1. The present second appeal u/s.100 of the Code of Civil Procedure has been preferred by the appellant herein – original defendant No.2 - respondent No.3 in appeal to quash and set aside the impugned judgement and order dated 29/06/2012 passed by learned 6th Additional District Judge, Gondal, Camp at Jetpur in Regular Civil Appeal No.30 of 2008, by which, an appeal preferred by the original defendant No.1 - respondent No.1 herein has been partly allowed and learned Appellate Court has modified the judgement and decree passed by learned Trial Court in Special Civil Suit No.51 of 2003 to the extent by observing that respondent No.1 herein – Nagarpalika may take action for recovery the same from the Contractor i.e. appellant herein - original defendant No.2.
2. Facts leading to the present second appeal, in nutshell, are as under:
That respondent Nos.2 & 3 herein - original plaintiffs instituted Special Civil Suit No.51 of 2003 against the original defendants - appellants as well as respondent No.1 claiming compensation of Rs.5 Lacs for the death of their minor child, aged about 3 years, who died by falling in the water tank, which was constructed by appellant herein - original defendant No.2 - Contractor, which was on the land vested and belonging to the Nagarpalika, which was constructed while constructing Community Hall.
It was the case on behalf of the original plaintiffs that while constructing Community Hall belonging to the Nagarpalika, contract was awarded to original defendant No.2, who constructed the water tank, out of which, due to their negligence and absolute careless, the same was kept open and no sufficient safety measures were taken for providing protection to the public and minor son of the plaintiffs aged about 3 years fell down and died.
The suit was resisted by original defendants by filing different written statements. It was the case on behalf of defendant No.1 that defendant No.1 cannot be said to be negligent and careless for incident in question and for keeping water tank open. Relying upon the contract, it was submitted that it was duty of defendant No.2 to take all protective measures. It was the case on behalf of defendant No.1 that as such water tank was not constructed by Nagarpalika but by the Contractor while putting construction of Community Hall.
3. On the other hand, defendant No.2 denied the averments and allegations made in the plaint. It was the case on behalf of the original defendant No.2 that as the construction of Community Hall was already completed and possession of Community Hall and land in question was handed over to Nagarpalika and, therefore, for whatever had happened, thereafter defendant No.2 cannot be held liable and responsible and it was the responsibility of original defendant No.1 - Nagarpalika. Learned Trial Court framed issues. Both the parties led evidence documentary as well as oral. That on appreciation of evidence, learned Trial Court held that son of the plaintiffs died due to the negligence on the part of the defendants in not taking proper steps for protection of public. However considering the fact that the contract period and even extended period was already over, Contractor cannot be held liable and responsible and, therefore, learned Trial Court by judgement and decree partly allowed the suit holding original defendant No.1- Nagarpalika only liable to pay compensation to the plaintiffs.
4. Being aggrieved by and dissatisfied with the judgement and decree passed by learned Trial Court in holding original defendant No.1 only as negligent and liable to pay compensation to the plaintiffs, original defendant No.1 preferred Regular Civil Appeal No.30 of 2008 before learned District Court, Rajkot and learned Appellate Court i.e. learned 6th Additional District Judge, Gondal, Camp at Jetpur by impugned judgement and order has though confirmed judgement and decree passed by learned Trial Court, however considered the Contract and clauses mentioned in the Contract entered between defendant Nos.1 and 2 and held the Contractor also liable to pay compensation by further observing that defendant No.2 has failed to prove that actual possession of the Community Hall and land in question was handed over to the Nagarpalika, as alleged. Consequently, learned Appellate Court has modified judgement and decree passed by learned Trial Court by holding respondent No.2 also liable and while confirming the judgement and decree passed by learned Trial Court, learned Appellate Court has observed and held that original defendant No.1 - Nagarpalika may also take action for recovery of same from the Contractor.
5. Being aggrieved by and dissatisfied with the judgement and order passed by learned Appellate Court in modifying the judgement and decree passed by learned Trial Court so far as observing and holding that defendant No.2 for taking recovery of amount from the Contractor-original defendant No.2, the appellant herein - original defendant No.2 has preferred the present second appeal u/s.100 of the Code of Civil Procedure.
6. Mr.S.M.Shah, learned advocate appearing on behalf of the appellant herein - original defendant No.2 has suggested the following substantial questions of law:
“(1) Whether the decree of suit as framed can be modified in favour of the defendant No.1 against the defendant No.2?
(2) Whether the decree cannot be modified on point which is not the subject matter of the suit?
(3) Whether decree can be passed declaring right to sue in favour of the defendant No.1?
(4) Whether Appellate Court can grant relief in appeal which is not the subject matter of the case or claim in suit and which was not prayed for?”
Mr.S.M.Shah, learned advocate appearing on behalf of the appellant herein - original defendant No.2 has vehemently submitted that as such there was no prayer in the appeal before learned Appellate Court to hold defendant No.2 liable and no point for determination was framed by learned Appellate Court to hold defendant No.2 liable to pay compensation. It is submitted that despite the above, learned Appellate Court has modified the judgement and decree passed by learned Trial Court, which is not permissible.
7. Having heard Mr.S.M.Shah, learned advocate appearing on behalf of the appellant herein and considering the appeal memo, it can be said that in appeal, respondent No.1 - original defendant No.1 has categorically and specifically made grievance that learned Trial Court has committed an error in holding defendant No.1 only responsible and liable to pay compensation. In the appeal memo, it was specifically stated that learned Trial Court has materially erred in not holding defendant No.2 liable to pay compensation and not holding him negligent and not passing any decree/order against him. Ground Nos.9, 11, 17, 18, 19 and 20 are with respect to making grievance against the judgement and decree passed by learned Trial Court not holding defendant No.2 as negligent and liable to pay compensation and exonerating him. Even point No.2 in Point for determination is also very clear. Under the circumstances, as such there was prayer to hold defendant No.2 liable and no grievance was made before learned Appellate Court against the judgement and decree and not holding defendant No.2 liable and negligent. Under the circumstances and considering the evidence on record more particularly Contract between defendant Nos.1 and 2 and considering the fact that water tank was constructed by defendant No.2 while putting up construction of Community Hall and it has been held that defendant No.2 has failed to prove that actual possession of the Community Hall and land in question was handed over to the Nagarpalika and at the relevant time, Contractor was found to be in possession, no illegality has been committed by learned Appellate Court in holding defendant No.2 as negligent and liable to pay compensation and observing that it will be open for defendant No.1 to recover the amount of compensation from defendant No.2 and such a direction and observation is inconsonance with the Contract between defendant Nos.1 and 2. Even this Court has also considered the reasoning given by learned Appellate Court and it appears that learned Trial Court had committed an error exonerated defendant No.2 on the ground that the contract period/extended period is over and, therefore, defendant No.2 cannot be held liable. It appears that learned Trial Court had not considered that even Contract period might have been over still defendant No.2 was in possession of the Community Hall and land in question and nothing is on record that actual possession of Community Hall and land in question was handed over to the defendant No.1- Nagarpalika. Under the circumstances, possession of the Community Hall and land was not handed over to the defendant No.1-Nagarpalika, liability and responsibility of defendant No.2 shall continue.
8. In view of the above and for the reasons stated hereinabove, there is no substance in the present second appeal and the same deserves to be dismissed and is accordingly dismissed. No costs.
[M.R.SHAH,J] *dipti