R.S.A.No. 1210 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1210 of 2008 (O&M) Date of decision: 9.12.2009 Surjit Singh ......Appellant Versus Sham Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Saurav Bajaj, Advocate for the appellant. Mr.Sanjiv Gupta, Advocate, for the respondent. **** SABINA, J. Plaintiff Sham Lal filed a suit for recovery of Rs.50785/-, which was decreed by the Civil Judge (Jr.Divn.), Kurukshetra vide judgment and decree dated 18.4.2006 . In appeal, the said judgment and decree were upheld by the District Judge, Kurukshetra vide judgment and decree dated 6.9.2007. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the trial Court in para Nos. 1 and 2 of its judgment, are as under:- “ Plaintiff instituted the present suit for recovery of Rs. 50,785/- along with interest and costs on R.S.A.No. 1210 of 2008 (O&M) 2 the averments that he is mason by profession and defendant got constructed his house situated in village Bakali, Tehsil Thanesar, District Kurukshetra from plaintiff and he completed the construction work from 01.12.2002 to 28.09.2003 with the help of some labourers. It is averred that rate of raising the construction up to lintel level was settled at Rs. 33/- per sq. feet of first floor and Rs. 28/- per sq. feet of ground floor fully detailed in para No. 2 of the plaint. It is also averred that after completion of construction work of the house of the defendant by plaintiff, plaintiff has been demanding the due amount from the defendant but defendant had been postponing the matter on one pretext of other, however, the defendant himself had calculated the amount. It is also averred that plaintiff requested the defendant to make him balance amount but the defendant refused to pay anything. Hence, this suit. 2. Defendant filed written statement in which he took preliminary objections regarding estoppel, conceal of facts. On merits, it is pleaded that plaintiff was engaged as a contractor fro construction of house by the defendant and the plaintiff had done the construction work from 25.12.2002 to 5.8.2003 but the same was not completed and was not according to general standard. It is pleaded R.S.A.No. 1210 of 2008 (O&M) 3 that plaintiff was agreed to raise construction of the house in question at the rate of Rs. 28/- per Sq. feet and other details have been given in para mo. 2 of the written statement. After completion of construction work, plaintiff was entitled to get Rs. 1,22,352/- and he had already received a sum of Rs. 1,21,500/- from the defendant and defendant had paid Rs. 3,000/- to the stone grinder. As such the defendant had already paid excess amount to the plaintiff and defendant was entitled to receive back a sum of Rs.2148/- from the plaintiff. It is pleaded that dispute arose between plaintiff and defendant regarding measurement as well as rates initially fixed by mutual consent between parties. It is pleaded that a Panchayat was convened by the plaintiff and measurements were again done in the presence of Panchayat persons and the measurement earlier made by the plaintiff was found wrong and the panchayat persons after being fully satisfied with the measurement slightly increased the rate from Rs. 28/- to Rs. 30/- per Sq. feet, as such Rs. 5322/- were found due to the plaintiff from the defendant and the said amount was also paid by the defendant to plaintiff. The accounts were fully settled with the intervention of the Panchayat. It is also averred that defendant has spent a sum of Rs. 5000/- in getting the work complete by R.S.A.No. 1210 of 2008 (O&M) 4 employing his own labour and the plaintiff had not constructed the floor in accordance with normal standard. It is pleaded that plaintiff is in the habit of taking contrary stand in order to malign and pressurize the defendant. Prayer for dismissal of suit has been made. On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for recovery of suit amount, as alleged? OPP 2. If issue no. 1 is proved, whether the plaintiff is entitled to any interest, if so, at what rate? OPP 3. Whether the plaintiff is estopped by his own act and conduct from filling the present suit?OPI 4. Whether the plaintiff has concealed the true and material facts from the court, if so, its effect? OPD 5. Relief. Learned counsel for the plaintiff has submitted that the report of the Local Commissioner was liable to be believed as the same had been tendered by an independent person. Unless and until the same was objected by raising well founded objections, due weight must be given to the report of the Local Commissioner. In support of his arguments, learned counsel has placed reliance on the decision of this Court in Raja Ram vs. Ram Sarup 1979 PLJ 12. Learned counsel for the respondent, on the other hand, R.S.A.No. 1210 of 2008 (O&M) 5 has submitted that the measurements qua the property in dispute had been written by the defendant in his own hand and consequently, the report of the Local Commissioner stood duly rebutted regarding measurements. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Admittedly, the plaintiff had done construction work regarding the house of the defendant. A dispute arose with regard to the payment, liable to be made by the defendant to the plaintiff. The case of the defendant was that the covered area was 1774.55 sq. feet and the calculation regarding payment was to be made according to the said area. The defendant had already made payment qua the said area. The report of the Local Commissioner regarding the covered area is as under:- 1. Ground floor : 1774.55 sq. feet. 2. First floor : 1086.50 sq. feet. 3. Second floor : 328.99 sq. feet. 4. parda Wall : 908.49 sq. feet. 5. Brick Tiles : 1415.49 sq. feet. 6. Chabutra : 533.25 sq. feet. 7. Plaster on shops including flooring etc. : 515.24 sq. feet. 8. Glazed tiles : 26.45 sq. feet. 9. Construction of wall: 133 sq. feet. 10. Extra floor in front : 107.50 sq.feet of courtyard R.S.A.No. 1210 of 2008 (O&M) 6 Although, the Local Commissioner was appointed in this case, but in the present case, the relevant documents are Ex.P-1 and Ex.P-2. These are the measurements written in the hand of the defendant. Although, defendant has taken the plea that he had written the measurements at the instance of the plaintiff but the said plea does not advance the case of the defendant. The defendant should have written the measurements after his full satisfaction. Once he had noted down the measurements in his own hand he cannot be allowed to back out from the same and hence, the documents Ex.P-1 and Ex. P-2 were rightly relied upon by the Courts below. The report of the Local Commissioner, thus, in the facts and circumstances of the present case, loses its significance and the plaintiff was entitled to claim the construction charges in terms of the documents Ex.P-1 and Ex.P-2. The judgment relied upon by learned counsel for the appellant fails to advance the case of the appellant as the same is on different facts. In these circumstances, the Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE December 9, 2009 anita