1.0. Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant to quash and set aside the impugned judgment and order dated 4.12.2007 passed by the learned Appellate Court -learned 2nd Additional District Judge, Sabarkantha
-Himatnagar passed in Regular Civil Appeal No.46 of 2006, by which, the learned Appellate Court has partly allowed the said appeal preferred by the respondent herein -original plaintiff and has quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit.
2.0. The respondent herein-original plaintiff- Contractor preferred Special Civil Suit No.36 of 1993 against the appellant herein in the Court of learned Civil Judge (S.D.), Himatnagar for recovery of Rs.4,93,720.30 on various counts such as refund of security deposit i.e. Rs.3552/-; Rs. 3170/- for remaining work to be paid for the work of extra item; Rs.37,755.30 for the cost of collapsed Deck slab along with MS reinforcement at the tender rate; Rs.77,395/- on account of the extra cost due to collapse of the centering; Rs. 1,58,848/- on account of extra expenditure on overhead and establishment on account of stoppage of work due to breaches committed by the department; Rs. 2,13,000/- for extra expenditure on idle labour due to stoppage of work, thus in all Rs.4,93,720.30. That the suit was resisted by the defendant by filing written statement at Exh.71 denying the allegations in the suit. It was specifically submitted that the suit is barred by law of limitation. That the learned trial Court framed the issue at Exh.72. Both the sides led the oral evidence at Exhs. 84, 128 and 133 and led the documentary evidences at Exhs. 98 to 107, 124 and 125 and 134 to 142. That on appreciation of evidence, the learned trial Court specifically held that the suit is barred by law of limitation. The learned trial Court also held in favour of the defendant and specifically held that there was no breach of conditions of the tender and that there was no negligence on the part of the defendant and in fact it was the plaintiff who was negligent due to which the slab collapsed. Consequently, learned trial Court dismissed the suit by judgment and order dated 7.7.2006.
2.1. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court dismissing the suit, the original plaintiff preferred Regular Civil Appeal No. 46 of 2006 and the learned Appellate Court has partly allowed the said appeal holding that plaintiff is entitled to Rs. 1,33,377.30 on the count of damages with 12% interest.
2.2. Being aggrieved and dissatisfied with the judgment and order passed by the learned Appellate Court, the appellant herein-original defendant has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3.0. Shri Dave, learned AGP appearing on behalf of the appellant-original defendant has submitted that the learned Appellate Court has materially erred in partly allowing the appeal and quashed and set aside the judgment and decree passed by the learned trial Court. It is submitted that though the learned trial Court dismissed the suit on the ground that the suit is barred by law of limitation, the learned Appellate Court has not considered the question of law of limitation and has not even framed point for determination and the issue with respect to the limitation. It is submitted that even otherwise on merits also the learned Appellate Court has materially erred in holding that the plaintiff is entitled to Rs. 1,33,377.30 under the head of damages suffered on collapsing of deck slab; forfeiting the amount of deposit; expenses for extra items-cost of the collapsed slab at the tender rate. It is submitted that as such it was the plaintiff who was responsible and negligent due to which Deck slab collapsed and in fact the Government was required to pay damages / compensation to the injured. Therefore, it is requested to allow the present appeal.
4.0. Though, served nobody appears on behalf of the respondent-Contractor.
5.0. Heard Shri Pranav Dave, learned AGP for the appellant and considered the impugned judgment and order passed by both the Courts below as well as the relevant documents and the evidence on record from the Record and Proceedings received from the learned trial Court.
5.1. At the outset, it is required to be noted that the learned trial Court dismissed the suit on the ground that the suit is barred by law of limitation and despite the same learned Appellate Court has partly allowed the appeal without deciding the issue with respect to limitation. From the impugned judgment and order passed by the learned Appellate Court, it appears that the learned Appellate Court has not considered the issue with respect to the law of limitation at all. Even no point for determination has been raised by the learned Appellate Court with respect to limitation. Under the circumstances, on that ground alone the impugned judgment and order passed by the learned Appellate Court deserve to be quashed and set aside.
5.2. Even on merits also the learned Appellate Court is not justifying in awarding Rs.88,900/- under the head of damages suffered for collapsing of deck slab as well as cost of collapsed slab at the tender rate. From the evidence on record, it appears that it was the plaintiff who was responsible and / or negligent for collapsing of deck slab. The learned Appellate Court has not properly appreciated the issue with respect to negligence and / or cost for collapsing deck slab. Under the circumstances and even on merits also, the impugned judgment and order passed by the learned Appellate Court deserve to be quashed and set aside.
6.0. In view of the above and for the reasons stated above, present appeal succeeds and the impugned judgment and order dated 4.12.2007 passed by the learned Appellate Court -learned 2nd Additional District Judge, Sabarkantha -Himatnagar passed in Regular Civil Appeal No.46 of 2006 is hereby quashed and set aside and the judgment and decree passed by the learned trial Court passed in Special Civil Suit No. 36 of 1993 is hereby restored. Present Second Appeal is allowed to the aforesaid extent. No costs.
sd/-
( M. R. Shah, J. ) "kaushik"
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