C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 1338 of 2004 With CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025 In R/FIRST APPEAL NO. 1338 of 2004 With CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2025 In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025 In R/FIRST APPEAL NO. 1338 of 2004 With R/CROSS OBJECTION NO. 136 of 2009 In R/FIRST APPEAL NO. 1338 of 2004 ========================================================== STATE OF GUJARAT & ORS. Versus VITTHALBHAI MADHAVLAL PATEL ========================================================== Appearance: MR BHARAT VYAS, AGP for the Appellant(s) No. 1,2,3,4 MR KG SUKHWANI(871) for the Defendant(s) No. 1 ========================================================== CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 11/03/2026 JUDGMENT 1. CA for condonation of delay is filed to condone the delay in preferring CA for bringing legal heirs of the sole respondent and to set aside the abatement. 2. Considering the averments made in the application, both the CAs are disposed of condoning the delay, setting aside the abatement and permitting the applicants to bring legal heirs of the respondent on record. Necessary amendment to be carried out forthwith. p. 1 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 3. Since deceased respondent has filed cross objection in the matter, the effect of this order is also given in the cross objection and accordingly, heirs of deceased respondent are permitted to be brought on record in the cross objection as well. Accordingly, amendment shall be carried out in the cross objection. 4. For the sake of convenience and brevity, parties are referred to as per their original status before the learned trial Court. 5. Present First Appeal is directed against the judgment and decree dated 25.9.2002 passed by the learned 3rd Joint Civil Judge (SD), Mehsana, whereby the defendants of the suit were directed to pay total amount of Rs.1,40,000/- with interest at the rate of 6% per annum to the plaintiff from filing of the suit till realization and accordingly, the suit was decreed. 6. The plaintiff has also filed the cross objection for recovery of Rs.6,44,875/- from the defendants. 7, Brief facts of the case are as under:- 7.1 The Plaintiff carries on business as contractor at the address shown in the cause title. The defendant No.2 Shri Hasmukhbhai G. Nayak Vi snagar Dy. Executive Engineer, R & B Sub Division, Shri R. G.Patel & Section Officer, Mr. Pandya all serving under the defendant No.1 approached the p. 2 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 plaintiff in the month of August. 1996 for executing the side filling earthwork in embankment from borrow pits and leads upto 50 meters to 1000 meters on both the sides of the road in average 2 meter width and average 0.25 meter high thickness between Vi snagar Umta Sundhia Kheralu Road Km. 21/00 to 41/2. 7.2 That all the above named officers prevailed upon the plaintiff and convinced that because of Ambaji Mata Bhadarva Poonam festival lacs of people and " Mataji Sanghas" take part in the festival by foot (Pagpala) and it is necessary to do the work. The officers however, expressed their difficulty to the effect that the work will not be approved by the defendant No.1 immediately and it will takes some time. 7.3 These officers directed the plaintiff to do the work and assured that the approval will be obtained from the defendant No.1. In the meantime the work should be started by the plaintiff. The Plaintiff accordingly on the assurance of these officers started the work under the supervision of these officers. The estimated cost of the work was Rs. 4,75,000/-. 7.4 That between 21/8/1996 to 03/09/1996, seven tractors were engaged for executing the work between 7.00 A.M. to 13.00 hours and 14.00 hours to 19.00 P.M and between 09-09- 1996 to 24-09-1996, once again, seven tractors were engaged for executing the work between 7.00 A.M. to 13.00 hours and 14.00 hours to 19.00 P.M. 7.5 The Section Officer had accordingly informed regarding p. 3 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 the execution of the work to the then concerned Executive Engineer. That one Shri Manubhai Patel had informed that the work was executed as per the oral instructions of the then Executive Engineer nemely Shri Hasmukhbhai G. Nayak. The work assistant Shri Bhagwanbhai Govindbhai Prajapati also informed the Executive Engineer regarding the execution of the work by the plaintiff as stated above. 7.6 After completing the works, payments were demanded from time to time personally by the plaintiff and on telephone. The plaintiff had also addressed various Registered Post A.D. letters from time to time to the Dy. Executive Engineer and Executive Engineer Viz. 19-11-1996. 26/11/1996, 08/12/1996, 18/12/1996,28/12/1996, 11/01/1997, 01/02/1997, 03/03/1997 & 10/03/1997. That though all these letters were duly served neither the Dy. Executive Engineer nor the Executive Engineer paid the amount to the plaintiff nor cared to reply these Registered Post. A.D. Letters. 7.7 That since the payment was not made and since the letters were not replied, the registered A.D. notices were served through advocate Shri Dinesh K. Shah on various dates. That in spite of the service of these notices the payment was not made nor the notices were replied. 7.8 Under these circumstances the plaintiff was compelled to serve the statutory notice as per the provisions of Section 80 of the Civil Procedure Code for the recovery of Rs. 4,69,000/- together with interest @18% per annum from 01/10/1996 till its realisation. Page 4 of 14 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 Since the defendants failed to rely the notice, the plaintiff has filed Special Civil Suit No.183 of 1998 before the learned trial Court. The learned trial Court vide judgment and decree dated 25.9.2002, directed the defendants to pay total amount of Rs.1,40,000/- with interest at the rate of 6% per annum to the plaintiff from filing of the suit till realization and accordingly and thus, partly decreed the suit. 7.9 Against aforesaid order, the defendants have filed the First Appeal u/s 96 of the Code of Civil Procedure, 1908 (in short “the Code”). Since, the learned trial Court has not granted decree as claimed by the plaintiff, the plaintiff has also filed the cross objection u/s 41 Rule 22 of the Code for recovery of Rs.6,44,875/- from the defendants. 8. Heard learned AGP Mr. Bharat Vyas for the defendants and learned advocate Mr. Sukhwani for the plaintiff. 9. It is a case where the plaintiff claimed decree of Rs.6,44,875/- with interest thereon on the basis that the plaintiff has completed the work of Rs.6,44,875/- as per work order and the defendants did not pay the amount due to the plaintiff for the work, the plaintiff has carried out. As against the aforesaid, the defendants came out with the defence that the suit has filed with the mala fide intention. The plaintiff for the reasons best known to him has not carried out the work, which was awarded to him under the work order and therefore, the plaintiff would not be entitled to claim any compensation. Page 5 of 14 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 10. Following issues were fixed by the learned trial Court at Exh.15:- “1. Whether the plaintiff proves that the plaintiff did disputed work due to assurance given by the defendant No.2 and his subordinate officers? 2. Whether plaintiff proves that Rs. 4,69,000/- (four lac sixty nine thousand) is due to the plaintiff ? 3. Whether plaintiff proves that the plaintiff is entitled to interest at the rate of 18% P.A. from the defendants? 4. Whether the suit is time barred ? 5. Whether the defendant proves that the suit is bad for want of necessary parties ? 6. Whether the defendants prove the suit is bad for want of notice u/s.80 of the C.P.C.? 7. Whether the plaintiff is entitled to decree as prayed for? in para 12 of the plaint? 8. What order and what decree ?” 11. Both the parties led oral and documentary evidence, after assessing evidence on record, the learned trial Court answered issue No.1 in affirmative, issue Nos.2,3 and 7 in partly affirmative, issue Nos.4 to 6 in negative and suit was partly decreed in the aforesaid terms while answering issue No.8. The issue called for in this First Appeal is that whether the learned Court below has committed serious error in passing decree of Rs.1,40,000/- with 6% interest and what order? Page 6 of 14 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 12. It is to be noted that the defendants question legality of passing the decree of Rs.1,40,000/-and claimed that the learned trial Court has committed serious error in passing the decree, whereas, the plaintiff ﬁled cross objection claiming that the learned trial Court has committed serious error in passing decree of meager amount and also granted interest much lesser than what could have been granted for commercial transaction. 13. The ﬁndings of the learned trial Court in regards to issue No.2 being gravamen to the rival submissions, reads as under:- “24. L.A. of Shri N.R. Bhavsar has argued before me that plaintiﬀ has handed over the suit work from the defendants oﬃcer and said fact has proved by plaintiﬀ. Defendants witness admitted in their deposition that plaintiﬀ has completed or the suit work within time. So far earth work in embankment by earth obtain from borrow pits plaintiﬀ has estimate the cost Rs.2,89,000/- at the rate of Rs. 17/- for quantity executed 17,000/- 1-sq meters so far earthwork in embankment by earth obtain from lead 50 mtrs. to 1000 mtrs. at the rate of Rs. 30/- for 3000/- sq. meters plaintiﬀ has estimated Rs.90,000/- and so far spreading and dressing earth work done for side ﬁlling at the rate of Rs. 4.50 for 20,000/- sq.mtr. plaintiﬀ has estimated Rs. 90,000/-. Thus plaintiﬀ has estimated total amount Rs. 4,69,000/- for suit work. In this suit plaintiﬀ has examined plaintiﬀ Vithalbhai Machavlal Patel vide Ex.38. He deposed in his deposition as per plaint. Plaintiﬀ has engaged seven tractors for suit work and said tractors were anaged for the suit work between 7.00 a.m. to 13.00 hours and 14-00 hours to 19- 00 p.m. Further argued that plaintiﬀ has angaged labours for suit work and plaintiﬀ has paid the amount for labour charge as well as plaintiﬀ has paid amount of tractors change. So far plaintiﬀ has produced vouchers of labour cost vide Ex, 119- to. Ex, 161 plaintiﬀ has completed suit work so far defendants witnesses p. 7 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 acknowledge by their signature vide letters of Ex. 113,114 Moreover plaintiﬀ has produced his account diary vide Ex. 161. On the otherhand defendants så de has not produced any cogent evidence against plaintiﬀ evidence. Hence plaintiﬀ deposition is believable and plaintiﬀ is proved his due amount as prayed. Hence plaintiﬀ is entitled to get the due amount from the defendants as prayed. (25) On the other hand learned A. G.P. Shri N.J. Barot has argued before me that defendants witnesses admitted in their deposition that plaintiﬀ has completed the suit work. So there is no di spute regarding the suit work but here in this suit plaintiﬀ has not produced servey report of pit work plaintiﬀ has not handed over the suit work by tender. How many rate was determine between plaintiﬀ and defendants for suit work. There is no evidence produced regarding the said fact. Plaintiﬀ has produced vouchers of labour charge. These vouchers are not reliable in the evidence. Plaintiﬀ has not examined any independent witness regarding said vouchers. Moreever so many vouchers are seem in the thumb impression but said vouchers are not indenti -ﬁed so said vouchers are not reliable. Moreover defendants witnesses deposed their deposition that spreading work was done by defendants labour and defendants witnesses deposed in their deposition that plaintiﬀ has due amount only moreless 1,40,000/- rupees as per their calculation, Hence plaintiﬀ is not entitled to get amount as prayed. There is no contract between plaintiﬀ and defendants regarding rate value. Plaintiﬀ account diary is not reliable looking to the evidence plaintiﬀ is not entitled to get amount as prayed from the defendants. Considering the both side arguments V as well as both the side oral and documentary evidence it is tressed out that plaintiﬀ has completed the suit work. It is tressed out from letter of Ex. 113. 114. It is tressed out from Ex.114 that plaintiﬀ has angaged the fractors for earth-work. It is tressed out from the evidence that said work has not handed over by tender. It is tressed out that there is no evidence for rate value determination. No contract between plaintiﬀ and defendants regarding rate value. Plaintiﬀ has not p. 8 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 produced for estimated rate value. In this suit plaintiﬀ examined plaintiﬀ Shri Vithal bhai Madhavlal Patel vide Ex. 38 plaintiﬀ admitted in his deposition that he has not produced any survey report of pit work. Plaintiﬀ side OP e has produced vouchers of labour court as well as tractors rent vide Ex. 119 to Ex. 161 but it is tressed out that vouchers of Ex. 121,123, 136, 139,144,154 & Ex. 155 are seen in thumb impression Said vouchers are not identiﬁed so said vouchers are not reliable moreover so far the other bouchers plaintiﬀ has not examined any independent witness. Having to the evidence these witnesses are lived in the village of plaintiﬀ eventhough plaintiﬀ has not put them as a ess. Further it is tressed out that no number were numbered in the voucher. Moreover plaintiﬀ has ﬁled this in the year of 1998. At that time 18 not produced said vouchers evidence but plaintiﬀ has produced said vouchers after co the evidence of plaintiﬀ. Hence plaintiﬀ has not produced said vouchers copy at time of ﬁlling suit hence plaintiﬀ said vouchers evidence is not reliable. Plai nti ﬀ has produced account diary vide Ex. 161 which evidence also not produced at the ﬁlling of suit. So connective evidence of account diary is also not t 100 reliable. Of course in the defendant evidence evisam defendant witness Shri Bhagvanbhai Govindbhai Prajapati vide Ex. 177 and Shri Manubhai Shankarlal Patel vide Ex. 178 deposed their deposition that plaintiﬀ has done work moreless Rs. 1,40,000/- ( one lack fourty thousand rupees). So it is tressed out from defendant evidence that plaintiﬀ has done suitwork e suitwork of Rs. 1;40,000/- Defendant witness Shri Bhagvanbhai Govindbhai Prajapati was a work assistant at the time of suit work and his supervision suit work was done. : . Hencehis deposition is reliable so far far the said di spute. Hence considering the evidences) plaintiﬀ has entited to get due amount from the defendants Rs. 1,40,000/- plaintiﬀ is not proved to cogent evidence for due amount Rs. 4,69,000/- from defendants. Hence my reply of said issue No.2. accordingly partly aﬃrmative.” 14. According to this Court, the learned trial Court has given p. 9 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 cogent, convincing and compulsive reasons to award Rs.1,40,000/- as the oral deposition of the plaintiff as well as the defendants’ witness agreed on the figure that work of Rs.1,40,000/- was done by the plaintiff. In that circumstances, I find no illegality in the impugned judgment and decree. Learned advocates appearing for both the parties have failed to bring any other circumstances, which compelled the Court to interfere with the impugned order. 15. In case between Laliteshwar Prasad Singh v. S.P.Srivastava (D), reported in 2017 (2) SCC 415, the Supreme Court in regards to the applicability of Order XLI Rule 31 of ‘the Code’, held that when appellate Court agrees with the view of the trial Court on evidence, it need not to restate the facts or evidence or reiterate the reasons given by trial Court; the expression of general agreement with reason given by the trial Court would ordinarily suﬃce. It is further held by the Supreme Court that, merely not framing the separate points of determination of law would not render the appellate Court’s judgment against the settled principle of law, provided that the judgment covers all important questions involved in the case and it should not be general and vague. Para 12 and 13 thereof reads as under:- “12. An appellate court is the ﬁnal court of facts. The judgment of the appellate court must therefore reﬂect court's application of mind and record its ﬁndings supported by reasons. The law relating to powers and duties of the ﬁrst appellate court is well fortiﬁed by the legal provisions and judicial pronouncements. Considering the nature and scope p. 10 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 of duty of ﬁrst appellate court, in Vinod Kumar v. Gangadhar, 2015(1) R.C.R.(Civil) 598 : 2015(1) Recent Apex Judgments (R.A.J.) 285 : (2015) 1 SCC 391, it was held as under:- "12. In Santosh Hazari v. Purushottam Tiwari, 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15) "15. ... The appellate court has jurisdiction to reverse or aﬃrm the ﬁndings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reﬂect its conscious application of mind and record ﬁndings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a ﬁnding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a diﬀerent ﬁnding. This would satisfy the court hearing a further appeal that the ﬁrst appellate court had discharged the duty expected of it." The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram, 2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of ﬁrst appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its ﬁndings. 13. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC 243, this Court stated as under: (SCC p. 244, para 3) "3. The ﬁrst appeal has to be decided on facts as well as on law. In the ﬁrst appeal parties have the right to be heard both on questions of law as also on facts and the ﬁrst appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not p. 11 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 recorded any ﬁnding either on facts or on law. Sitting as the ﬁrst appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the ﬁnding regarding title." 14. Again in Jagannath v. Arulappa (2005) 12 SCC 303, while considering the scope of Section 96 of the Code of Civil Procedure, 1908, this Court observed as follows: (SCC p. 303, para 2) 15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy, 2011(1) R.C.R.(Civil) 802 : 2011(1) Recent Apex Judgments (R.A.J.) 222 : (2010) 13 SCC 530, this Court taking note of all the earlier judgments of this Court reiterated the aforementioned principle with these words: (SCC pp. 530-31, paras 3-5) "3. How the regular ﬁrst appeal is to be disposed of by the appellate court/High Court has been considered by this Court in various decisions. Order 41 CPC deals with appeals from original decrees. Among the various rules, Rule 31 mandates that the judgment of the appellate court shall state: (a) the points for determination; (b) the decision thereon; (c) the reasons for the decision; and (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled. 4. The appellate court has jurisdiction to reverse or aﬃrm the ﬁndings of the trial court. The ﬁrst appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reﬂect its conscious application of mind and record ﬁndings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. Sitting as a court of ﬁrst appeal, it was the duty of p. 12 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 the High Court to deal with all the issues and the evidence led by the parties before recording its ﬁndings. The ﬁrst appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the ﬁrst appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the ﬁndings. (Vide Santosh Hazari v. Purushottam Tiwari, 2001(3) R.C.R.(Civil) 243 : (2001) 3 SCC 179, SCC p. 188, para 15 and Madhukar v. Sangram, 2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756 SCC p. 758, para 5.) 5. In view of the above salutary principles, on going through the impugned judgment, we feel that the High Court has failed to discharge the obligation placed on it as a ﬁrst appellate court. In our view, the judgment under appeal is cryptic and none of the relevant aspects have even been noticed. The appeal has been decided in an unsatisfactory manner. Our careful perusal of the judgment in the regular ﬁrst appeal shows that it falls short of considerations which are expected from the court of ﬁrst appeal. Accordingly, without going into the merits of the claim of both parties, we set aside the impugned judgment and decree of the High Court and remand the regular ﬁrst appeal to the High Court for its fresh disposal in accordance with law." 13. The points which arise for determination by a court of ﬁrst appeal must cover all important questions involved in the case and they should not be general and vague. Even though the appellate court would be justiﬁed in taking a diﬀerent view on question of fact that should be done after adverting to the reasons given by the trial judge in arriving at the ﬁnding in question. When appellate court agrees with the views of the trial court on evidence, it need not restate eﬀect of evidence or reiterate reasons given by trial court; expression of general agreement with reasons given by trial court would ordinarily suﬃce. However, when the ﬁrst appellate court reverses the ﬁndings of the trial court, it must record the ﬁndings in clear terms explaining how the reasonings of the trial court is erroneous.” p. 13 C/FA/1338/2004 JUDGMENT DATED: 11/03/2026 16. So far as interest part is concerned, in absence of any contractual obligation to pay interest on the amount due, the learned trial Court has rightly referred to section 34 of the Code and passed the decree granting 6% interest per annum. I see no reason to even interfere with the interest part 17. Resultantly, present First Appeal as well as cross objection fail and stand dismissed. 18. Registry is directed to return back the R & P, if any, to the concerned Court forthwith. (J. C. DOSHI,J) SHEKHAR P. BARVE p. 14 Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 12/03/2026 16:10:04

STATE OF GUJARAT v. VITTHALBHAI MADHAVLAL PATEL

Judgment text