HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.25 OF 2011 JUDGMENT: This Second Appeal, under Section 100 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the judgment and decree, dated 22.09.2010, in A.S.No.187 of 2006, on the file of I Additional District Judge, Visakhapatnam, whereunder and whereby, the decree and judgment, dated 23.03.2006, in O.S.No.131 of 2001, on the file of I Additional Senior Civil Judge, Visakhapatnam, dismissing the Original Suit filed by the appellant/plaintiff against the respondents/defendants for recovery of a sum of Rs.2,00,000/- towards the cost of construction of building, with interest at 24% per annum and also direct defendant Nos.2 and 3 to deposit the rents into the Court, were confirmed. 2. The appellant herein is the plaintiff and the respondents herein are the defendants in the suit. For better appreciation of facts, the parties hereinafter are referred to as they are arrayed in the trial Court. 3. The brief facts that are necessary for disposal of the present appeal may be stated as follows: Plaintiff is a Civil contractor and builder. He entered into an agreement, dated 14.08.1998, with defendant No.1 for demolition of the existing building and construction of new building in the site at Sector VI, MVP Colony, Visakhapatnam for a total consideration of Rs.5,00,000/- to be paid in instalments. The plaintiff completed the construction of the building as per the approved municipal plan and also made additional construction as per the taste of defendant No.1 by laying marble instead of NITCO Tiles, and also the area of construction is 1800 sft instead of 1320 sft. Thus the plaintiff spent Rs.1,00,000/- more towards difference of cost for laying the marble flooring and also difference in construction of extra square feet. After completion of the construction of building it was handed over to defendant No.1. Thereafter, ground floor of the building was leased out to defendant No.2 and first floor was leased out to defendant No.3 on rents. Defendant No.1 paid Rs.4,00,000/- to the plaintiff towards cost of the above constructions including the additional constructions instead of agreed amount of Rs.5,00,000/- and Rs.1,00,000/- incurred towards additional cost of construction, and thus the defendant is liable to pay balance of amount of Rs.2,00,000/- to the plaintiff. Defendant No.1 issued cheque, dated 31.05.1997, for Rs.20,000/- and that was dishonoured and it includes the above balance amount of Rs.2,00,000/- payable to the plaintiff. The cause of action for the suit arose on 14.08.1998 when the agreement was entered into between the plaintiff and defendant No.1 at Visakhapatnam for construction of the building and it subsists on various dates referred to supra and the trial Court has jurisdiction. Hence, the suit. 4. Defendant No.1 filed written statement, denying the allegations made by the plaintiff in the plaint and contending that the plaintiff did not complete the construction work of the building and on the other hand the building was handed over with incomplete work and unfinished construction beyond the stipulated period. The plaintiff has to dismantle the old building structure and remove the garbage, but he failed to do so. He has to provide building plan drawings and elevator drawings with details of material assessment, but he failed to do so. This defendant got it done by spending Rs.10,000/-. The plaintiff failed to provide the plinth beam in the foundation, which causes the building weak and imminent danger to the building. The plaintiff also failed to provide good teak wood doors costing Rs.10,000/- each but he provided the teak of cheap quality of wood. The plaintiff has to hand over the finished building within three or four months, but he handed over the unfinished building after 12 months in August, 1999. The plaintiff failed to construct compound wall and main gate with lining arrangement and overhead tank. The elevation of the building was spoiled. The plaintiff also failed to provide concealed copper wire for electrification. The western column was wrongly raised and there was no proper curing of the construction work and that the entire construction work was not in accordance with the specifications and plan. Further the plaintiff failed to supervise the construction work as per the agreement, dated 14.08.1998, and caused mental agony to this defendant. Defendant No.1 altogether paid Rs.4,38,000/- to the plaintiff between 20.08.1998 to 12.07.1999 and also paid Rs.45,312/- for fixing of marble, electricity ramp, gate dismantling advance and hand loan. Further defendant No.1 incurred Rs.91,312/- for completing the unfinished work of plaintiff in respect of the building and also lost rents of seven months and also incurred personal expenses for her stay at Visakhapatnam due to delay in the construction work by the plaintiff. As such, in any view of the matter, defendant No.1 is not liable to pay any amount to the plaintiff much less the suit claim. 5. Defendant No.1 filed additional written statement and further contended that consumer forum awarded compensation of Rs.2,00,000/- to her Consumer Dispute vide C.D.No.787 of 2001 towards the bad performance of the construction of the building by the plaintiff, against which the plaintiff filed appeal before the State Commission and the State Commission initially directed the plaintiff to deposit Rs.25,000/- and that the quantum of compensation claimed by plaintiff is only self calculation and it is baseless. 6. Defendant Nos.2 and 3 remained ex parte. 7. Basing on the above pleadings, the following issues are framed for trial: “ 1. Whether the plaintiff is entitled for the suit amount? 2. To what relief?” An additional issue was framed on 14.07.2004 in the trial court, which is as under: Whether the construction agreement, dated 14.08.1998, is valid and the suit is maintainable basing on this agreement? 8. During trial, PWs.1 to 4 were examined and Exs.A1 to A5 and Ex.X1 were got marked, on behalf of the plaintiff and on behalf of defendant No.1, no witnesses were examined, but Ex.B1 was marked. 9. The trial Court after considering the evidence on record came to the conclusion that the plaintiff has failed to prove the suit claim and hence the plaintiff is not entitled to the suit claim and accordingly, dismissed the Original Suit. On appeal, the appellate Court dismissed the appeal confirming the said judgment and decree. Challenging the same, the present Second Appeal is filed by the plaintiff. 10. Now it has to be seen whether the findings of both the courts below are perverse or not and whether the findings are based upon proper appreciation of evidence on record or not? 11. There cannot be any dispute that, under the amended Section100 C.P.C., a party aggrieved by the decree passed by the first appellate court has no absolute right of appeal. He can neither challenge the decree n a question of fact or on a question of law. The second appeal lies only where the High Court is satisfied that the case involves a substantial question of law. The word ‘substantial’ as qualifying ‘question of law’, means and conveys – of having substance, essential, real, of sound worth, important, considerable, fairly arguable, in contradiction with-technical, formal, or no substance, no consequence or academic only. A substantial question of law should directly and substantially affect the rights of the parties. A question of law can be said to be substantial between the parties if the decision in appeal turns one way or the other on the particular view of law. But, if the question does not affect the decision, it cannot be said to be substantial question between the parties. Recording a finding without any evidence on record; disregard or non-consideration of relevant or admissible evidence; taking into consideration irrelevant or inadmissible evidence; perverse finding are some of the questions, which involve substantial questions of law. 12. The plaintiff is said to be a civil contractor. The entire suit is based upon the agreement, dated 14.08.1998, which is not marked and which is entered in between the plaintiff and defendant No.1 for demolition of existing building and construction of a new building in the Sector VI, MVP Colony, Visakhapatnam for a total consideration of Rs.5,00,000/- to be paid in instalments. The said agreement is not marked. It is the case of plaintiff that thereafter, in pursuance of the said agreement, the plaintiff completed the construction of the building as per the approved municipal plan and also made some additional constructions as per the requirement of defendant No.1 by laying marble stones instead of NITCO tiles and that originally the area of construction is 1800 square feet instead of 1320 square feet. It seems the plaintiff spent Rs.1,00,000/- and more towards the difference of cost in the additional construction and also for laying marble flooring. After the building was constructed, it was handed over to defendant No.1 and the ground floor was leased out to defendant No.2 and the second floor was leased out to defendant No.3. Defendant No.1 paid Rs.4,00,000/- towards the costs of construction instead of Rs.5,00,000./-. Therefore, the plaintiff is entitled for the balance amount of R,.1,00,000/- out of the agreed amount and another sum of Rs.1,00,000/- towards additional cost of construction. Insofar as the incurring expenditure of Rs.1,00,000/- is concerned, the plaintiff has not filed any documentary evidence to show that he incurred additional expenditure of Rs.1,00,000/-. There must be a basis for incurring expenditure over and above the amount agreed under the contract except the omni bus statement of P.W.1, no documentary evidence is produced. Similarly, there is no evidence as to specified area for additional construction of the building and there is no mention as to whether the construction is as per the municipal approved plan or as per the personal plan of defendant No.1. 13. The parties agreed to carry out the mutual obligations under construction agreement, dated 14.08.1998. The said construction agreement is the best proof of evidence to show about the nature of the construction of the building, area of the building and as to what amount defendant No.1 has to pay after handing over the building. This important document has been suppressed by the plaintiff for the reasons best known to him. Under Section 114(g) of the Indian Evidence Act, 1872 (for brevity, “the Act”), the court may presume that the evidence, which could be and is not produced, would if produced, be unfavourable to the person who withholds it. The illustration refers to the presumption raised from willful withholding of evidence. Suppression or withholding of useful evidence naturally leads to the inference that the evidence, if produced, would go against the party who withholds it. If it is drawn, the plaintiff suppressed the material document, which would disclose the liability of payment by defendant No.1 immediately after the construction of the building. When the terms and conditions are reduced into writing by way of a document, oral evidence cannot be permitted to let in. Of course if the defendant admits the terms and conditions of the document, then the production of the document may not be necessary. But when entire suit of plaintiff is based upon the terms of construction agreement, then certainly it is required for the purpose of resolving the issues in dispute. One of the rules which governs the production of evidence requires that the best evidence, of which the case in its nature is susceptible should always be produced. Section 91 of the Act lays down inter alia that the terms and conditions of a contract, have been set out in writing by agreement of parties and in the case of all the documents required by law to be in writing, the document is intended to be a record of the transaction and, therefore, no other evidence shall be given to prove the transaction except the document itself or secondary evidence thereof when such evidence is admissible. No explanation was given for not filing the construction agreement on which the entire suit depends upon. Further more, the plaintiff has not given any data as to how he arrived at the liability of the defendant to pay Rs.2,00,000/-. Therefore, both the courts below rightly dismissed the suit of the plaintiff. 13. According to the learned counsel for the appellant, the substantial question of law is that when the facts are not disputed they need not be proved. No doubt, under Section 59 of the Act, the admitted facts need not be proved, but, at the same time, nowhere in the written statement, defendant No.1, who is a party to the document, admitted the contents of the agreement, dated 14.08.1998. When the document itself is not filed into the court and when the plaintiff did not speak about the contents of the document, the question of admitting contents of that document, does not arise. The other contention is that the original agreement was with the defendant and which is a part of record in other legal proceeding. In such a case, the plaintiff ought to have obtained a certified copy of the said document or he could have filed a petition to summon the original from the Court, which was filed by defendant No.1. The third ground is that the report of the Commissioner has not been looked into and no finding has been given. There cannot be any dispute that the report of the Advocate Commissioner lends assurance to the evidence adduced by the plaintiff. When the plaintiff has not proved the case, beyond preponderance of probability, the question of taking assistance of the commissioner’s report may not arise. Therefore, the substantial questions of law as raised by the learned counsel for the appellant, are not substantial questions of law, so as to admit the second appeal. 14. None of the findings is shown to be perverse or contrary to law. The findings are based upon the proper appreciation of evidence on record. As such, the judgment under appeal needs no interference. 15. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _______________ K.C. BHANU, J January 29, 2011 LMV IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY, THE TWENTY NINETH DAY OF JANUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.25 OF 2011 Between: G.Adisesu .....Appellant AND P.Bheena devi and others ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU SECOND APPEAL No.25 OF 2011 January 29, 2011