IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 CRP.No. 826 of 2007() --------------------- AS.348/2005 of ADDL.DISTRICT COURT, THRISSUR OS.3161/2002 of PRL.MUNSIFF COURT,THRISSUR .................... REVN. PETITIONER: IST RESPONDENT/PLAINTIFF --------------------------------------------------------------- K.MADHAVAN NAIR, G.D.ARCH, A11 ACA, S/O.LATE RAMAN MENON, ARCHITECTURAL AND ENGINEERING SERVICES, 3RD FLOOR, PARK HOUSE, ROUND NORTH, THRISSUR. BY ADV. SRI.A.K.MADHAVAN UNNI SRI. S. RAMACHANDRAN RESPONDENTS: APPELLANT & 2ND RESPONDENT/ DEFENDANT ---------------------------------------------------- 1. SHYAMALA BHASKARAN, W/O.BHASKARAN, KAREKKATT HOUSE, RAMAVARMAPURAM, VILVATTAM, THRISSUR. 2. RAJAGOPAL, S/O.AYYAPPAN, C/O.WHEELS MOTORS, 27/173 DNM ROAD, NEAR ASWANI HOSPITAL, CHEMBUKKAVU, THRISSUR RESIDING AT CHAKKUMTHODIYIL HOUSE, P.O.CHEMMANIYODE, VIA.PATTIKKAD, MALAPPURAM DISTRICT. ADV. SRI.VAKKOM N.VIJAYAN FOR R1 SMT.V.RENJU FOR R1 SRI.P.ANIYAN FOR R1 SMT. RAMITHA M A THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/12/2011, THE COURT ON 20/12/2011 PASSED THE FOLLOWING: M.L.JOSEPH FRANCIS J., - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No.826 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of December, 2011 ORDER This C.R.P. is filed by the plaintiff in O.S. No.3161 of 2002 on the file of the Principal Munsiff Court, Thrissur. The respondents 1 and 2 herein were the defendants 1 and 2 in that suit. 2. The case of the revision petitioner is briefly as follows. The revision petitioner/ plaintiff is a qualified registered and licensed architect, M/s.Architectural Engineering Services at Park House Road, North Thrissur, engaged in the profession of rendering engineering services, running as a proprietary concern. 3. The 1st respondent, owner of 10 cents of land comprised in Sy.No.288/1 of Thrissur village at West Palace Road, with the aid of the 2nd respondent approached the revision petitioner for the purpose of construction of apartment in the property. The revision C.R.P. No.826 of 2007 :2: petitioner, on instructions and after due discussions, prepared a design and detailed drawings. Sanction was obtained from the Thrissur Muncipal Corporation. The plaintiff thus became entitled to a sum of Rs.44,600/- as professional fee for services in consultation, preparation of plan, estimate etc. The defendants paid Rs.5,000/- and a sum of Rs.39,600/- was kept outstanding. 4. The 1st respondent/defendant abandoned the project and sold the land. The revision petitioner/plaintiff, on 31.8.2002, sent a partial bill for professional services for Rs.39,600/-, allowing a concession of Rs.19,600/-, provided the bill was settled within 30 days. Thus a payment of Rs.20,000/- was demanded. But no payment was made by the defendants. The revision petitioner sent a notice dated 10.10.2002 demanding payment. The 1st respondent/defendant replied raising false contentions denying liability to pay contending that there is no privity of contract and disputing facts. 5. The revision petitioner/ plaintiff filed suit O.S.No.3161 of 2002 for realisation of Rs.39,600/- with interest and costs. The C.R.P. No.826 of 2007 :3: respondents/ defendants resisted the suit. The plaintiff gave evidence as PW1 and marked Exts.A1 to A7. The 1st defendant examined herself and DW1. The learned Munsiff decreed the suit directing the 1st respondent/ defendant to pay a sum of Rs.20,000/- to the plaintiff together with interest at the rate of 6% and costs. The suit against second defendant was dismissed. Against that judgment and decree, the first defendant filed A.S.No. 348 of 2005 before the first Additional District Court, Thrissur, which was allowed and the suit was dismissed. Against that judgment and decree the first respondent filed this C.R.P. 6. Heard learned counsel for the revision petitioner and learned counsel for the first respondent. 7. At the time of hearing, learned counsel for the revision petitioner raised the following contentions. (i) The lower appellate Court went wrong in assuming that the plaintiff is not entitled to sue as an individual. Its view that the plaintiff's organization is a partnership firm is against law, facts and truth. The Court ought to have found C.R.P. No.826 of 2007 :4: that it is not a partnership firm and the plaintiff is the proprietor of the Architectural and Engineering Services. (ii) The lower appellate Court went wrong in formulating a question whether the suit is maintainable in the light of the fact that no maintainability question was raised at the trial. (iii) The lower appellate Court went wrong in not giving a definite finding on the point of maintainability of suit after formulation of such a question and after discussing the issue. (iv) The lower appellate Court fell into error while considering and deciding the point No.2 namely, whether the learned Munsiff was correct in granting a decree for a sum of Rs.20,000/-. (v) The lower appellate Court's view that the plaintiff has no consistent case is far fetched without basis and out of misconception. The plaintiff referring to his organization that it is a partnership firm in the common man's language is C.R.P. No.826 of 2007 :5: mistook as an admission that it is a partnership firm. PW1 in his evidence has stated that he is proprietor. There is no material or truth to assume that it is a partnership. The status of the plaintiff is wrongly understood by the Court and this has influenced the judgment. The learned counsel for the first respondent supported the judgment of the appellate Court. 8. In the judgment of the appellate Court it is stated that when PW1 was cross-examined, it was categorically admitted that the plaintiff is a firm and that on the basis of that admission the suit ought to have been filed by the plaintiff representing the firm. But when PW1 as cross-examined by the second defendant, he categorically stated that he is the proprietor of the plaintiff concern. The appellate Court has not taken into consideration this statement of PW1 while considering the appeal. In the written statement filed by the first defendant and when the first defendant was examined as DW1, she has no case that the plaintiff was a partnership firm. DW1 admits in the cross examination that her main contention in C.R.P. No.826 of 2007 :6: the suit is that the fees demanded by the plaintiff is excessive. Therefore it is clear that the first defendant is not disputing her liability to pay professional fee to the plaintiff, but disputed only the quantum of the fee payable. Dw1 admitted that the signature seen in Ext.A1 plan is that of her and that in that plan the plaintiff has also signed and that it was the second defendant who gave that plan to her and that her husband gave a cheque for Rs.5,000/- to the plaintiff on her behalf. 9. Ext.A1 is the site plan prepared by the plaintiff. It is signed by the first defendant and submitted before Thrissur Corporation for obtaining sanction. Ext.A2 is the estimate for the construction. Exts.A1 and A2 would show that the plaintiff had done a lot of work to prepare the same. Sanction was obtained to Ext.A1 plan from the Thrissur Corporation. In Ext.A4 letter sent by the plaintiff, it is stated that he was prepared to settle his claim of his professional fee for Rs.20,000/- and that the learned Munsiff decreed the suit for that amount. Since the learned Munsiff has decreed the suit for the amount by giving sufficient reasons, the C.R.P. No.826 of 2007 :7: lower appellate Court went wrong in dismissing the suit by setting aside the judgment and decree of the trial Court without any sufficient reasons. Since the approach of the lower appellate Court is not justifiable, I am of the view in the interest of justice that this C.R.P. has to be allowed and the judgment and decree of the appellate Court have to be set aside and the judgment and decree of the trial Court have to be restored. Accordingly this C.R.P is allowed and the judgment and decree in A.S. No.348 of 2005 on the file of I Additional District Court, Thrissur are set aside and the judgment and decree in O.S. No.3161 of 2002 on the file of Munsiff Court, Thrissur is restored. Parties are directed to suffer their respective costs in this C.R.P. M. L. JOSEPH FRANCIS, (JUDGE) dl/