IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 AS.No. 495 of 2000() ---------------------------- OS.218/1996 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): DEFENDANT ------------------------------------------ R.SATHEESHKUMAR, S/O. OF RAGHAVAN NAIR, AGED 45 YEARS, V.P. 10/471, RAGASARAS, KODUNGANOOR P.O., VATTIYOORKAVU, THIRUVANANTHAPURAM. BY ADV. SRI.L.MOHANAN RESPONDENT(S): PLAINTIFF --------------------------------------------- R.THOMAS SON OF RAMAN, AGED ABOUT 51 YEARS, V.P. 10/509, MANJU NIVAS, KOGUNGANNOOR P.O., THIRUVANANTHAPURAM.13. BY ADV. SRI.R.S.KALKURA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NOS.40/2003 & CMP. 4591/2000 IN AS. 495/2000 DISMISSED 27/09/2010 SD/- M.N.KRISHNAN, JUDGE TRUE COPY P.A. TO JUDGE tss M.N.KRISHNAN, J. ----------------------------------------- A.S. NO. 495 OF 2000 ---------------------------------------- Dated this the 27th day of September, 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Thiruvananthapuram in O.S.No.218 of 1996. The suit is one for realisation of the amount. The brief facts necessary for the disposal of the appeal are stated as follows:- 2. The plaintiff was constructing a house. The defendant was conducting an industry by name Rohini Industries and the plaintiff and defendant entered into an agreement by virtue of which the defendant promised to supply doors, windows and ventilator etc. for a sum of Rs.33,000/-. On the date of the agreement Rs.5,000/- was given and subsequently on two occasions Rs.21,000/- was altogether paid. To the dismay of the plaintiff, the defendant did not supply any materials and, therefore, he was forced to purchase it from outside and complete the construction. Thereafter, the plaintiff has filed this suit for the recovery of the amount for Rs.26,000/- paid by him. 3. On the other hand, the defendant would contend that he had entered into an agreement with the plaintiff. But the A.S. NO. 495 OF 2000 2 contention that articles were not supplied is incorrect. He had supplied the entire articles and another item which was not included in the agreement and the outstanding amount from the plaintiff was Rs.7,000/- which was not paid and, therefore, plaintiff is not entitled to relief. On analysis of the materials the trial court considered and found that the case of the plaintiff is true and granted a decree in favour of plaintiff and rejected counter claim of the defendant. Aggrieved by the decree in the suit the defendant has come up in appeal. 4. Heard the learned counsel for the appellant as well as the respondent. The learned counsel for the appellant strongly points out to me that the evidence of the witnesses namely DWs. 1 to 4 had not been properly analysed by the trial court and it has misdirected itself in arriving at a decision of this nature. On the contra, the learned counsel appearing for the respondent would contend that the court had analysed the case correctly and had given a decision in favour of the plaintiff. Few facts are admitted. The plaintiff and defendant had entered into an agreement and defendant has undertaken to supply doors, windows, and ventilator etc. for a total amount of Rs.33,000/-. When the agreement was entered into on 12.5.1995, an amount of A.S. NO. 495 OF 2000 3 Rs.5,000/- was given and by subsequent endorsement on the back of Ext.A2, it is seen that Rs.21,000/- more has been paid. Now, the definite contention of the plaintiff is that amounts were received for the purchase of wood but the articles were never supplied. The defendant would contend that when he received the amount of Rs.20,000/- on that day he had supplied the materials but supply of any material is not seen endorsed anywhere in Ext.A2. It is proved that defendant is not an ordinary person. He is a person who has contested in the election for the local Panchayat. He is an industrialist and also made it clear that he had received Rs.26,000/-. It is his case that the documents maintained by him would show that he had supplied the materials. But he would say unfortunately all his documents are eaten away by white ants. The story of eating away of the documents by white ants appear to be absolutely incorrect and if really he had supplied materials, he would have produced some documents to prove the same. It is also seen that since the defendant did not supply the materials ordered the plaintiff was forced to purchase the same from a different company and bills are produced to show that it had been purchased. No prudent man will go on purchasing windows and doors if they are A.S. NO. 495 OF 2000 4 already supplied. That is why it is stated that man may lie but circumstances will never lie. So it is only account of lack of supply of the wooden articles, the plaintiff was obliged to purchase it from outside by paying consideration. So non production of any document relating to the supply of articles to the plaintiff couped with the purchase of materials by the plaintiff with the same from dimension from another agency, makes the case of the plaintiff more probable and acceptable. 5. The learned counsel for the appellant strongly contended that evidence of DW2 to 4 have to be looked into by the court in arriving at a decision. As laid down in so many cases it is not the quantity of evidence that has to be looked into but it is the quality of evidence that has to be found out. The intrinsic reliability and inherent probability are the main points to accept or reject the evidence of a witness. The person who is examined as DW2, is none other than a carpenter attached to defendant. He is able to remember only this transaction and he gives a reason that the defendant has told him that the matter will end in a litigation. His evidence has been rightly rejected by the trial court. DWs.3 and 4 are provisional workers. It is only natural that they would have more inclination to support the contractor A.S. NO. 495 OF 2000 5 rather than house owner for the reason that work is totally supplied by contractors and they cannot afford to fight such contractors. Just because number of persons are examined to prove that they have transported it is not sufficient to prove the case. The purchase bill of wood is dated 21.4.1995, where as the contract with the plaintiff is on 12.5.1995. So it cannot be said that the wood is purchased for this purpose. Except the mere interested oral assertion, absolutely no acceptable materials are available in this case to prove the defence. So, the trial court on analysis of the documentary as well as oral evidence, has leaned in favour of plaintiff's case and granted a decree. It does not suffer from any infirmity and therefore appeal fails and same is dismissed without costs. M.N.KRISHNAN, JUDGE. mns