Chathoth Moosa Haji v. Nedumpurath Meethal Hamsa Haji

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD DAY OF APRIL 2012/14TH CHAITHRA 1934 RSA.No. 800 of 2004 ( ) ----------------------AS.51/1999 of ADDL.DISTRICT COURT-I, KOZHIKODE OS.9/1997 of SUB COURT, VADAKARA APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------ CHATHOTH MOOSA HAJI, S/O. ATHRUMAN KUTTY, AGED 55 YEARS VADAKARA AMSOM DESOM OF VADAKARA TALUK KOZHIKODE DISTRICT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S)/RESPONDENT/DEFENDANT: ----------------------------------- NEDUMPURATH MEETHAL HAMSA HAJI S/O. AHAMMED KUTTY, AGED 51 YEARS RESIDING AT ONCHIYAM AMSOM, URALUNGAL DESOM VADAKARA TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.N.L.KRISHNAMOORTHY THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-04-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------R.S.A. No.800 of 2004 -------------------------------------Dated this the 3[rd] day of April, 2012.** ## **JUDGMENT** This second appeal is admitted on the following substantial question of law: “Whether the lower appellate court was justified in not receiving and adverting to the plaint, O.S.No.360/1994, filed by the defendant herein, which if referred to would have falsified his contention in the present suit and probabilised the case of the appellant/plaintiff?” 2. This second appeal arises from the judgment and decree of learned I Additional District Judge, Kozhikode in A.S.No.51 of 1999 refusing to interfere with the judgment and decree of learned Sub Judge, Vadakara in O.S.No.9 of 1997. 3. According to the appellant, at a time when the respondent was at Behrain, the latter started construction of a commercial complex and on 12.06.1990 in the presence of mediators, appellant was engaged to supervise the construction on the understanding that he will be paid 20% of the cost of construction as commission. Accordingly, appellant supervised the construction. Cost of construction came to `12,65,500/-. In terms of the agreement between the parties, appellant is entitled to get `2,55,050/- as commission. Since the amount was not paid, appellant filed the suit but limiting 2 RSA No.800/2004 his claim to `1,26,530/-. 4. Respondent denied that there was any such agreement between him and the appellant. He contended that appellant being an illiterate trader residing about 30 miles away from the site of construction and when qualified engineers were available on payment of commission @ 10 to 15% of the cost of construction, there was no necessity, occasion or possibility to engage appellant to supervise the construction. . Respondent contended that appellant had no technical know-how or expertise in construction work so that he could be engaged for supervision. 5. Appellant gave evidence as PW1. He examined one of the (alleged) mediators as PW2 (the other alleged mediator being dead). PW2 was examined on commission and as seen from the deposition of PW2 recorded by the Advocate Commissioner, further cross examination of the witness was stopped as a request was made that the witness had to proceed to Ernakulam and then to Madras for his treatment. In the light of that request, Advocate Commissioner adjourned the further cross examination of PW2. The undisputed fact is that PW2 was not thereafter available for cross examination. Respondent gave evidence as DW1 and denied that there was any such agreement between him and the appellant. 6. Trial court refused to act upon the evidence of PW2 as respondent did not get full opportunity to cross examine that witness. Referring to the evidence of PW1 and DW1, trial court held that there was no reliable evidence to show that appellant was engaged to supervise the construction 3 RSA No.800/2004 work as claimed by him. The suit was dismissed. 7. Appellant took up the matter in appeal. Learned Additional District Judge was of the view that evidence of PW2 cannot be completely brushed and held that the evidence of PW2 is not in any way helpful to the appellant. Appellant filed I.A.No.284 of 2002 in the appeal to receive additional evidence under Order XLI Rule 27 of the Code of Civil Procedure (for short, “the Code”) and produced the copy of plaint in O.S.Nos.357 and 360 of 1994. It is pointed out that learned Additional District Judge did not pass any order on that application. Learned Additional District Judge concluded that the claim of appellant is not established and dismissed the appeal. That judgment and decree are under challenge. 8. It is contended by the learned counsel for appellant that the first appellate court ought to have allowed I.A.No.284 of 2002 since the documents produced along with that application contained clear admission by the respondent that appellant was engaged to supervise construction of the building, which has a bearing in the decision of the case. It is also contended by the learned counsel that first appellate court having agreed with the appellant that evidence of PW2 cannot be brushed aside in toto, that evidence ought to have been taken as supporting the version of appellant. Learned counsel has invited my attention to Sec.70 of the Indian Contract Act to contend that once it is found that appellant has done service for respondent, there being no case for the latter that it was gratuitous, appellant is entitled to be paid for the service rendered by him. Learned counsel contends that PW2 was cross examined by 4 RSA No.800/2004 the respondent at length though it was not completed as he had to go to Madras for treatment and hence further cross examination was stopped. Since he died subsequently, he was not available for cross examination. In that circumstances the evidence of PW2 cannot be brushed aside. 9. Learned counsel for respondent would contend that the evidence of PW2 cannot be taken into account since it does not satisfy the requirements of Sec.33 of the Evidence Act (for short, “the Act”). It is contended by the learned counsel that there was no evidence to show that it was on account of the treatment or consequent death of PW2 that he was not available for cross examination at the relevant time. 10. So far as evidence of PW2 is concerned, I referred to what the Advocate Commissioner has recorded in the deposition that cross examination had to be stopped since the witness had to proceed to Ernakulam and then to Madras for treatment. Sec.33 of the Act deals with the relevancy of certain evidence for proving, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the court considers unreasonable. The proviso thereto says that for acceptance of such evidence, the proceeding should have been between the same parties or their representatives in interest, the adverse party in the first proceeding had the right and opportunity to cross examine and the questions in 5 RSA No.800/2004 issue were substantially the same in the first as in the second proceeding. 11. In this case there is no application of clauses 1 and 3 of the proviso to Sec.33 of the Act and the question is whether the second clause, i.e. respondent had the right and opportunity to cross examine PW2 is satisfied. 12. In **Food Inspector v. James (1997 (2) KLT 961)** a learned Judge of this Court has held that when the witness dies after chief examination but before cross examination, his evidence does not become inadmissible. In **John Manjooran v. C.M.Stephen & another (1973 KLT 376)** it is held that if a witness is not examined in full in chief and allowed to be cross examined, that evidence cannot be considered except in the circumstances mentioned in Sec.33 of the Act. In paragraph 22 of the decision learned Judge has referred to the observations in **Phani Bhusan v. Sibakali Basu (AIR 1952 Calcutta 218)** that unless examination of a witness is complete, ie., unless he has been crossexamined and re-examined or unless his cross examination or re-examination has been declined, his evidence cannot be considered except in the circumstances mentioned in Sec.33 of the Act. Learned counsel for appellant has referred to me the decision in **Mangal Sen v. Emperor (AIR 1929 Lahore 840(2))** where also it is held that evidence of witness not cross examined is admissible but weight to be attached to it depends upon circumstances of each case. In that case after initial examination of the witness was over he was under such illness that he could not attend the court and answer the questions put to him. My attention is also drawn to the commentaries to Sec.138 of the Act where it is stated that when a witness dies after examination in chief and before 6 RSA No.800/2004 cross examination, the evidence is admissible but its probative value may be very small and may even be disregarded. 13. In the present case, no evidence is let in to show, as fairly conceded by the learned counsel for appellant also, under what circumstances PW2 was not available for further cross examination at the relevant time. Appellant had to tender PW2 for further cross examination or show that either due to illness or death he could not be so tendered at the relevant time. In the absence of such evidence, the evidence of PW2 cannot be taken into account as failure to cross examine PW2 further, was not due to any fault of the respondent. Even otherwise, it is relevant to note that first appellate court has not placed reliance on the evidence of PW2 and instead, found that his evidence is contradictory to the version of appellant. 14. I have been referred to I.A.No.284 of 2002 where a request was made in the first appellate court to receive additional evidence and mark the copy of plaints in O.S.Nos.357 and 360 of 1994. It is not in dispute that on the premise that appellant is the power of attorney holder of respondent, he had let out certain rooms in the building after its construction was completed and respondent filed the above said suits for recovery of possession of the rooms from the tenants impleading the appellant also a party contending that appellant has unauthorisedly put the tenants in occupation of the rooms. Trial court decreed the suits on 29.06.1996 against which defendants filed A.S.Nos.637 and 640 of 1996. Ext.A1 is the copy of judgment of this Court in the appeals. Appeal arising from the judgment and decree in O.S.No.357 of 1994 was allowed and 7 RSA No.800/2004 that suit was dismissed while the judgment and decree in O.S.No.360 of 1994 were confirmed. 15. Learned counsel for appellant points out from paragraph 5 of the copy of plaint produced along with I.A.No.284 of 2002 that there, there is a positive admission made by the respondent that appellant was engaged to supervise construction of the building. I have been referred to paragraph 5 of the plaint in O.S.Nos.357 and 360 of 1994 produced along with I.A.No.284 of 2002. There, what is stated is that respondent came to his native place from Beharain where he is employed and before he returned to Beharain he instructed the engineer and the contractor (engaged for construction of the building) to complete the furnishing work by the time he comes back to his native place. He told the engineer and the contractor that money for the said purpose was entrusted to the appellant who also was asked to take care of the work and ensure completion of the work before he returned to his native place. 16. I am unable to accept the above averments in paragraph 5 of the plaint in O.S.Nos.357 and 360 of 1994 as amounting to an admission of engaging the appellant for supervision of the construction work. To say that appellant was engaged for supervision of the construction work is one thing and to say that the engineer and contractor who were engaged for construction of the work were directed to complete the finishing work of the building and that the money for purpose was entrusted to the appellant who also was asked to take care of and ensure that the finishing work is completed by the engineer and contractor are entirely different. I do not find any admission on the part of 8 RSA No.800/2004 respondent as to the dispute involved in this case. 17. No doubt, learned Additional District Judge ought to have disposed of I.A.No.284 of 2002 by appropriate order which is not seen done. But for the said reason a remand of the case is not required. Nor does the documents advance the case of appellant. For, even if paragraph 5 of the plaint in O.S.Nos.357 and 360 of 1994 is accepted, I am of the view that it does not amount to any admission on the part of the respondent of the engagement pleaded by the appellant. 18. Coming back to the evidence on record, appellant stated as PW1 that he was engaged by the respondent to supervise construction of the building on the terms first above stated while it is denied by the respondent as DW1. Learned counsel has invited my attention to paragraphs 16, 17 and 19 of Ext.A1, judgment. In paragraph 16, this Court stated that the case putforward in the written statement (in O.S.No.357 and 360 of 1994) is that by words and means respondent has held out the appellant as his agent. In paragraph 17, it is stated that the case of respondent in the plaint in O.S.Nos.357 and 360 of 1994 is that he had requested the appellant to supervise construction of the building in his absence and also get money from the wife of the respondent and pay to the engineer and contractor. In paragraph 19 of Ext.A1, judgment, it is stated that circumstances will prove that appellant was associated in the construction of the building and leasing out the rooms. This Court accepted the version of the appellant that he was acting as the power of attorney of the respondent. Assuming so, that does not mean that he was engaged to supervise the 9 RSA No.800/2004 construction work. 19. Evidence let in by the appellant was found not satisfactory by the courts below. When examined as PW1, appellant frankly conceded that he does not have the expertise or technical know-how to supervise construction of a commercial building. Unless appellant has the technical know-how and expertise, it was unlikely that he would have been engaged to supervise the construction particularly when the construction was entrusted to an engineer and a contractor. It also came in evidence that the appellant was residing 30 miles away from the site of construction. 20. First appellate court, referring to the evidence of PW2 (which the first appellate court said, cannot be brushed aside in toto) stated that as per version of PWs 1 and 2, the date of mediation and engagement of appellant as supervisor differ. Learned counsel for respondent points out from Exts.B3 and B4 that respondent got approved plan and permit only on 310.10.1991 while according to the appellant, the mediation and his engagement as supervisor was on 12.06.1990. According to the learned counsel, there was no reason why such an engagement should have been made even before respondent got the approved plan and permit. It is also pointed out by the learned counsel for respondent from the judgment of the first appellate court that in cross examination, PW2 stated the time of mediation as towards the end of 1988 while according to the appellant it was on 12.06.1990. 21. Evidence does not reveal that as claimed by the appellant he was engaged to supervise the construction work. If that be so, Sec.70 of the 10 RSA No.800/2004 Contract Act has no application. The question whether on account of appellant being (allegedly) held out as power of attorney of the respondent, he is entitled to any remuneration is not required to be decided in this case. 22. It is seen that courts below have saddled the appellant with liability to pay cost. True, awarding of cost is within the discretion of the court. But that discretion has to be exercised in a judicious manner. Having regard to the rival contentions and considering the fact that parties are closely related I am inclined to think that courts below are not correct in ordering cost to be paid by appellant while non-suiting him. Hence I am inclined to interfere that part of the decrees of the courts below. 23. The substantial questions of law raised is answered as above. Second appeal is allowed in part. Judgment and decree of the learned I Additional District Judge, Kozhikode in A.S.No.51 of 1999 and of learned Sub Judge, Vadakara in O.S.No.9 of 1997 to the extend it related to payment of costs to the respondent are set aside. In other respects, those judgment and decree will stand confirmed. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**