2025:HHC:29204 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 528 of 2016 Reserved on: 20.8.2025 Date of decision: 29.8.2025. M.C. Shimla ...Appellant Versus Tara Chand ...Respondent Coram: The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1No. For the appellant: Mr. Mukul Sood, Advocate, For the respondent: Mr. Ashok Kumar Sood, Sr. Advocate with Mr. Abhishek Banta, Advocate. Satyen Vaidya, Judge (oral): This Regular Second Appeal under Section 100 of the Code of Civil Procedure (for short, the Code)has been filed against the judgment and decree dated 30.7.2016, passed by the learned Additional District Judge (1), Shimla in Civil Appeal No. 5-S/13 of 2016, whereby the judgment and decree dated 28.11.2015, passed by the learned Civil Judge (Sr. Division) Shimla, in Civil Suit No. 109-1 of 2011 has been affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment? -2- 2. The suit of the respondent/plaintiff has been decreed for the recovery of Rs. 1,75,200/- along with interest at the rate of 9% per annum from the date of filing of the suit till realization of entire decretal amount. 3. Respondent/plaintiff filed a suit for recovery of Rs. 2,39,300/- against the appellant/defendant on account of unpaid amount of the construction work carried by the plaintiff for the defendant. 4. The case as set up by the plaintiff was that he was a contractor by profession. The defendant had awarded to plaintiff work of restoration of path from Om Vihar to New Shimla Nallah in Ward No. 23, Shimla, in February, 2006. In addition to the awarded work, the field officers of the defendant i.e. Executive Engineer, Assistant Engineer and Junior Engineer made the plaintiff to execute additional work with promise to pay for such work. The plaintiff alleged that he had executed additional work worth Rs. 1,75,200/- but later the defendant refused to pay the said amount, forcing the plaintiff to file the suit. -3- 5. The plaintiff before filing the suit, issued statutory notice under Section 392 of the Himachal Pradesh Municipal Corporation Act to the defendant. 6. The defendant in its written statement denied the liability to pay the suit amount to the plaintiff. It was stated that no record, with respect to the additional work allegedly executed by the plaintiff, was available with the defendant. It was also the case of the defendant that had the additional work been got executed form the plaintiff, his final bill for original work would not have been satisfied. 7. Learned trial Court framed the following issues:- “i) Whether the plaintiff had executed various additional works besides the work awarded to him vide letter dated 2.6.2008 by the defendant on the oral instructions of the Executive Engineer of the defendant Corporation, as alleged? OPP ii) If issue No.1 is proved in affirmative, whether the plaintiff is entitled to recover a sum of Rs. 2,39,300/- i.e. Rs. 1,75,200/- being the amount of additional work executed, Rs. 63,000/- being interest @ 12% per annum calculated up till the institution of the instant suit, Rs. 1100/- being cost of the notice with future interest @ 12% per annum from the date of institution of instant suit till the liquidation of the entire amount? OPP. iii) Whether the suit filed is not maintainable? OPD iv) Relief.” -4- 8. Issue No.1 was answered in affirmative and Issue No.2 was answered partially in affirmative. Issue No.3 was answered in negative. The suit of the plaintiff was partly decreed. A decree of Rs. 1,75,200/- along with interest at the rate of 9% per annum from the date of filing of the suit till realization of the amount was decreed. The claim of the plaintiff for Rs. 63,000/- being interest calculated at the rate of 12% per annum on Rs. 1,75,200/- till the date of filing of the suit was declined. 9. The judgment passed by the learned trial Court was assailed in First Appeal under Section 96 of the Code by the defendant. The plaintiff also filed cross-objections. Learned First Appellate Court vide impugned judgment and decree has dismissed the appeal as well as cross- objections. The judgment and decree passed by the learned trial Court has been maintained. 10. The instant appeal was admitted on the following question of law on 20.12.2016: - “Whether the work executed by the contractor qua which under the concurrently recorded renditions of both the learned Courts below a money decree in consonance with the work executed by the contractor -5- stands pronounced vis-à-vis the Contractor, did entitle him to obtain the impugned judgments and decrees from both the learned Courts below? 11. I have heard learned counsel for the parties and have also gone through the record carefully. 12. The learned trial Court has held the plaintiff entitled to a sum of Rs. 1,75,200/- on the basis of findings to the effect firstly that the defendant had not specifically denied the execution of additional work by the plaintiff, secondly that the version of the plaintiff was corroborated by the oral testimony rendered by PWs 3 and 5 and lastly the defendant had failed to substantiate its defence by leading cogent evidence. 13. In its written statement, the defendant had raised the contest only on the ground that the records with respect to additional works allegedly carried by the plaintiff were not available with it. There has been no specific denial that the additional work as alleged by the plaintiff was not carried by him at all. 14. The plaintiff has examined PW-5 as an expert witness, who has proved that he had visited the site of the work and had inspected the site. He had prepared -6- estimate of cost with details of measurement and layout plan with rough sketch of the site. According to this witness, a technical report was prepared by him which was placed on record as Ext. PW-5/A. Abstract of estimate of cost Ext. PW-5/B to Ext. PW-5/E were also proved on record. In addition, the site plan Ext. PW-5/F and Ext. PW-5/G were also stated to have been prepared by the said witness according to the factual site condition. 15. The version of PW-5 with respect to his spot visit and preparation of document on the basis of site condition did not face any serious challenge by way of cross- examination. While cross examining PW-5, unsuccessful effort was made to challenge the correctness of the report as also the documents prepared and submitted by him. The fact of the matter remains that the plaintiff had been able to place on record the corroborative evidence in the shape of the site report, according to which, additional work had been executed on the spot. On the other hand, the defendant had failed to place on record any contrary report to suggest that the report Ext. PW-5/A prepared by PW-5 was not according to spot position. -7- 16. In addition, it can be seen that suggestions were put to the other witnesses of plaintiff to the effect that the additional work had been carried by the plaintiff at his own. In this manner, the defendant impliedly had admitted the execution of additional work, though according to the defendant, it was done by the plaintiff without authorization. The defendant is a statutory authority, looking after the public developmental works within the limits of Municipal Corporation, Shimla. It is not understandable as to why a contractor would execute work more than the work awarded to him, at his own. 17. It is the case of the plaintiff that he had been impressing upon the field officers to prepare the formal documents before getting additional work executed from the plaintiff and in this view of the matter, it was an admitted position that no record was prepared. Thus, the only question was whether the additional work was got executed from the plaintiff. As noticed above, the learned trial Court has held the issue in favour of the plaintiff on the basis of the correct appreciation of evidence. This Court while sitting in regular second appeal does not find -8- any reason to take a different view than the one taken by the learned trial Court, more particularly, when the findings of fact recorded by the learned trial Court have been affirmed by the learned First Appellate Court on re- appreciation of evidence. 18. It is trite that this Court in regular second appeal will not interfere in the concurrent findings of fact unless such findings are found to be perverse and against the material proved on record. Learned counsel for the appellant has not been able to point out any illegality or perversity in the findings of fact recorded by both the Courts below. 19. Thus, no interference is required by this Court and the substantial question of law, as framed in this appeal is answered accordingly. 20. In result, the appeal fails and is accordingly dismissed. Pending applications, if any, also stand disposed of. Decree sheet be prepared accordingly. Records be sent back forthwith. (Satyen Vaidya) 29th August, 2025. Judge (kck)