IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 RSA.No. 1050 of 2008() ---------------------- AS.89/2002 of II ADDL. DISTRICT COURT, TRIVANDRUM OS.1016/1994 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT/PLAINTIFF: ---------------------------------------- A.NAZARUDDIN, S/O.N.ABHUSHAN PILLAI, MARAKKATTIL KUNNUMPURATHU VEEDU, MUTHUVILA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.RAJESH. K.RAJU SRI.INNOCENT FRANCIS PAPALI RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------------- 1. SUSAN ALICE VARGHESE, W/O.C.T.RAJAN, T.C.9/1167, NEAR KARTHIKA MADANCOIL LANE, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. C.T.RAJAN, H/O.SUSAN ALICE VARGHESE, -DO-, -DO-. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1050 of 2008 = = = = = = = = = = = = = = Dated this the 26 th day of November, 2008 JUDGMENT The plaintiff in O.S.No.1016 of 1994 on the file of the I Additional Sub Court, Thiruvananthapuram is the appellant in this second appeal. The said suit was one for recovery of a sum of Rs.1,09,451.25 being the balance amount allegedly due to the plaintiff for constructing a house for the defendants. The plaintiff contended that as per an oral agreement between the plaintiff and the defendants he was entrusted with the work of constructing the house of the defendants. For that he spent Rs. 3 lakhs from his pocket and that the defendants had paid only Rs.1,90,000/- and a suit was filed for the balance amount of Rs.1,09,451.25. 2. The defendants in their written statement denied the oral agreement set up by the plaintiff. The defendants denied the case of the plaintiff that he was entrusted for constructing their house. They stated that certain specific works were undertaken by the plaintiff and he was given the full amount by the defendants. The defendants, therefore, sought a dismissal of R.S.A.No.1050 of 2008 2 the suit. 3. On the side of the plaintiff Ext.A1 to A24 were marked and PWs 1 to 3 were examined. On the side of the defendant, Exts.B1 to B6 were marked and DWs1 to 6 were examined . 4. The learned Sub Judge after trial, as per judgment and decree dated 21.6.01 found that the oral agreement set up by the plaintiff has not been proved, that the plaintiff failed to prove that he was engaged by the defendants for the construction work of their house, that his case that he was supervising the entire construction work was not true, that it was DW2 who was supervising the construction and not PW1 and accordingly dismissed the suit. 5. On appeal preferred by the plaintiff as A.S.No.89 of 2002 before the II Additional District Court, Thiruvananthapuram, as per judgment and decree dated 30.10.07, the lower appellate court confirmed the judgment and decree passed by the trial court and dismissed the appeal. Hence this Second Appeal. 6. The learned counsel appearing for the appellant assailed the decree passed by the courts below by making the R.S.A.No.1050 of 2008 3 following submissions:- The 2nd defendant examined as DW1 would depose before court that more than what was due to the plaintiff was paid by the defendants. If so, the defendants were putting forward a plea of discharge in which case by virtue of Section 101 of the Evidence Act, the burden was on the defendants. The 1st defendant has chosen to avoid the witness box. When the party to the suit evades the witness box and fails to give evidence in support of his case and does not also offer herself for cross examination by the opposite party, the court can draw an adverse inference against the party (vide Vidhyadhar v. Mankikrao and another (1999 SC 1441). The courts below have proceeded by casting the burden on the wrong shoulders. Hence the judgment and decree are unsustainable. 7. I am afraid that I cannot agree with the above submissions. The plaintiff came to court setting up an oral agreement under which he was allegedly engaged by the defendants to construct their house and to supervise the construction. The concurrent findings recorded by the courts below is to the effect that the oral agreement set up by the R.S.A.No.1050 of 2008 4 plaintiff is not proved. Similarly, the courts below have held that it was not PW1, the plaintiff but DW2 was supervising the construction. No evidence was adduced to show that the entire construction was entrusted to PW1 or that he had effected the construction. He also did not prove that he had spend Rs. 3 lakhs for the construction and a sum of Rs.1,09,451.25 was due from the defendants. Adverse inference against a party not mounting the witness box can be drawn only with the burden was exclusively on such party. Here, the burden was squarely on the plaintiff. He cannot pick holes in the defence and try to get a decree in his favour. The findings recorded by the courts below are pure findings of fact. The burden was also rightly cast on the plaintiff's shoulders. No question of law, much less any substantial question of law arises for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 26 th day of November, 2008. V. RAMKUMAR, JUDGE sj