IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 29TH NOVEMBER 2010 / 8TH AGRAHAYANA 1932 AS.No. 384 of 2000() ------------------------- OS.99/1982 of 1ST ADD. SUB COURT, KOZHIKODE .................... APPELLANT(S) IN A.S.PLAINTIFF IN THE SUIT ------------------------------------------------------ P. VISWANATHAN, S/O. RAGHAVAN, RESIDING AT PAYYERI HOUSE, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADVS. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE SRI.A.M.PRATAP SINGH RESPONDENT(S) IN A.S.DEFENDANT IN THE SUIT ---------------------------------------------------------- THE BEYPORE PANCHAYAT, REPRESENTED BY ITS EXECUTIVE OFFICER, THE OFFICE SITUATE AT BEYPORE VILLAGE IN KOZHIKODE TALUK. BY ADV. SRI.T.A.ABDUL LATIF THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 384 OF 2000 = = = = = = = = = = = = = = = Dated this the 29th day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Kozhikode in O.S.99/82. This is an indigent appeal against the said judgment and decree. Now the suit had a very long career and it is the case of the plaintiff that he had been entrusted with the construction of 26 houses in Irattachirakkal, six houses in Kayyazhithodu and six houses in Konoliparamba besides entrustment of repairs and plastering etc. with respect to other houses. 2. In the first decree passed by the trial court a decree was granted for realisation of Rs.68,412/- with 12% interest. Against that decision an appeal was preferred before this A.S. 384 OF 2000 -2- Court and this Court was not satisfied with the materials available and therefore held that it has become necessary to find out how many houses were entrusted with construction, how many houses were constructed, how many houses were entrusted for repairs and how many houses were entrusted for repaired and plastering etc. Thereafter on remand the trial court held that the plaintiff had constructed 24 houses and had effected plastering and repair for Rs.6,300/- and entrustment with the same at the rate of Rs.2,125/- per house and granted the difference but disallowed the question of any house being constructed at Kayyazhithodu. It can be seen from the judgments and the documents produced in this case that houses had been constructed at a place called Vellappali. Now along with the appeal CMP 1552/03 is produced to show that the A.S. 384 OF 2000 -3- Village Officer had certified that the place Vellappali is also known by the name commonly as Kayyazhithodu. So in other words the area which is now shown as Kayyazhithodu is also known by the name Vellappali. Materials are there to show that these houses had been constructed in Vellappali. Now the trial court refused to grant any amount on the ground that materials are not available to show the construction of six houses in Kayyazhithodu. Explaining Kayyazhithodu and Vellappali are one and the same it is desirable that it is also taken into consideration. Therefore I am inclined to hold that the construction of six houses which is described as constructed in Vellappali are the houses constructed in Kayyazhithodu. When it is so the plaintiff will be entitled to get that amount of Rs.2,125/- per house. A.S. 384 OF 2000 -4- 3. Now it has to be stated the amount has to be calculated for 24 + 6 houses, i.e. 30 houses plus the repairing and plastering charges of Rs.6,300/-. When it is for 30 houses at the rate of Rs.2,125/- the construction would come to Rs.63,750/-, then the repair and plastering charges of Rs.6,300/- when added to, it will become Rs.70,050/-. The trial court only deducted Rs.34,000/- as payment made though the Panchayath raised the contention that it has paid Rs.40,192/-. The trial court also found that the total amount covered by the cheques caome to Rs.36,565/- but did not accept Rs.36,565/- on the ground that the said amount takes in all the construction in Antonythodi and Vellappali. Since I have found that Vellappali is also a part and parcel of the entrustment with the construction of the houses we can A.S. 384 OF 2000 -5- safely arrive at a decision that the amount of Rs.36,565/- has been taken as paid. When it is so the balance entitlement would be Rs.33,485/-. For nine months, interest at the rate of 12% when calculated will come to Rs.3,014/- thus enabling the plaintiff to have a decree amount of Rs.36,499/- with interest on the sum of Rs.33,485/- with 12 % interest from the date of suit till the date of payment. Therefore a revised decree is passed as follows. 4. The plaintiff in the suit is granted a decree with proportionate costs directing defendant to pay the plaintiff a sum of Rs.36,499/- with 12% interest on the sum of Rs.33,485/- from the date of suit till the date of payment. The Court fee to be paid by the plaintiff shall be either collected from the decree amount that is available for the A.S. 384 OF 2000 -6- plaintiff or by directing the Panchayat to separately give the amount as a separate cheque for the Court fee. The Registry herein also shall note the amount due as Court fee in this appeal and a direction be given to the trial Court to get the Court fee which is due from the plaintiff at the trial stage as well as in the appellate stage and the balance amount be disbursed to the plaintiff which includes the decree amount plus other costs. M.N. KRISHNAN, JUDGE. ul/- A.S. 384 OF 2000 -7- M.N. KRISHNAN, J. = = = = = = = = = = A.S. No.384 OF 2000 = = = = = = = = = = = J U D G M E N T 29th November, 2010.