IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 02.11.2010 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.229 of 2008 and M.P.Nos.1 of 2008 & 1 of 2009 A.B.Raghupathy .. Appellant/Appellant/2nd defendant Vs. 1.Mrs.Amsa Gowri .. 1st Respondent/1st Respondent/Plaintiff 2.Union of India, represented by General Manager, Southern Railway, having office at Park Town, Chennai – 600 003. .. 2nd Respondent/2nd respondent first Defendant Prayer : Second Appeal filed under section 100 of CPC against the Judgment and Decree dated 21.09.2006 passed in A.S.No.2 of 2005 on the file of the Principal Sub-Judge, Virudhachalam, confirming the judgment and decree dated 23.06.2004 passed in O.S.No.368 of 2004 on the file of the First Additional District Munsif Court, Virudhachalam. For Appellant : C.Hanumantha Rao For Respondent - 1 : Mr.D.Govinda Reddy For Respondent – 2 : No Appearance JUDGMENT The above Second Appeal arises against the judgment and decree in A.S.No.2 of 2005 on the file of Principal Sub-Court, Virudhachalam, confirming the judgment and decree in O.S.No.368 of 2004 on the file of First Additional District Munsif Court, Virudhachalam. https://hcservices.ecourts.gov.in/hcservices/ 2. The second defendant is the appellant, the first respondent was the plaintiff and the second respondent was the first defendant. 3. The plaintiff filed the suit in O.S.No.368 of 2004 on the file of First Additional District Munsif Court, Virudhachalam to pass a decree and judgement in her favour against the defendants for Rs.75,000/- with subsequent interest at 12% p.a. 4. The brief facts case of the plaintiff in the suit is as follows:- (i) According to the plaintiff, the suit property belongs to her and in view of the Government decision to convert Madras to Trichy Railway line as broad gauge from meter gauge, the first defendant entrusted the work to the second defendant, who is a railway Contractor for laying the Railway line near the suit property. (ii) In pursuance of the work entrusted to the second defendant, by the first defendant, the second defendant's Manager at Virudhachalam dug the red sand from the plaintiff's property and utilised it by laying the Railway line and also for raising the level crossing in the Railway Gate. The second defendant is liable to the plaintiff for his Manager's action and the second defendant is vicariously liable for the servant's account. (iii) The plaintiff has to unload 180 to 200 lorry loads of red sand to bring the property described hereunder to its original level. The plaintiff has to spend more than Rs.1,00,000/- for leveling. However the plaintiff is restricted the claim to Rs.75,000/- and filed the suit to recover the said sum of Rs.75,000/-. 5. The brief case of the first defendant in the suit is as follows: According to the first defendant, the second defendant's Company Ragavendra Constructions is a Contractor for Broad guage conversion earth work to fill the sand to widen the track, but the first defendant never authorised them to dug the soil from the suit property. Hence the first defendant is no way connected with the act of the second defendant and thus the suit is liable to be dismissed. 6. The brief case of the second defendant in the suit is as follows:- According to the second defendant, he was entrusted with the work of dismantling the old meter gauge and linking at Virudhachalam yard between north and south cabin and no sand was required for leveling work. Further due to his ill health, he could not issue any reply notice. The second defendant dug the red sand from the suit https://hcservices.ecourts.gov.in/hcservices/ property. In these circumstances, the second defendant prayed for dismissal of the suit. 7. Before the Trial Court on the side of the plaintiff, four witnesses were examined and 16 documents Exs.A1 to A16 were marked and on the side of the defendants, 2 witnesses were examined and 8 documents Exs.B1 to B8. The Advocate Commissioner's report and plan were marked as Ex.C1 and C2. 8. The Trial Court after taking into consideration the oral and documentary evidence on both sides found that the plaintiff is entitled to recover a sum of Rs.60,000/- with interest at the rate of 12% p.a. from the date of plaint till the date of decree and 6% p.a., from the date of decree till the date of realization. 9. Aggrieved over the judgment and decree of the trial Court, the second defendant preferred appeal in A.S.No.2 of 2005 and the first defendant preferred appeal in A.No.134 of 2005 on the file of Principal Subordinate Court, Virudhachallam. The Lower Appellate Court by its common judgment, allowed the appeal filed by the first defendant dismissed the appeal filed by the second defendant. While dismissing the appeal, the lower appellate Court modified the judgement and decree of the Trial Court by increasing the decree amount from Rs.60,000/- to 75,000/-. 10 Aggrieved over the judgments and decrees of the courts below, the second defendant has filed the above second appeal. 11. Heard Mr.C.Hanumantha Rao, learned counsel appearing for the appellant and Mr.D.Govindareddy learned counsel appearing for the first respondent. No appearance on behalf of the second respondent. 12. The learned counsel for the appellant raised the following substantial question of law in the above Second Appeal:- " The suit is maintainable for non joinder of necessary parties i.e., Ragavendra Construction, who is the party to the contract? " 13. On a careful consideration available on records and the submissions made by both the counsel, it could be seen that the Trial Court after taking into consideration the oral and documentary evidence of both sides, found that the first respondent/plaintiff is entitled to Rs.60,000/-, and passed a decree for the said amount. 14. Aggrieved over the judgment and decree of the Trial Court, the first defendant preferred an appeal in A.No.134 of 2005 and second defendant preferred an appeal A.No.2 of 2005 on the file of Principal Subordinate Court, Virudhachallam. https://hcservices.ecourts.gov.in/hcservices/ 15. The first respondent/plaintiff did not file any appeal as against the judgment and decree of the Trial Court for the disallowed portion of her claim. However, the Lower Appellate Court, on appeal filed by the first defendant found that they are not liable to pay any amount to the first respondent/plaintiff. However, in the appeal filed by the second defendant, the Lower Appellate Court while dismissing the appeal, modified the decree of the Trial Court by increasing the amount from Rs.60,000/- to Rs.75,000/-. 16. It is pertinent to note that the plaintiff/ first respondent did not file any appeal as against the judgment and decree of the Trial Court. In the absence of any appeal or cross objection by the plaintiff, the Lower Appellate Court should not have increased the decree amount fixed by the Trial Court. Therefore, the finding of the Lower Appellate Court that the first respondent / plaintiff is entitled to Rs.75,000/- instead of Rs.60,000/- is liable to be set aside. 17. In so far as the entitlement of the plaintiff, with regard to her claim of Rs.75,000/-, the Trial Court has categorically found that she is entitled to Rs.60,000/- together with interest. The first respondent/plaintiff, by oral and documentary evidence substantiated that she is entitled to Rs.60,000/-, the Trial Court has rightly decreed the suit for a sum of Rs.60,000/- with interest. 18. In these circumstances, the judgment and decree of the Lower Appellate Court enhancing the decree amount from Rs.60,000/- to Rs.75,000/- are set aside and in other aspects, the judgment and decree of the Lower Appellate Court are confirmed. The judgment and decree of the Trial Court are confirmed. The plaintiff/first respondent is entitled only for a sum of Rs.60,000/- with interest at the rate of 12% p.a from the date of plaint till the date of decree and 6% from the date of plaint till the date of realisation on the principle sum of Rs.60,000/- as decreed by the trial Court. With these modifications, the Second Appeal is partly allowed. Consequently connected the Miscellaneous petitions are also closed. No costs. Sd/ Asst. Registrar /True Copy/ Sub Asst.Registrar Adl https://hcservices.ecourts.gov.in/hcservices/ 1 THE PRINCIPAL SUBORDINATE JUDGE, VRIDHACHALAM 2 THE IST ADDITIONAL DISTRICT MUNSIF, VRIDHACHALAM. + 1 cc To Mr.D.Govinda Reddy, Advocate, SR.79621 Second Appeal No.229 of 2008 and M.P.Nos.1 of 2008 & 1 of 2009 MS(CO) RR 14/12/2010 https://hcservices.ecourts.gov.in/hcservices/