Page No.# 1/8 GAHC010013442025 2025:GAU-AS:5248 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/11/2025 RITUPARNA BAISHYA SAUD S/O LATE CHAPAL KUMAR BAISHYA, RESIDENT OF HOUSE NO. 4, SAUD BHAWAN, SANTI RAM DAS PATH, REHABARI, GUWAHATI 781001, DIST. KAMRUP M ASSAM VERSUS ARYA VIDYAPEETH COLLEGE AND ORS A K AZAD ROAD, ARYA NAGAR, GUWAHATI, KAMRUP M ASSAM 781016 REP. BY ITS PRINCIPAL 2:THE PRINCIPAL ARYA VIDYAPEETH COLLEGE A K AZAD ROAD ARYA NAGAR GUWAHATI 781006 KAMRUP M ASSAM 3:THE GOVERNING BODY ARYA VIDYAPEETH COLLEGE A K AZAD ROAD ARYA NAGAR GUWAHATI 781006 KAMRUP M ASSAM REP. BY THE PRESIDENT 4:HEMEN SARMA ENGINEER ARYA VIDYAPEETH COLLEGE A K AZAD ROAD ARYA NAGAR GUWAHATI 781006 Page No.# 2/8 KAMRUP M ASSA Advocate for the Petitioner : MS M SAHOO, MR. M UDDIN,MR. M BERIA,MR. N N JHA Advocate for the Respondent : , BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER 24.04.2025 1. Heard Mr. N.N. Jha, the learned counsel for the appellant. 2. This Regular Second Appeal has been filed under Section 100 of the Code of Civil Procedure, 1908, by the appellant, namely, Sri Rituparna Baishya Saud impugning the Judgment and Decree dated 30.10.2024, passed in Money Appeal No. 24/2023 by the Court of the learned District Judge,Kamrup (M), Guwahati whereby, the ex-parte Judgment and Decree passed by the Court of the learned Civil Judge No. 2, Kamrup(M), in Money Suit No. 213/2017 on 01.07.2019 was upheld by the aforesaid Judgment and Decree. The Trial Court has dismissed the Money Suit filed by the present appellant as plaintiff. 3. The brief facts involved in this appeal are that the appellant as a plaintiff had filed a Money Suit which was registered as Money Suit No. 213/2017 before the Court of the learned Civil Judge (Senior Division) No. 2, Kamrup(M) against the respondents for realisation of an amount of Rs. 4,89,226/- along with the interest for work executed in constructing the boundary walls of the girls’ hostel of the Arya Vidyapeeth College. In the said suit, summonses were issued to the defendants. However, when they remained absent, the suit was ordered to proceed ex-parte and accordingly, following points for determination were framed by the Trial Court. Page No.# 3/8 “1. Whether the plaintiff was allotted work order to construct the boundary wall of the Girls Hostel of Arya Vidyapith College at Guwahati? 2. Whether the plaintiff completed work to the tune of Rs.8,89,226/-? 3. Whether the plaintiff is entitled to receive an amount of Rs.4,89,226/- from the defendants? 4. Whether the plaintiff is entitled to the judgment and decree as prayed for? 5. To what other relief(s) the parties are entitled?” 4. The present appellant as plaintiff adduced the evidence of two witnesses and also exhibited certain documents. However, by the Judgment dated 01.07.2019, the Trial Court decided the point Nos. 2 and 3 against the plaintiff on the ground that he was unable to show that he executed the entire work amounting to Rs. 8,89,226/- and he also failed to show that there was miscalculation of the bill of Rs. 6,22,000/-(Rupees Six Lakhs Twenty Two Thousand only). The suit was therefore dismissed. 5. Being aggrieved by the aforesaid dismissal, the present appellant preferred an appeal before the Court of the learned District Judge, Kamrup (M). The said appeal was registered as Money Appeal No. 24/2023. In the said appeal after considering the grounds taken by the appellant in his memo of appeal following point for determination was formulated by the First Appellate Court. Whether there was sufficient evidence to prove that the appellant had executed work of Rs. 8,89,226/- and the engineer also estimated it to the tune of Rs.6,22,000/- Page No.# 4/8 inspite of which, the appellant was paid a sum of Rs. 3,99,960/-only, upon compelling him to abandone his work by not providing him congenial environment to complete his work order by the respondents as required under Section 67 of the Indian Contract Act, 1872, which position of law and facts were ignored by the learned trial court for which the appellant is entitled to receive the remaining amount of Rs. 4,89,226/-alongwith interests-present, future and pendente lite-accrued thereon, as prayed for by the appellant; and the learned trial court erred both in law as well as in facts in passing the impugned judgment and decree calling for interference? 6. However, after considering the submissions of the learned counsel for both the sides, the First Appellate Court had held that the appellant had failed to prove that he had executed the work to the tune of Rs. 8,89,226/- as well as that it was the respondents, who had stopped the appellant from executing the entire work and accordingly, dismissed the appeal by upholding the Judgment and Decree of the Trial Court. 7. In the instant case, Regular Second Appeal in the memorandum of appeal the present appellant, had stated the following substantial question(s) of law:- “1. Whether unrebutted pleadings and evidence of the plaintiff require further proof as per law? 2. Whether the judgment and decree passed by the Learned Courts below is sustainable in the eye of law? 3. Whether the courts below erred in law by misapplying Page No.# 5/8 the principles governing burden of proof in ex-parte proceedings, particularly in light of Order VIII Rule 5 of the Code of Civil Procedure, 1908, and Sections 104 and 105 of the Bharatiya Sakshya Adhiniyam, 2023? 4. Whether the courts below erred in law by imposing an excessively stringent standard of proof on the appellant in an ex-parte proceeding, contrary to settled legal principles? 5. Whether the courts below erred in law by failing to draw an adverse inference against the respondents for their non- appearance and non-contestation of the suit, as per established legal principles? 6. Whether the courts below erred in law by not properly interpreting and applying Section 67 of the Indian Contract Act, 1872, in relation to the respondents' alleged failure to provide reasonable facilities for the performance of the contract?” 8. During the course of hearing under Order 41 of the Code of Civil Procedure, 1908, it was observed by this Court that the substantial questions of law which is required to be precisely stated in the memorandum of appeal, has not been so stated and accordingly, the appellant was allowed to submit precise substantial questions of law involved in this appeal. Accordingly, following additional substantial questions of law were submitted by the appellant. “1. Whether, in the absence of a formal contract presented by the appellant, and in light of the respondents' failure to provide a safe working environment, the learned District Judge erred in law by placing the burden of proof Page No.# 6/8 solely on the appellant to establish the precise terms of the contract and the extent of the work completed, thereby failing to adequately consider the principles of Section 67 of the Indian Contract Act, 1872, and the potential for the respondents' actions to have frustrated the appellant's ability to fully perform the contract? 2. Whether, in a contract dispute where the defendant, despite being served with summons, fails to contest the suit, the courts below is justified in dismissing the claim based on the plaintiff's failure to produce the formal contract documents and other supporting evidence, particularly when the defendant's non-appearance prevented the plaintiff from cross-examining the defendant's witnesses and challenging their version of events, and when the defendant has already made a partial payment for the work done?” 9. It appears that in this case, the Money Suit proceeded ex-parte against the defendant. However, the said suit was dismissed on the ground that the plaintiff(appellant) failed to prove that he rendered works amounting to Rs. 8,89,226/- and also failed to prove that the respondents instructed him to stop the construction of work. The First Appellate Court also upheld the judgment of the Trial Court on the ground that the burden of proving that the plaintiff had rendered work to the tune of Rs. 8,89,226/- was on the plaintiff. It also held that burden of proving that the engineer had wrongly made the estimate of the work done to the tune of Rs.6,22,000/- was also on the plaintiff, however, the plaintiff could not prove the same by producing the relevant documents in that Page No.# 7/8 regard. The First Appellate Court also upheld the judgment of the Trial Court as the plaintiff did not exhibited and proved the contract on the basis of which he was claiming the realisation of unpaid money. It also observed that as the terms of contract were not available before either the Trial Court or the First Appellate Court and none of the witnesses have stated anything regarding the terms and conditions of the contract and hence, there is nothing on record to show that the respondents neglected to keep their promise of providing reasonable facility to the applicant for executing the work. 10. On a bare perusal of the impugned judgment of the First Appellate Court, it appears that it is a well reasoned decision wherein, all the aspects of facts involved and laws applicable are properly discussed while upholding the judgment of the Trial Court. 11. It is well settled that a second appeal can be filed only if a substantial questions of law is involved in the case. The memorandum of appeal must precisely state the substantial questions of law involved and this Court has to satisfy itself regarding the existence of such a question. 12. In the instant case, the memorandum of appeal mentions seeks questions which, in the considered opinion of this Court are not substantial questions of law. It is a settled legal principle that the burden of prove lies upon him who affirms and not on him who denies and the facts of this case shows that by applying this principle both the Courts were satisfied that the appellant failed to relieve the burden of proving his case. The additional substantial questions of law submitted by the appellant are also not substantial questions of law as unless the contract itself is produced before the Court and unless, there is other evidence regarding the terms and conditions of the contract. The Court would not be in a position to ascertain the terms of such contract so as to Page No.# 8/8 determine the applicability of Section 67 of the Indian Contract Act, 1872 to the facts and circumstances of the case and this is what has been done by both the Trial Court as well as the First Appellate Court. It is also settled that in exercise of powers under Section 100 of the Code of Civil Procedure, 1908, this Court cannot interfere in the concurrent findings of facts of the Trial Court as well as the First Appellate Court without there being any sufficient and just reason for the same. 13. In a civil suit, the plaintiff has to prove his case on the basis of evidence produced by him. The decree of prove is on the basis of preponderance of probability and it is for the Courts dealing with facts, i.e. the Trial Court as well as the First Appellate Court to consider as to whether the plaintiffs has been able to prove his case on the basis of preponderance of probability. However, in the instant case, both the Courts gave a concurrent finding that the plaintiff has failed to prove his case and have given valid reasons for arriving at the said conclusion. 14. This Court finds that no substantial questions of law are involved in this case, so as to unsettle the concurrent findings of the Trial Court as well as the First Appellate Court. 15. This Regular Second Appeal is accordingly dismissed. JUDGE Comparing Assistant