover suit claim as per agreement from the defendants? 2) Whether the defendants prove that, the plaintiff is entitled to claim only an amount of Rs. 23,773/-? 3) Whether the plaintiff is entitled to claim interest at the rate of 21% from the date of execution of the work? 4) Whether the plaintiff is entitled for the relief sought for? 5) What order or decree? 4. The plaintiff in order to prove his case has examined himself as P.W. 1. He relied upon Ex. P. 1 to Ex. P28. No evidence was let-in by the defendants. The Trial Court held issues 1 and 3 in negative, issue No. 2 in affirmative and issue No. 4 in partly affirmative and decreed the suit of the plaintiff for a sum of Rs. 23,773/-. This judgment and decree is called in question in this appeal. 5. We have heard the learned counsel for the parties. 6. According to Mr. The Trial Court held issues 1 and 3 in negative, issue No. 2 in affirmative and issue No. 4 in partly affirmative and decreed the suit of the plaintiff for a sum of Rs. 23,773/-. This judgment and decree is called in question in this appeal. 5. We have heard the learned counsel for the parties. 6. According to Mr. Y.K. Narayana Sharma, learned counsel for the appellant, the appellant has completed the work of left Bank of approach road in his individual capacity and based on the power of attorney executed by Basavaiah. He has completed the work of Right Bank of the approach road. Therefore, he contends that the trial court has committed an error in not considering the evidence let-in by the parties. In the circumstances, he requests the court to set aside the impugned judgment and decree and decree the suit for balance amount. 7. Learned Government Pleader submits that when the Government has not entrusted any work to the appellant in his individual capacity, as the appellant has executed the work as power of attorney holder of Basavaiah, the Government has settled the bills payable to Basavaiah, except a sum of Rs. 23,773/- and that the suit is filed on the ground that the original measurement is not available with the defendant. In the circumstances, he requests the Court to dismiss the appeal. 8. Having heard the learned counsel for the parties, we have to consider the following points in this appeal; 1) Whether the appellant has proved that the work was entrusted to him by 5th defendant for construction of the left bank of Kattekyathanahalli Bridge approach road and that Right Bank approach road was entrusted to Basavaiah and that he executed both the work? 2) Whether the appellant is for recovery of the balance amount? 9. So far as point No. 1 is concerned, no material is placed before the court below to show that Basavaiah was entrusted with the construction of Right Bank approach road of Kattekyathanahalli Bridge and similarly, the plaintiff has also not placed any material to show that piece work was given to him for the construction of Left Bank of approach road of Kattekyathanahalli Bridge. It is the case of the defendants that no work was entrusted to the plaintiff in his individual capacity and he has executed the work as power of attorney holder of Basavaiah and the entire amount has been settled except a sum of Rs. 23,773/- as agreed upon in the written statement. If the plaintiff had produced the documents to show that there were two separate contracts, one in his favour and another in favour of Basavaiah and that he executed both the work as power of attorney holder of Basavaiah and also in his individual capacity, both would have been in a position to appreciate the case of the plaintiff. But in the absence of such material, it is not possible for any court to accept the contention of the appellant/plaintiff. 10. The appellant is seeking to rely upon the document said to have been in possession of the defendants, but the defendants submit that the original M.B. book and other records pertaining to this work is not available. If such documents are not available with the defendants, no court can compel the defendants to produce such documents. In the circumstances, it is for the plaintiff to prove his case. Hence, we are of the opinion that the Trial Court has not considered the point as to whether the approach road of Left Bank and Right Bank of Kattekyathanahalli Bridge was entrusted under two different documents. Therefore, we have to set aside the judgment and decree of the trial court and remand the matter to the Trial court to enable the plaintiff to produce the documents to show that work in respect of Left Bank approach road was executed by him in his individual capacity and Right Bank approach road as a power of attorney holder of Basavaiah. 11. In the circumstances, the appeal is allowed. The judgment and decree dated 30.3.2009, passed by the Civil Judge; (Sr. Dn), K.R. Pet in O.S. No. 166/2006 is hereby set aside only with regard to balance claim of the plaintiff. The trial Court is directed to dispose of the suit by giving an opportunity to both the parties within a period of six months from today. Both the parties shall appear before the court below on 9th April 2012. Dn), K.R. Pet in O.S. No. 166/2006 is hereby set aside only with regard to balance claim of the plaintiff. The trial Court is directed to dispose of the suit by giving an opportunity to both the parties within a period of six months from today. Both the parties shall appear before the court below on 9th April 2012. In view of the matter being remanded, the appellant is entitled for refund of Court fee under Section 64 of the Karnataka Court Fees and Suits Valuation Act.