IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE FOURTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.94 of 1998 BETWEEN: A.Yadagiri Rao … APPELLANT (S) And Municipal Corporation of Hyderabad rep. by its Special Officer and Commissioner, Hyderabad. … RESPONDENT(S) THE HON’BLE SRI JUSTICE N. RAVI SHANKAR C.C.C.A.No.94 of 1998 JUDGMENT: Appellant is the plaintiff in O.S.No.458 of 1985 on the file of the Court of Additional Chief Judge, City Civil Court, Secunderabad (trial Court). He brought the said suit for recovery of a sum of Rs.69,493-75 ps towards the cost of extra work said to have been done by him in erecting a pylon in memory of martyrs of Telangana movement at Gun Park, Hyderabad, on the order placed by the defendant-Municipal Corporation. 2. The trial Court after a contest has by its judgment and decree dated 14.08.1995 partly decreed the said suit for Rs.8,793- 65 ps which is said to have been conceded by the defendant with interest at 12% per annum from the date of the suit to the date of realization. The rest of the claim was rejected by the trial Court both on merits and also on the ground of limitation. Questioning the said judgment and decree the plaintiff has come up with this appeal. 3. To state and decide the points that arise for determination in this appeal the respective cases of the parties should be noted and hereafterwards for convenience they shall be referred to as they are arrayed in the suit. 4. It is the admitted case of both sides that the defendant placed a work order dated 05.10.1972 i.e. Ex.A.8 with the plaintiff for construction of the above memorial. The plaintiff’s case is this. With slight variations the plaintiff started the work and it went on as per schedule and by 20.08.1973 about 62 per cent of the work was completed and the defendant made payments to him for the same. By its letter dated 29.08.1973 the defendant directed the plaintiff to stop the work and it was stopped for 19 months. Thereafter the plaintiff resumed it on 08.12.1974 in accordance with the directions of the Superintending Engineer of the defendant vide his letter dated 6/7.12.1974 and the work was completed by the middle of May 1975. 5. The version of the plaintiff is that he has sustained heavy loss due to stoppage of the work for 19 months as that resulted in delay in execution of the work and his further version is that he had to spend a total amount of Rs.69,493-75 ps inclusive of the amount towards extra work for modifications and extra items exclusive of the amount already paid by the defendant from time to time. The plaintiff then says that as the defendant did not pay the said amount he gave a legal notice dated 01.09.1977 (vide Ex.A.14) and as there was no response from the defendant he was constrained to bring the suit for the above amount. 6. The stand of the defendant is that when the plaintiff commenced work on 08.12.1974 he did not mention about any extra cost and he did not give any notice to that effect also and that he was satisfied with the bill amount paid and he received it without any objections. It then pleaded that the plaintiff did not specify the various amounts claimed also and that it paid the entire bill amount for the work on 09.06.1975 and the defendant accepted it without any demur. It pleaded that the suit is also barred by limitation and even the claim of the plaintiff is devoid of merits. 7. The trial Court framed appropriate issues. The plaintiff himself gave evidence as P.W.1 in support of his case and filed 17 documents. The details of the documents are given in the appendix of evidence mentioned at the foot of the trial Court judgment. The defendant-Corporation did not lead evidence from its side. The trial Court by its impugned judgment answered the issue of limitation against the plaintiff and it also found that the plaintiff’s claim on merits also cannot be accepted except for one item i.e. for the design submitted by the plaintiff and it thought fit to grant Rs.3,000/- on that count but rejected the entire claim for extra work on the ground of limitation also. 8. The trial Court however granted a sum of Rs.2,025/- + Rs.6,768/- aggregating to Rs.8,793/- on the ground that the first item represents the earnest money deposit and the other item represents deductions made out of running bills and granted a decree for the said amount on the ground that the defendant’s counsel conceded the same. It also awarded 12% interest on that amount from the date of the suit to the date of realization. The defendant did not file any cross-appeal against that part of the decree and hence that is outside the scope of this appeal. 9. Sri Somakonda Reddy, the learned counsel for the plaintiff, argued the matter at length and pointed out that since no final bill was paid the question of limitation does not arise and therefore the trial Court erred in answering the issue of limitation against the plaintiff. Then coming to the merits of the suit claim he argued that the trial Court did not appreciate the evidence properly and erred in rejecting it also. He pointed that various documents filed by the plaintiff amply prove his case and therefore this appeal should be allowed. The defendant was served in this appeal but none appeared for it. 10. The following points arise for determination in this appeal. (i) Whether the suit claim is barred by limitation? (ii) Whether the suit claim stands proved on merits? (iii) To what relief? Point No.1: 11. This point relates to the question of limitation. The trial Court discussed this point as issue No.3. The trial Court as a fact found that the work was completed in the middle of May 1975 and the final payment was made on 09.06.1975. The defendant mentioned this date 09.06.1975 as the date on which the final bills were paid to the plaintiff after the completion of the work. The plaintiff in Ex.A.14 notice did not mention as to when he received the final payments which according to the defendant were paid to him and whether that can be treated as final bill and if not why it cannot be treated as final bill. It appears that Ex.A.14 notice was issued by the plaintiff without giving these details with a design to save limitation. 12. The plaintiff also except leading his oral testimony did not file any document to show that he started making demand from 09.06.1975 raising a protest. Hence, his version in this behalf as held by the trial Court cannot be relied upon. Ex.A.14 shows that it is only through that notice which is dated 01.09.1977 that he first made a demand for the alleged extra work done by him. Thereafter he brought the suit on 05.12.1980. Thus the suit is governed by the Limitation Act 1963. 13. Article 18 of the Limitation Act says that for the price of the work done by the plaintiff for the defendant at his request where no time has been fixed for payment, the suit should be filed within three years from the date when the work is done. Even according to the plaintiff the work was completed by May 1975. Even granting allowance for two months notice period contemplated under Section 80 C.P.C. is excluded assuming for a moment it is applicable, still the suit is out of time. Even if the suit is to be held to be governed by Article 113 of the Limitation Act which is the residuary article still it must be held that the right to sue to the plaintiff for filing suit for his alleged extra work must be held to have arisen from the middle of May 1975 or even two months later on the same reasoning mentioned supra. Therefore, the suit cannot be held to be within time as it was presented on 05.12.1980. In other words it follows that the suit claim must be held to be barred by limitation as held by the trial Court. The learned counsel could not bring to my notice any other provision of law under which time could be extended. 14. The learned counsel for the plaintiff argued that since no final bill was settled the suit cannot be held to be barred by limitation. There is no force in this contention. It may be noted that the plaintiff did not come forward in his evidence and show that when the amount was paid to him on 09.06.1975 he raised any protest to the knowledge of the defendant immediately that the said amount was not the correct amount to which he is entitled and that he is entitled to much more. In fact, he did not say what amount was received by him also. Ex.A.8 letter dated 05.10.1972 shows that the defendant agreed to pay Rs.95,000/- for the work and it no doubt reads that the said amount shall be subject to detailed measurements. Basing on this a plea is taken by the plaintiff’s counsel that since no measurements were taken for the work done till the filing of the suit and even thereafter and unless measurements are taken the work cannot be said to have been completed and accepted by the defendant and therefore the suit cannot be said to be barred by limitation. 15. There is no force in the above contention. It may be that Ex.A.8 letter while stipulating the amount as Rs.95,000/- does contain a mention that it will be paid subject to measurements. It is for the defendant to decide about taking measurements. It is seen that the defendant has paid the amount of Rs.95,000/- on 09.06.1975 and it may have decided not to take measurements. That may be an advantage to the plaintiff but he cannot be permitted to complain that since measurements were not taken the time must be extended for the suit without any limitation. After receiving the amount paid on 09.06.1975 the plaintiff should have immediately raised a protest and the evidence let in by him shows that he did not raise any such protest till he gave Ex.A.14 notice. 16. To repeat the plaintiff did not lead any convincing evidence to show that he raised a protest till he sent Ex.A.14 notice dated 01.09.1977 and brought the suit on 05.12.1980. The learned counsel for the plaintiff relied upon the various decisions cited before the trial Court and the trial Court rejected all those decisions as not advancing the plaintiff’s case. There is no compelling reason to disagree with the trial Court’s conclusion that the suit is barred by limitation. Accordingly this point is decided against the plaintiff. Point No.2: 17. This point relates to the merits of the suit claim. In view of the finding under point No.1 it is not necessary to answer this point for the decision in the appeal. However, as an appeal is a continuation of the suit and in view of Rule 2(1) of Order XIV C.P.C. as all the issues have to be answered and as an issue relating to limitation is not a preliminary issue this point is also taken up for determination. 18. Coming to this point, it may be noted that the plaintiff did not in the plaint give break-up of the items pertaining to the value of the extra work said to have been done by him. It is only in Ex.A.14 notice that he gave break-up. The trial Court elaborately discussed each of the said items which are mentioned as eight items by the trial Court. The trial Court rightly observed that in Ex.A.12 letter dated 06.12.1974 through which the defendant asked the plaintiff to resume the work and also in Ex.A.13 letter dated 21.01.1975 the defendant clearly informed that there will not be any change in the rates already entered in the agreement. Despite this the plaintiff kept quiet and did not inform the defendant that there is going to be additional work to be done by him because of the delay and that he has to be paid for that. In fact, he kept quiet and for the first time he sent Ex.A.14 letter setting up his claim for the extra items of the work and the trial Court rightly commented upon this conduct of the plaintiff. 19. It may then be noted that plaintiff claimed a sum of Rs.2,000/- for extra work to done in excavation, a sum of Rs.25,000/- for providing extra step in granite to the monument, a sum of Rs.20,000/- for laying polishing stone on all sides of steps and pavement, a sum of Rs.2,000/- for increasing the height of the first pedestal and a sum of Rs.12,000/- for carving out 4" projection of Sun arches on all four sides of the monument. The plaintiff then claimed Rs.6,000/- for carving out Dharmachakras, Rs.1,500/- for providing 9 petals and Rs.14,150/- for providing design of the monument. He thus made a claim for Rs.60,650/- towards the extra cost of the work alleged to have been done by him. The trial Court pointed out that this amount of Rs.60,650/- roughly constitutes two-thirds of the amount of Rs.95,000/- which was originally agreed to be given in the work order for the work in question. 20. It may be noted that the plaintiff did not choose to examine anybody such as his workers or any other person well versed in the work carried out by him to prove the above claims. He did not even care to file the bills or vouchers for the work originally given to him or for the extra work done by him. The trial Court in my opinion rightly commented that if this is permitted any contractor can make a claim for extra work according to his own calculations and therefore that cannot be permitted. Added to this, it should also be noted that any prudent person would not do extra work the value of which would come to two-thirds of the value of the original work without informing the defendant in a case like this and he would not have proceeded to do that work unless his proposal was accepted by the defendant. Such being the case, the trial Court rejected the claim of the plaintiff for the extra work as not proved. It is true that the defendant did not lead any contra evidence but that is not a ground to uphold the plaintiff’s claim for it is for the plaintiff to prove his claim. There is no compelling reason to disagree with this conclusion of the trial Court also. Accordingly, this point is also decided against the plaintiff. Point No.3: 21. As already mentioned supra, the trial Court granted a decree for Rs.8,793-75 ps with 12% interest per annum from the date of the suit till the date of payment for the reasons already aforesaid. As the defendant did not file any cross-appeal or cross-objection that decree granted by the trial Court is maintained. In view of the findings under points 1 and 2, the rest of the claim of the plaintiff is rejected and this appeal is dismissed with costs. ______________________ N. RAVI SHANKAR, J 4th February, 2011. CVRK