IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 AS.No. 567 of 1999(B) --------------------- OS.60/1988 of SUB COURT, OTTAPPALAM .................... APPELLANT/DEFNDANT:: ----------------- GODAN NAMBOODIRI, S/O.THALIYIL MANAKKAL SUBRAMANION NAMBOODIRIPAD, RESIDING AT ELAMBULASSERI AMSOM AND DESOM IN OTTAPALAM TALUK. BY ADV. SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE SMT.PRABHA R.MENON SRI.PUSHPARAJAN KODOTH SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES RESPONDENS/PLINTIFF 1 TO 4: ------------------ 1. PURUSHOTHAMAN NAMBOODIRI, S/O.PUKKUZHI MANAKKAL VASUDEVAN SOMAYAJIPADU. 2. VASUDEVAN NAMBOODIRI, S/O.DECEASED DIVAKARAN SOMAYAJIPPADU. 3. GHRUNI NAMBOODIRI, S/O.DECEASED DIVAKARAN SOMAYAJIPPADU. 4. NARAYANAN NAMBOODIRI, S/O.DECEASED DIVAKARA SOMAYAJIPPADU. (RESPONDENTS ARE RESIDING AT ALANGODE AMSOM AND DESOM IN PONNANI TALUK) (IT IS RECORDED THAT RESPONDENTS 2 TO 4 ARE THE LEGAL REPRESENTATIVES\ OF THE DECEASED IST RESPONDNT AS PER ORDER DTD. 23/11/99 ON MEMO NO. C.F. 14114/99 DT. 16/11/99) ADV. SRI.S.V.BALAKRISHNA IYER, SENIOR ADVOCATE FOR R2 TO 4 SRI.P.B.KRISHNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.4701/99 IN A.S.NO.567/99 ------ Dismissed 16/10/1999 Sd/- HARUN-UL-RASHID, JUDGE. TRUE COPY P.S TO JUDGE. HARUN-UL-RASHID,J. --------------------------- A.S.NO.567 OF 1999 --------------------------- DATED THIS THE 16TH DAY OF OCTOBER, 2009 JUDGMENT Defendant in O.S.No.60/88 on the file of the Sub Court, Ottapalam is the appellant. The suit was filed for recovery of the amount advanced to the defendant under Ext.A1 agreement executed by the defendant in favour of lst plaintiff and Divakaran Somayajippadu. The lst Plaintiff and defendant entered into an agreement (Ext.A1) agreeing to construct a compound wall for the plaintiffs' property and received a sum of Rs.30,000/- as advance in October 1984. The defendant carried 14 loads of granite and constructed a compound wall to a length of 100 feet and height of 4-5 feet. He did not complete the work. The rate per unit was Rs.325/-. Admittedly, the defendant did not complete the work as agreed. On 24/11/1985 the defendant sent Ext.A4 letter to the lst plaintiff expressing his inability to proceed with the work and advised the lst plaintiff to engage one -2- A.S.No.567/99 Kunhan for completing the work. The above said facts are not seriously disputed by either parties. The plaintiffs alleged that the defendant committed breach of contract, as he did not construct a compound wall; but only a portion. The oral evidence of PWs.1 and 3 and Ext.A4 conclusively proved that the defendant did not complete the compound wall. In Ext.A4 letter the defendant had undertaken to refund the amount received as advance less the amount spent by him for constructing the portion of the compound wall. 2. It is an admitted case of the plaintiffs that the defendant constructed a portion of the compound wall. The trial court disbelieved the version of the plaintiffs that the compound wall constructed by the defendant is collapsed. The trial court rightly held that there is no evidence for the plaintiff to prove that a portion of the compound wall fell down. In such circumstances, the trial court rightly held that out of the advance amount of Rs.30,000/- the defendant can retain the amount spent -3- A.S.No.567/99 by him for constructing the part of the wall. 3. The trial court relied on the evidence of PW-3 to prove that the total quantum of work done by the defendant. PW- 3 is an Engineer. Exts.A5 and A6 are the details noted by PW-3 at the time of taking measurement. There is no dispute regarding the rate per unit agreed by the parties. PW-3 assessed the cost of construction and calculated an amount of Rs.5,092/- at the rate of Rs.325/- per unit. The trial court believed the evidence of PW-3 and relied on Exts.A5 and A6. The court also noticed the fact that the name of PW-3 was included in the original witness list and PW-1 spoke that PW-3 was engaged to conduct check measurement. 4. The learned counsel for the appellant contended that the court below went wrong in permitting the plaintiffs to examine PW-3 after remand, that his evidence cannot be used to prove that PW-2 did the rest of the work in the light of the evidence tendered by PW-2 himself. I have examined the -4- A.S.No.567/99 testimonies of the parties and the documents produced by them. PW-3 is an Engineer by profession. He has 28 years of service. He testified before the court below that during 1985 he had occasioned to measure and assess the quantity of the work done by the defendant. The trial court accepted the plea of the defendant that he had constructed the compound wall upto a length of 151 feet. The amount quantified by PW-3 and accepted by the court at Rs.5,092/- cannot be said to be reasonable and adequate for the construction of 151 feet long compound wall having 4-5 feet height. The amount assessed is too inadequate. 5. In the circumstances, this Court is inclined to fix a reasonable amount as spent by the defendant for the construction of a portion of the compound wall. In the circumstances, the amount assessed as cost of the construction is modified and re- fixed at Rs.10,000/-. Therefore, the plaintiffs are entitled to a decree for Rs.20,000/- with interest at 9% per annum from the date of suit till the date of decree and at 6% per annum -5- A.S.No.567/99 thereafter. In the result, the appeal is partly allowed. The judgment and decree passed by the trial court is modified to the extent indicated above. No order as to costs. HARUN-UL-RASHID, Judge. kcv. -6- A.S.No.567/99