R.S.A.No. 1191 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1191 of 2011 (O&M) Date of decision: 22.3.2011 Anuj Kumar ......Appellant Versus Ujjagar Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.G.C.Shahpuri, Advocate, for the appellant. **** SABINA, J. Plaintiff had filed a suit for rendition of accounts and permanent injunction alleging that the defendant had been engaged as a contractor for raising construction of his house. However, due to certain delays by the contractor, plaintiff had suffered loss. The defendant was threatening that he would not allow any other person to work in the premises. Defendant in his written statement averred that he was an experienced mason and has done construction work in different houses belonging to the Haryana Development Urban Authority. The work of construction of the house of the plaintiff was entrusted to the defendant. The agreement in this regard was reduced into writing on R.S.A.No. 1191 of 2011 (O&M) 2 17.10.2002. Rates qua construction were agreed between the parties. ` 39,500/- were paid by the plaintiff to the defendant. It was denied that the plaintiff had paid ` 94,000/- to the defendant or that he had paid ` 20,000/- to 25,000/- more than the work done. In fact, the plaintiff had not paid the amount due to the defendant. The plaintiff himself had obstructed further work to be carried out by the defendant deliberately just to harass and harm him. In fact the entire work had been completed by the defendant and only minor work remained to be completed. Along with the written statement, defendant also filed a counter claim seeking a mandatory injunction directing the plaintiff to make the payment of outstanding amount of ` 49,598/- which had been withheld by the plaintiff illegally. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff has retained the payment of balance amount due to the tune of ` 49,598/- as alleged, is fo to what effect? OPD. 2. Whether defendant is entitled for mandatory injunction as prayed for? OPD 3. Relief.” During the pendency of the suit, plaintiff withdrew his suit on 5.3.2009 and vide judgment and decree dated 9.11.2009, Civil Judge (Jr.Divn.) dismissed the counter claim filed by the defendant. Aggrieved by the said judgment and decree, defendant preferred an appeal and vide judgment and decree dated 16.11.2010, Additional District Judge allowed the appeal and consequently, the counter R.S.A.No. 1191 of 2011 (O&M) 3 claim filed by the defendant was decreed. Hence, the present appeal by the plaintiff. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves dismissal. In the present case, the fact that the defendant had been engaged by the plaintiff to raise construction of his house is not in dispute. The case of the plaintiff was that the defendant had failed to complete the work entrusted to him although more amount had been paid to the defendant, whereas, the case of the defendant was that ` 49,598/- were still outstanding against the plaintiff. The defendant in order to establish his case has placed reliance on Ex.D-1 and Ex.D-2. Vide Ex.D-1, it was agreed between the parties that qua basement the settled labour rate was @ ` 49/- per square feet, whereas, regarding the first floor, the labour rate was agreed at ` 30/- per square feet. A perusal of Ex.D-1, shown during the course of arguments, reveals that payment of ` 39,500/- was made to the defendant by the father of the plaintiff. The said document is dated 17.10.2002 and is signed by the father of the plaintiff. The plaintiff, on the other hand, had failed to establish that the document Ex.D-1 was not signed by his father. Thus, from Ex.D-1 it is evident that the rates qua construction had been duly agreed between the parties and an amount of ` 39,500/- had been paid to the defendant. Ex.D-2 is the document wherein, the defendant had maintained the accounts qua the work done by him. Learned Additional District Judge, after appreciating the evidence led by the parties on record, R.S.A.No. 1191 of 2011 (O&M) 4 has given a finding of fact that the defendant had completed the work allotted to him as per Ex.D-2 and an amount of ` 49,598/- was still outstanding against the plaintiff. The plaintiff had proved on record reports of two surveyors but the said reports could not be relied upon as the same had been prepared in the absence of the contractor. Thus, the plaintiff had failed to rebut the evidence led by the defendant qua the work done by him. In these circumstances, the counter claim filed by the plaintiff was liable to be decreed. No substantial question of law arises in this regular second appeal, which would warrant interference by this Court. Accordingly, the same is dismissed. (SABINA) JUDGE March 22, 2011 anita