<s^^ APPELLANT: (Defendant) IN THE HIGH COURT OF JUbICATURE AT BILASPUR CIVIL REVISION N0._^_M_OF_20C^- Shri Rai Choudhary, son of Late H.N. Rai Choudhary, Proprietor of Stainfeb Engineers, Plot No.264/56, Ispat Nagar, Risali, Bhilai, Teshil <& District Durg (C.<5.) RESPONDENT: (Plaintiff>^ Mahendra Kumar Lal, son of Late Shyam Sunder Lal, aged about 36 years, Occupation- Civil Engineer, resident of 3/18, Ispat Nagar, Risali, Bhilai, Teshit <& District Durg. PETITION UNbER SECTION 115 OF CODE OF CIVIL PROCEOURE. 1908 r HIGH COURT OF CHHATTISG^ARH AT BIIASPUR C.R. No. 4 OF 2007 APPLICANT Shri Rai Choudhaiy Versus RESPONDENT Mahendra Kumar Lal SINGLB BENCH:- Hon. Shri N.K. Agarwal, J PRBSENT: Shri Kshitij Shajana, Advocate, for fhe appUcaat None appears for non-appUcant ORAL ORDBR (12-1-2010) 1. Heard on admission. 2. The tnstant revision arises agaiast the judgment and decree passed in CivU Appeal No. 3B/2005 dated 27-3-2006 by XIIfh Additional District Judge (FTC), Durg afiinning the judgment and decree passed by VtIIfh Civil Judge Class II, Durg in CivU Suit No. 26B/1996. 3. Fact of the case in brief are that the plaintiff and the defendant entered into a works contract whereunder the plaintiffhas to complete fhe construction offactoiy shed in 5 stages. The defendant paid the amount payable upto stage T>f offhe construction, fhe plaintifffheneompleted the entire constniction by 16-5-1993, but fhe defendant did not pay the balance amount payable to fhe plauitiffie. Rs. 15,000/-. For its recoveiy, the instant suit has been preferred. The defendant in his written statement although did not dispute regarding balance amount, but took a specific plea that the work done by the plaintiff is defective and fhe plaintiff is required to make good the default/defect in the construction. For that, by way of counter claim, he also sought a relief of declaration. 4. The trial Court after a close scrutiny of the pleadings of the parties, evidence led, material placed and submissions made recorded a finding that the defendant fafled to estabMsh that the said cdnstruction is defective and decreed the plaintiffs suit and also' dismissed fhe counter claim of fhe applicant. There-against, the defendant preferred a civil appeal which has also been dismissed. Since the aaiount in dispute is less fhan 25,000/- and second appeal is barred under Secteion 100 of C.P.C., hence this revision. 5. Shri Kshitij Sharma, leamed counsel appearing for the applicant has raised two questions; first, as per the finding recorded by the trial Court which was affirmed by the appellate Court, ftie defendaat has admitted that the work has been done by the plaintiff in accordance with the agreement is factually uicorFect; and secondly, the burden to prove the fact whefher or not the work done by fhe plamtiff is defective has been wrongly placed upon the defendant 6. I have heard leamed counsel for the applicant and penised the unpugned judgment and decree of both the Gourts below. 7. In para 9 of its judgment, fhe trial Court based on appreciation of evidence recorded a ftndmg that the defendant has admitted his liabmty to pay Rs. 15,000/- for the work done by the plaintiff, but he failed to prove fhe fact that he is not liable to pay fhe said amount due to defective construction as per the contract and decreed the suit. What has been observed by the trial Court is that there is no mention in ftie contract that in case of defect in the work, the plaintiff would not be entitied for fhe payment of work done by him. It has not been held by fhe trial Court that the defendant has admitted fhe fact that the plaintiff has completed constaruction without any defect and, therefore, it cannot be said that fhe trial Court has negated the contention raised by the defendant based on admission of the defendant. So far as fhe question of burden to prove is concemed, it is well settled law fhat the plea of defence has to be proved by the defendant The finding recorded by ttie trial Court and affirmed by fhe appellate Coiirt are based on appreciation of evidence and cannot be said fhat the Courts below have exercised a jurisdiction not vested in it or have failed to exercise the jurisdiction so vested or have acted in exercise of its jiirisdiction illegally or with material uTegularity. 8. For fhe foregoing reasons, the revision being devoid of substance is Uable to be and is hereby dismissed. Sd/- N.K.Malwa' 3udge