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2016 DIGILAW 526 (HP)

Dinesh Singh Thakur v. Prem Gazta

2016-04-21

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. This regular second appeal is directed against the judgment and decree of the learned District Judge, Shimla, H.P., dated 31.12.2003, passed in Civil Appeal No. 69-S/13 of 2001. 2. “Key facts” necessary for the adjudication of this regular second appeal are that the appellant-plaintiff (hereinafter referred to as the plaintiff), has instituted a suit for recovery. The plaintiff is a private contractor. He has undertaken the construction work of the respondent-defendant (hereinafter referred to as the defendant). In the month of March, 1994, he has carried out some construction work of the building of the defendant till the month of August, 1994. He was engaged by the defendant at the instance of one Sh. S.S. Bhurji, architect. According to the plaintiff, at the time of entering into agreement, the defendant had agreed to pay him for the construction work at the rates prescribed by the H.P. PWD with 125% rise as per the cost index. A sum of Rs. 62,965/- was found due to the plaintiff from the defendant. The defendant has paid him Rs.17,000/- only. He also claimed interest @ 18% per annum. 3. The suit was contested by the defendant by filing written statement. He has categorically denied that he had agreed to pay labour charges on PWD rates, as claimed by the plaintiff. The case set up by the defendant was that he agreed merely to pay for the construction work at the rate of Rs. 11/- per square feet for laying slab and at the rate of Rs. 10/- per square feet for the construction of column and beams. He had already paid Rs. 18,500/- to the plaintiff on different occasions. The plaintiff had also taken 20 bags of cement from the defendant for which he had failed to account for. The defendant claimed a sum of Rs. 2640/- against the plaintiff for 20 bags of cement at the rate of Rs. 120/- per bag. Thus, according to the defendant, a total sum of Rs. 21,140/- had already been paid to the plaintiff. 4. The learned Senior Sub Judge, Shimla on 27.10.1998 framed the issues. The suit was dismissed vide judgment dated 26.7.2001. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 26.7.2001. The learned District Judge, Shimla dismissed the same on 31.12.2003. Hence, this regular second appeal. 5. 21,140/- had already been paid to the plaintiff. 4. The learned Senior Sub Judge, Shimla on 27.10.1998 framed the issues. The suit was dismissed vide judgment dated 26.7.2001. The plaintiff, feeling aggrieved, preferred an appeal against the judgment and decree dated 26.7.2001. The learned District Judge, Shimla dismissed the same on 31.12.2003. Hence, this regular second appeal. 5. The regular second appeal was admitted on the following substantial questions of law on 24.8.2005: “1. Whether the Appellate Court below having once referred the parties to the suit to arrive at settlement of accounts, ought to have adopted the provisions of Section 89 CPC especially when the parties to the suit had expressed that the settlement has been arrived at? 2. Whether the judgment on merits could have been passed by the Lower Appellate Court without referring to order passed by earlier presiding officer who resorted to settlement between the parties?” 6. Mr. Hamender Chandel, Advocate, appearing on behalf of the appellant, on the basis of the substantial questions of law framed, has vehemently argued that once the first appellate Court has referred the parties to suit to arrive at settlement, he should have followed the provisions of Section 89 CPC. He also contended that learned first appellate Court below has passed the judgment without referring to the previous orders passed by the learned Presiding Officer. On the other hand, Mr. V.S. Chauhan, Advocate, has supported the judgments and decrees passed by both the courts below. 7. Since both the substantial questions of law are inter-connected, hence are taken up together for discussion to avoid repetition of evidence. 8. I have heard learned counsel for both the sides and have also gone through the judgments and records of the case carefully. 9. The plaintiff has appeared as PW-1. According to him, he was private contractor. The defendant had come to his house and told that he had been sent by Sh. S.S. Bhurji. He requested him to carry out the construction work of his house on a plot situated at B.C.S. Shimla. He was not having complete drawings of the house. Later on, he gave him the drawings of the construction work to be carried out. At that time, the rates were settled as per the HP PWD Schedule of rates allowing 125% rise as per the cost index. He was not having complete drawings of the house. Later on, he gave him the drawings of the construction work to be carried out. At that time, the rates were settled as per the HP PWD Schedule of rates allowing 125% rise as per the cost index. He started the work in the month of March and completed it in the month of August. Thereafter, he raised a bill. On different occasions the defendant had made payments to him in the sum of Rs. 17,000/-. He issued notice to him. The notice was not replied. He also sent copy of bill vide Ext. PW-1/D. 10. PW-2 Madho Ram deposed that the defendant came to the house of the plaintiff when he settled rates of construction work as per HP PWD Schedule of rates allowing 125% rise as per the cost index. He admitted that in his presence, no writing was executed. 11. Defendant has appeared as DW-1. He deposed that he owns a plot at New Shimla. Earlier, he had got the construction work done from one Sukh Dev and later on the same was given to the plaintiff on contract basis. Sh. S.S. Bhurji is the architect. The rates were Rs. 10/- per square feet for column and beams and Rs. 11/- per square feet for slab. The settlement of the rates had taken place in the presence of Sh. S.S. Bhurji. The plaintiff did not complete the entire work. A sum of Rs. 18,500/- was paid to him. The plaintiff has also taken 22 bags of cement from him worth Rs. 2640/-. 12. DW-2 S.S. Bhurji testified that he was an architect. He was working in this capacity since 1965. The building plan of the house of defendant was prepared by him. The construction of his house was carried under his supervision. The rates were also settled in his presence between the parties on the prevalent market rates. At that time, the construction rates were from Rs. 10/- to Rs. 12/- per square feet. On account of dispute between the parties, the final bill could not be prepared. He denied specifically that the rates were settled as per the HP PWD schedule of rates. 13. DW-3 Suresh Kumar testified that he got his house constructed at New Shimla in the year 1993-94 from a contractor hailing from the State of Bihar. On account of dispute between the parties, the final bill could not be prepared. He denied specifically that the rates were settled as per the HP PWD schedule of rates. 13. DW-3 Suresh Kumar testified that he got his house constructed at New Shimla in the year 1993-94 from a contractor hailing from the State of Bihar. At that time, the construction rates were Rs. 11/- per square feet for slab and Rs. 10/- per square feet for column and beams. 14. DW-4 Joginder Singh also deposed that he got his house constructed at New Shimla in the year 1993-94 from a contractor. He had paid the same rates which were paid by DW-3 Suresh Kumar. His house was adjacent to the house of the defendant. 15. The plaintiff has not led any tangible evidence to establish that the parties have actually agreed for the Public Works Department rates. DW-2 S.S. Bhurji, has specifically deposed that he has prepared the complete building plan of the defendant. According to him, the rates of construction work were Rs. 10 to 12/- per square feet. DW-3 Suresh Kumar and DW-4 Joginder Singh have also testified that they have constructed their houses in the same locality in the year 1994 and the rate paid by them were similar as were being paid by the defendant. The plaintiff has not examined any witness that the prevailing market rates in the locality at the relevant time were different from the rates which the defendant has agreed to pay. 16. The first appellate Court has passed the following order on 7.11.2002 : “Both the parties have been heard. As prayed for, let it be relisted on November, 12, 2002, for settlement of account between the parties.” 17. Thereafter, the matter was listed on 6.12.2002 when the following order was passed : “The matter has been listed today for proper order. As prayed for, be it relisted on December 27, 2002 for settlement of account between the parties, in terms of order dated 7.11.2002.” 18. The matter was listed on 27.12.2002 and the following order was passed : “It is stated at the bar that though the accounts have been settled to the satisfaction of both the parties. The respondent has not turned up today. Hence, be it relisted on January 8, 2003 for conciliation. The matter was listed on 27.12.2002 and the following order was passed : “It is stated at the bar that though the accounts have been settled to the satisfaction of both the parties. The respondent has not turned up today. Hence, be it relisted on January 8, 2003 for conciliation. Be it recorded here that the counsel for the appellant has offered to settle the matter subject to payment of Rs. 60,000/- in lump sum.” 19. Thereafter, the order was passed on 8.1.2003. When the case was called out none appeared on behalf of the respondent. The respondent was proceeded against ex-parte and the matter was ordered to be listed for arguments on 21.2.2003. The ex-parte order dated 8.1.2003 was set aside on 8.5.2003 and the matter was ordered to be listed finally on 13.8.2003. It is true that the appellant has offered to settle the matter subject to payment of Rs. 60,000/- and thereafter arguments were heard on 27.12.2003. However, the fact of the matter is that defendant was proceeded ex-parte on 8.1.2003. The ex-parte order was set aside on 8.5.2003. Since the matter could not be settled between the parties, it was heard finally by the learned District Judge. It was not obligatory for the learned District Judge to force the parties to arrive at an amicable settlement, while exercising jurisdiction under Section 89 CPC. 20. The learned Single Judge of the Gauhati High Court in the case of The West Bengal State Electricity Board and others vrs. M/S Shanti Conductors Pvt. Ltd., reported in AIR 2004 Gauhati 70, has held that when the plaintiff has right away rejected the offer and the Court has not made further efforts to help parties in reaching compromise, the Court cannot be considered to have failed in exercise of jurisdiction under Section 89 CPC. It has been held as follows : “16. In other words, if a defendant appears in a suit and others to compromise the claim raised by the plaintiff, one can say that an element of compromise exists; but if the plaintiff, reacting to such offer, right away rejects the offer of compromise and if he wants a decision in the suit on merit, the element of compromise can no longer be said to exist/survive. The present one is one of such cases. The present one is one of such cases. In such a situation, if the Court makes no further efforts to make the parties reach an amicable settlement of their dispute, the Court cannot be said to have failed to exercise its jurisdiction under Section 89. In a situation of this kind, the Court, which is in seisin of the matter, is the best Judge of the matter and even if the revisional Court happens to think that the trial Court should have pursued the offer of compromise, notwithstanding the resistance offered, the revisional Court will be slow to interfere, for, it is trite that if two equally reasonable views are possible, the revisional Court will be slow to substitute its views in place of the views of the trial Court.” 21. Their lordships of the Hon’ble Supreme Court in the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India, reported in AIR 2003 SC 189 , have held that an effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial. It has been held as follows : “10. In certain countries of the world where ADR has been successful to the extent that over 90 per cent of the cases are settled out of court, there is a requirement that the parties to the suit must indicate the form of ADR which they would like to resort to during the pendency of the trial of the suit. If the parties agree to arbitration, then the provisions of the Arbitration and Conciliation Act, 1996 will apply and that case will go outside the stream of the court but resorting to conciliation or judicial settlement or mediation with a view to settle the dispute would not ipso facto take the case outside the judicial system. All that this means is that effort has to be made to bring about an amicable settlement between the parties but if conciliation or mediation or judicial settlement is not possible, despite efforts being made, the case will ultimately go to trial.” 22. In the instant case, the learned District Judge has referred to the previous orders as well. There is no illegality or perversity in the procedure adopted by the learned District Judge. In the instant case, the learned District Judge has referred to the previous orders as well. There is no illegality or perversity in the procedure adopted by the learned District Judge. The substantial questions of law are answered accordingly. 23. Consequently, there is no merit in this appeal and the same is dismissed, so also the pending application (s), if any.