Regular Second Appeal No. 2127 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 2127 of 2008 Date of decision : July 29, 2010 Dharam Pal ....Appellant versus Ram Bahadur ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Madan Pal, Advocate, for the appellant Mr. Ravinder Malik, Advocate, for the respondent L.N. Mittal, J. (Oral) Defendant Dharam Pal having remained unsuccessful in both the courts below has filed the instant second appeal. Ram Bahadur plaintiff/respondent filed suit against appellant for recovery of Rs 32,943/- alleging that as per agreement dated 14.6.1999 entered into between the parties, the plaintiff constructed shop of the defendant and the total amount of labour charges payable to the plaintiff by the defendant was Rs 49,743/-, out of which the defendant paid Rs 16,800/- only to the plaintiff. Accordingly, the plaintiff sought recovery of the balance amount of Rs 32,943/-. The defendant in his written statement admitted the aforesaid Regular Second Appeal No. 2127 of 2008 -2- agreement. However, the defendant pleaded that he had paid Rs 10,000/- in advance to the plaintiff at the time of execution of the agreement. However, the plaintiff did not start construction work and therefore, the defendant engaged another contractor Bhupinder Singh to raise the construction. Since the plaintiff did not execute the work, the plaintiff is not entitled to any amount. Learned Additional Civil Judge (Senior Division) Karnal vide judgment and decree dated 7.9.2006 decreed the plaintiff's suit. First appeal preferred by the defendant stands dismissed by learned Additional District Judge, Karnal vide judgment and decree dated 25.7.2007. Feeling aggrieved, the defendant preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. At the out set it may be mentioned that in the plaint date of agreement is mentioned as 4.6.1999 but agreement Ex. P3 which stands admitted even by the defendant is dated 14.6.1999. Consequently, the aforesaid mistake in the plaint is immaterial. It may also be added that the plaintiff mentioned the relief in the plaint in declaratory form but in fact he sought recovery of Rs 32943/- and also paid ad-valorem court fee thereon. Consequently, it was a simple suit for recovery of the said amount although relief was not properly drafted. Learned counsel for the appellant vehemently contended that the appellant/defendant got the construction work done from Bhupinder Singh who also appeared in the witness box as DW1 and supported the Regular Second Appeal No. 2127 of 2008 -3- defendant's version. It was accordingly contended that the finding of the courts below is perverse and unsustainable. On the other hand, learned counsel for the plaintiff/respondent contended that the agreement stands admitted by the defendant and there is no recital of payment of advance money of Rs 10,000/- in the agreement nor the defendant ever demanded back the said amount from the plaintiff nor the defendant responded to the notice served by the plaintiff. It was also contended that the plaintiff has led cogent evidence to prove his case. I have carefully considered the rival contentions. The argument raised by learned counsel for the appellant relates to appreciation of evidence. However, in second appeal evidence is not required to be appreciated again because the lower appellate court is final court of fact. In the instant case, there is concurrent finding of fact by both the courts below. The said finding is based on analysis and appreciation of evidence led by both the parties. It cannot be said that there has been any mis- reading and mis-appreciation of evidence so as to require this Court in second appeal to again look into the evidence. In addition to the aforesaid, even if the evidence is looked into and appreciated again, the finding recorded by the courts below is fully justified. The defendant's claim is that he had paid Rs 10,000/- in advance to the plaintiff at the time of execution of the agreement itself. However, there is no mention of this fact in the agreement. If the defendant had paid the said amount to the plaintiff at the time of agreement, a recital to this effect would have certainly been mentioned in the agreement itself. The defendant's version is, thus, completely unreliable. On the other hand, the Regular Second Appeal No. 2127 of 2008 -4- plaintiff has admitted that he has received Rs 16,800/- in all from the defendant towards execution of the work by the plaintiff. Moreover, if the plaintiff did not execute any work of the defendant, it is not explained why the defendant did not demand back the alleged advance amount of Rs 10,000/- paid by him to the plaintiff. No notice was ever served by the defendant for demanding back the said amount. No other step was either taken by the defendant in this direction. Even in the instant suit, defendant is not making any counter claim for the recovery of the said amount. Moreover, plaintiff served notice on the defendant but the defendant did not think it proper to respond to the said notice to claim back the amount of Rs 10,000/-. The plaintiff was to execute the work for Rs 49743/- but Bhupinder Singh allegedly executed the work for Rs 41290/- only. It also sounds improbable that the defendant was paying 20% extra amount to the plaintiff for execution of the same work and subsequently got the same work executed from Bhupinder Singh for such less amount. For the reasons recorded hereinabove, I find no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in this second appeal. Accordingly, the appeal is hereby dismissed. ( L.N. Mittal ) July 29, 2010 Judge 'dalbir'