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2025 DIGILAW 1223 (KER)

Mariyam W/o Francis v. V. P. Devassy S/o Pailoth

2025-05-19

A.BADHARUDEEN

body2025
JUDGMENT : 1. This regular first appeal filed under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure is at the instance of the defendant in O.S.No.435/2001 on the files of the Principal Subordinate Judge’s Court, Irinjalakkuda, assailing the verdict dated 31.07.2004. The respondent herein is the sole plaintiff in the suit. 2. Heard the learned counsel for the appellant/defendant and the learned counsel appearing for the respondent/plaintiff. 3. I shall refer the parties in this appeal with reference to their status before the trial court, hereinafter for easy reference. 4. Plaint averments in brief: Claiming an amount of Rs.4,01,342/- along with interest at the rate of 12%, the plaintiff approached the trial court contending that as per Ext.A1 agreement dated 22.12.2000 the defendant was entrusted to construct a two storied building in the plaint schedule property, which was owned by the defendant on the date of execution of Ext.A1 agreement. According to the plaintiff, the construction was agreed to be completed within a period of 12 months from the date of agreement and the property was given in possession of the plaintiff to do the construction on the date of the agreement itself. The plaintiff’s case is that, it was agreed to pay the amount at the rate of Rs.488 per sq.ft. and the work done would come to 3021 sq.ft. Accordingly, the amount entitled by the plaintiff would come to Rs.14,74,248/-. Further, it was agreed that if any additional work was done by him, the expenses for the same would be paid separately. Thus, including the additional work done, the total amount would come to Rs.16,26,342/-. After adjusting Rs.12,25,000/- already paid in this count, the plaintiff claimed the suit amount. 5. The defendant entered appearance and filed written statement contending that the agreement was entered for the purpose of construction a house for the benefit of the son of the defendant. During the course of construction, it was noticed that the construction of the building by the plaintiff was not satisfactory. The plaintiff had not employed the skilled workers and the plastering work was not properly done and the concrete was not on the same level. The plaintiff had purposefully violated the terms of the contract. The contention that the plaintiff had completed the work as per contract was disputed. The plaintiff had not employed the skilled workers and the plastering work was not properly done and the concrete was not on the same level. The plaintiff had purposefully violated the terms of the contract. The contention that the plaintiff had completed the work as per contract was disputed. The further contention that the plaintiff had constructed the compound wall, protection wall, gate etc. as additional work also was denied and the contention was that the said works were done by the son of the defendant. The further contention that the plaintiff used extra quantity of cement for which plaintiff was entitled for extra amount also not correct. Further, there was a dispute between the plaintiff and defendant about the concrete mixing. The materials for concreting the floor were purchased by the defendant. The sanitary items and electrical items were purchased by the son of the defendant. The contention that the materials for the plumping work were purchased by him by paying amount directly to I.C.Sanitary wears also incorrect. Thus the defendant would not get any amount as alleged. Whereas the plaintiff had to pay Rs.2,60,000/- to the son of the defendant, borrowed on 27.03.2001 or 28.03.2001, for facilitating to deposit the same in a a service co-operative bank towards the deposit collection scheme. 6. Thereafter the plaint was amended and additional written statement also was filed. 7. The trial court raised necessary issues and tried the matter. PW1 to PW4 examined and Exts.A1 to A6 marked. DW1 to DW3 examined and Exts.B1 to B12 marked. Exts.C1 to C3 also marked. 8. Thereafter the trial court found that the total amount due to the plaintiff would come to Rs.2,79,367/- and also found that Rs.15,000/- is entitled by the defendant as compensation for the discrepancies in the work done as reported by the commissioner. Thereafter, after deducting Rs.15,000 from Rs.2,79,367 which would come to Rs.2,64,367 rounded to Rs.2,65,000/- along with 6% interest was granted as per the verdict impugned. 9. The main challenge raised in the appeal memorandum is that the trial court went wrong in admitting Exts.A4(a) to A4(g) receipts and also the trial court went wrong in holding that the work was completed by the end of April, 2001. Further, the trial court went wrong in granting Rs.15,000/- alone as compensation for the discrepancies in the work executed by the plaintiff. Further, the trial court went wrong in granting Rs.15,000/- alone as compensation for the discrepancies in the work executed by the plaintiff. The learned counsel for the defendant pointed out these aspects while assailing the verdict of the trial court. 10. It is argued by the learned counsel for the plaintiff that in this matter execution of Ext.A1 agreement is not disputed. But the contention in the written statement is that no amount is due from the defendant to the plaintiff, whereas the plaintiff had to pay a huge amount to the son of the defendant since he had received Rs.2,60,000/- on 27.03.2001 or on 28.03.2001 for facilitating deposit of the same in the service co-operative bank towards the deposit collection scheme. But the said contention was not at all proved. It is admitted by both sides that the amount paid was Rs.12,25,000/-. Accordingly, it is submitted that the trial court calculated the amount as per Ext.A1 agreement and granted decree and the same does not require any interference. 11. Having addressed the rival contentions, the points arise for consideration are: 1. Whether the finding of the trial court to the effect that the plaintiff is entitled to get Rs.2,65,000/- from the defendant is erroneous? 2. Whether the trial court wrongly assessed the compensation entitled by the defendant to the tune of Rs.15,000/-? 3. Whether the trial court went wrong in admitting Exts.A4(a) to A4(g) documents in evidence, ignoring its inadmissibility? 4. Whether the decree and judgment would require interference? 5. Reliefs and costs? 12. Point No.3: In this matter, it is noticed that Exts.A4(a) to A4(g) were marked in evidence by tendering the same through PW1, without any objection, because no objection seen raised by the learned counsel for the defendant at the time of tendering and marking of the above documents. If a party fails to object marking of document/s on the ground of its inadmissibility, at the time of tendering and marking the same, the party could not contend its inadmissibility at the appellate stage since the said party’s failure to object at the time of marking is considered as waiver of the right to object later. Now the contention of the defendant is that Ext.A4(a) to Exts.A4(g) are photocopies of the documents and hence inadmissible. Now the contention of the defendant is that Ext.A4(a) to Exts.A4(g) are photocopies of the documents and hence inadmissible. In this connection, it is relevant to refer the decision of the Apex Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and Another, KLT Online 2004 (1) 1227 SC : (2003) 8 SCC 752 with reference to paragraph Nos.19 to 23 which read as under: “19. Order 13 Rule 4 of the CPC provides for every document admitted in evidence in the suit being endorsed by or on behalf of the Court, which endorsement signed or initialed by the Judge amounts to admission of the document in evidence. An objection to the admissibility of the document should be raised before such endorsement is made and the Court is obliged to form its opinion on the question of admissibility and express the same on which opinion would depend me document being endorsed as admitted or not admitted in evidence. In the latter case, the document may be returned by the Court to the person from whose custody it was produced. 20. The learned counsel for the defendant-respondent has relied on The Roman Catholic Mission v. The State of Madras and Anr. MANU/SC/0253/1966 : (1966) 3 SCR 283 in support of his submission that a document not admissible in evidence, though-brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the first case, merely because a document has been marked as 'an exhibit', an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the made of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons; firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court. 21. Privy Council in Padman and Ors. v. Hanwanta and Ors. MANU/PR/0104/1915 : (1915) 17 Bom. In the first case, acquiescence would be no bar to raising the objection in superior Court. 21. Privy Council in Padman and Ors. v. Hanwanta and Ors. MANU/PR/0104/1915 : (1915) 17 Bom. L.R. 609 did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed: "The defendants have now appeal to the Majesty in Council and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention." 22. Similar is the view expressed by this Court in P.C. Purushothama Reddiar v. S. Perumal, MANU/SC/0454/1971 : (1972) 2 SCR 646 . In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed: "Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent. He contended that the police reports referred to earlier are inadmissible in evidence as the Head- constables who covered those meetings have not been examined in the case. Those reports were marked, without any objection. Hence it is not open to the respondent now to object to their admissibility [See Bhagat Ram v. Khetu Ram and Anr. MANU/PR/0128/1929 : AIR 1929 PC 110 ]." 23. Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.” Therefore, the contention of the defendant that the trial court went wrong in admitting Exts.A4(a) to A4(g) in evidence is unsustainable and the same is repelled. 13. Points Nos. 13. Points Nos. 1, 4, 5 and 6: Here, execution of Ext.A1 agreement for constructing a two storied building in the plaint schedule property owned by the defendant at the time of its execution within a period of 12 months from the date of the agreement at the rate of Rs.488 per sq.ft. is not disputed. But the defendant raised contention that work was not properly carried out and also additional work was not carried out by the plaintiff, instead the same was carried out by the defendant’s son. In fact, the work done is estimated as 3021 sq.ft. Thus, the trial court worked out the amount at Rs.14,74,248/- (488 x 3021). The trial court relied on the evidence given by both parties to find that Rs.22,364/- was liable to be deducted since the plaintiff did not provide sintex doors to the bathrooms and handrails to the staircase. Accordingly, the balance amount was Rs.14,52,884/-. After adjusting the amount paid in advance to the said sum, the trial court calculated the balance at the rate of Rs.2,27,884/-. Even though the claim of the plaintiff for the additional work is higher than Rs.51,483/-, based on the evidence, the trial court found that the amount so entitled is Rs.51,483/-, relying on Ext. A4(g) receipt, showing the said expense in this regard. But the trial court in fact considered the rival contentions. The trial court also found that the defendant was entitled to get compensation to the tune of Rs.15,000/- for some defects in the work, where the said compensation is not at all quantified. Accordingly, the amount entitled by the plaintiff is arrived at Rs.2,64,337/- which is rounded to Rs.2,65,000/-. 14. In this matter, even though the defendant raised the contention that the work was not finished during the month of April, 2001, during cross-examination, the defendant/DW1 admitted that the housewarming was on 20.05.2001. Therefore, the trial court rightly found that the work was completed before the housewarming on 20.05.2001, i.e. during the month of April, 2001. Going by the manner in which the trial court addressed the rival contentions and arrived at the amount entitled by the plaintiff and the compensation entitled by the defendant, nothing wrong done by the trial court, rather no illegality or impropriety could be gathered so as to have interference in the verdict under challenge. Therefore, the verdict impugned does not require any interference. 15. Therefore, the verdict impugned does not require any interference. 15. Accordingly, this appeal stands dismissed. There is no reason to disallow proportionate cost to the plaintiff. Hence proportionate cost is granted to the plaintiff throughout the proceedings to be realised from proceeding against the plaint schedule property. 16. All interlocutory orders stand vacated and all interlocutory applications pending in this regular first appeal stand dismissed. 17. Registry is directed to forward a copy of this judgment to the jurisdictional court forthwith.