IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST APRIL 2009 / 11TH CHAITHRA 1931 AS.No. 341 of 1995(D) -------------------- OS.328/1993 of PRL.S.C.,THALASSERY .................... APPELLANT/PLAINTIFF: ------------------------- AJAY SREEDHARAN, S/O.A.M.SREEDHARAN, AGED 25 YEARS, PROPRIETOR CORA TECHNOLOGY CENTRE FOR LOW COST BUILDINGS, RESIDING AT MANIKYAMANGALAM HOUSE, KAITHAPRAM AMSOM ARYUM DESOM, KANNUR. BY ADV. SRI.M.RAMESH CHANDER,M.S.MANIKANDHAN SRI.V.RAMKUMAR RESPONDENT/DEFENDANT: ------------------------------ ALAT SUDHAKARAN, S/O.KRISHNAN AGED 42, LIC CLERK, RESIDING IN HOUSE NO.6(A), WARD NO.II, EDAKKAD PANCHAYATH KANNUR. ADV. SRI.T.A.RAMADASAN SIBY THOMAS THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 01/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ A.S.NO.341 OF 1995 ------------------------------------------ Dated 1st April 2009 JUDGMENT Plaintiff in O.S.328/1993 on the file of Sub court, Thalassery is challenging the judgment dismissing the suit. Respondent is the defendant. Appellant instituted the suit for realisation of Rs.21,500/- being the balance amount due for construction of the house under Ext.A1 agreement and Rs.12,280/- towards the additional work carried out over and above the work provided under Ext.A1. Admittedly, appellant under Ext.A1 agreement undertook to construct a low cost residential building with bricks in the property belonging to the respondent in R.S.No.20/6. According to the appellant as provided under Ext.A1, he had completed the work and handed over the key to the respondent on 15/2/1993 and as per the agreement respondent has to pay Rs.1,67,600/- but respondent paid only Rs.1,46,000/- and he is entitled to get the balance of Rs.21,500/-. It was also contended that in addition to the work provided under AS 341/95 2 Ext.A1, as instructed by the respondent appellant carried out additional work of construction of parapet wall and on that account he is entitled to get Rs.12,280/- more. With these allegations suit was filed. Respondent resisted the suit admitting Ext.A1 agreement and contending that respondent had paid Rs.1,53,000/- as per the terms of the agreement. But as provided under Ext.A1, appellant did not complete the work. It was contended that as the appellant failed to fulfill the terms of agreement, respondent was compelled to occupy the house out of dire necessity on 22/5/1993, one week prior to the re-opening of the school for enabling his children to attend the classes and as appellant did not complete the work he is not entitled to the amount claimed. It was also contended that appellant did not do carry out any additional work and therefore he is not entitled to any amount. 2. Learned Sub Judge framed necessary issues. On the side of the appellant he was examined as PW1 and Exts.A1 to A4 were marked. On the side of respondent he was examined as DW1 and two witnesses were examined as Dws.2 and 3. Learned Sub Judge on AS 341/95 3 the evidence found that it is clear from the evidence that appellant has not completed the work as provided under Ex.A1 agreement and respondent has filed a petition before the Consumer Redressal Forum for Rs.1,23,000/- and it was pending. It was also found that though appellant is entitled to get payment for the work done, he did not take out a commission to assess the quantum of work done or the cost of the work to prove that balance is payable or to establish that any additional work was executed. Therefore, suit was dismissed. It is challenged in this appeal. 3. Learned counsel appearing for appellant and respondent were heard. 4. Learned counsel appearing for appellant argued that court below did not properly appreciate the evidence and as the appellant had executed the work, as provided under Ext.A1 and also executed additional work he is entitled for payment for the work and even though no commission was taken out in the suit, on the evidence of appellant court below should have granted a decree for realisation of the balance amount due provided under Ext.A1. 5. The only point for consideration is AS 341/95 4 whether there is any evidence to prove that appellant had executed any additional work than what is provided under Ext.A1 and whether appellant was paid for the work executed and whether any balance is due. 6. According to the appellant he had completed the work as provided under Ext.A1. According to respondent appellant did not complete the work and he had already paid for the work executed as provided under Ext.A1. As rightly found by the court below in such circumstances, appellant should have taken out a commission to assess the work done by him on the date of institution of the suit and the amount due to him for the construction. When dispute is whether appellant executed the work as provided under Ext.A1 and whether he had executed additional work it is for the appellant to prove both the facts. Apart from the ipso dixit of appellant which was controverted by respondent there is no evidence to prove the quantum of work executed or the amount due for the work executed. In the absence of that evidence when there is no material to prove that appellant had completed the work or carried out extra work or that respondent has not paid the entire amount due for the work AS 341/95 5 executed, appellant cannot claim a decree. In such circumstances, learned Sub Judge was perfectly justified in dismissing the suit. I find no reason to interfere with the judgment. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. AS 341/95 6 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT A.S.341 OF 1995 1st April 2009 ============================