IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 SA.No. 360 of 1998() -------------------- AS.153/1992 of II ADDL.DISTRICT COURT, THRISSUR OS.4/1988 of MUNSIFF COURT,CHAVAKKAD ................... APPELLANT/APPELLANT/PLAINTIFF: ----------------- CHERAPPAN, S/O.CHERUVATHOOR ITTOOP, PENGAMUCK DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR SRI.V.VARGHESE RESPONDENT/RESPONDENT/DEFENDANT: ------------------- THANKAPPAN, S/O. ASARI KARAPPAN, THAZHATHETHIL, THOLUR VILLAGE, PONNORE DESOM, THRISSUR TALUK, THRISSUR DISTRICT. ADV. SRI.GEORGE VARGHESE NARAYANPARAMBIL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ S.A.NO.360 OF 1998 ------------------------------- DATED THIS THE 4TH DAY OF AUGUST,2010 JUDGMENT Plaintiff in O.S.No.4/1988 on the file of the Munsiff's Court, Chavakkad is th appellant. The appeal is directed against the judgment and decree in A.S.No.153/92 on the file of the District Court, Thrissur. The suit was filed for recovery of money. The trial court dismissed the suit and the same was confirmed in appeal. The parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaintiff sued the defendants for realisation of Rs.3,628.62ps. with interest at 6% per annum. Plaintiff has engaged the defendant as a Contractor for the RCC work of his house. According to the plaintiff, the defendant has done 120.63 square feet of pillar work and 1219 square feet of RCC work, that the defendant is entitled to get a sum of Rs.10,077.38ps. for the work done by him and that the defendant has received an -2- S.A.No.360/98 excess amount of Rs.3,628.62ps. Therefore, the suit was filed for realisation of the said excess amount. 3. The defendant denied the averments in the plaint and prayed for dismissal of the suit. The defendant contended that the suit is barred by limitation, that the plaintiff has gone out of the final settlement of accounts on 28/12/1984 in order to save the period of limitation, that no measurement was taken on 28/12/1984 as contended by the plaintiff and that he has no liability to pay the amount claimed in the suit. 4. The trial court as well as the Lower Appellate Court examined the contentions of the respective parties, in the light of the evidence adduced by them. The parties adduced oral and documentary evidence. The courts below held that there is nothing on record to show that the plaintiff is entitled to realise the amount claimed in the plaint. The case of the plaintiff that the defendant has done 120.63 square feet of pillar work and 1219 square feet of RCC work was examined, in the light of the -3- S.A.No.360/98 contentions raised by the defendant in the written statement. The trial court as well as the Appellate Court on merits held that except the interested testimony of PW-1, there is no acceptable data to show the exact quantum of work done by the defendant and therefore, the plaintiff is not entitled to the relief sought for in the plaint. The trial court held that the suit is barred by limitation. The Lower Appellate Court reversed the said finding and held that the suit is not barred by limitation. The Lower Appellate Court also examined the question as to whether the plaintiff has advanced any amount in excess of the amount due to the defendant. The Lower Appellate Court, after appreciating the evidence, agreed with the findings of the trial court and held that the plaintiff has failed to establish the quantum of concrete work done by the defendant for his building and has rendered impossible for the court to calculate the amounts due to the defendant and to arrive at the amount if any to be repaid to the plaintiff. The Lower Appellate Court further held that the burden -4- S.A.No.360/98 to establish as to what will be the exact amount due to him from the defendant is on the plaintiff and that the plaintiff failed to establish his case and therefore not entitled to any relief. 5. I have examined the rival contentions of the parties and the findings recorded by the courts below. The findings recorded by the courts below are purely based on the facts and circumstances of the case. I find that no valid grounds are made out by the appellant to interfere with the findings of fact recorded by the courts below. No question of law much less any substantial questions of law arise for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, JUDGE. kcv