Kerala High Court · 2024

from the 1st defendant and its assets. The plaintiff was also permitted to realise interest at the rate of 6% per annum for the balance amount from the date of termination of his convenorship, R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:3:- till realisation. The plaintiff was also allowed to realise proportionate costs. The suit was dismissed as against supplementary defendants 2 to 4. Counter claim was also dismissed. Aggrieved by the said judgment, the 1st defendant has preferred the appeal on hand.

3. According to Sri.T.Krishnanunni, the learned Senior Counsel for the appellant, the suit was barred by limitation and the trial court overlooked that aspect. According to him, a plea that the Suit was barred by limitation was taken in the written statement filed in the Suit. But, in the appeal memorandum, that was not taken as a specific ground and therefore, a verified petition was filed as I.A. No.1 of 2019 in the appeal on hand seeking for permission of this Court to raise additional grounds as follows : “(L) The trial court ought to have held that the suit as framed is barred by law of limitation. (M) The trial court ought to have found that the plaintiff has instituted the suit after the period prescribed by the law of limitation and has not shown any ground claiming exemption from such law.”

4. An argument note was also filed by the learned counsel stating that a contention that the suit is barred by limitation was R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:4:- not specifically taken in the memorandum of appeal, but as directed by the dictum of this Court in State of Kerala v. Rajan [1992(1) KLT 152], such a ground could also be raised at the time of hearing of the appeal. It was also stated in the argument note that the plea of bar of limitation was raised, based on the following facts : “1. Admitted pleading of the plaintiff in paragraphs 4 and 5 of the plaint regarding completion of work.

2. A further admission in paragraph 9 of the plaint regarding the completion of the work. In this paragraph, the plaintiff pleads that he has completed the work by 1992. He further goes to the extent that the stand taken by the 1st defendant that the work is not complete is surprising.”

5. It is stated in the plaint that the cause of action for the suit was originated on 24.11.1998 when notice demanding the money was sent but the work was stated as completed in the year 1992. Therefore, the relevant provision attracting limitation for raising a claim of the nature is Article 18 which reads : “Description of suit Period of limitation Time from which period begins to run

18. For the price of work done Three years When the work is done by the plaintiff for the defendant at his request, where no time has been fixed for payment” R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:5:-

6. It is contended further that as per the terms of the agreement based on which the plaintiff was entrusted with the work of construction of road by the defendant, the work has to be completed on 31.08.1991. But the plaintiff has no case that the work was completed by him within that timeframe. Even if 1992 is taken as the year of completion of the work, as pleaded in paragraph 9 of the plaint, the Suit ought to have been filed by the plaintiff within three years from that date. But the Suit in the case on hand being filed only in the year 1999, much later to three years from 1992, is hopelessly barred by law of limitation. It is contended further by the learned counsel that the question of limitation is a pure question of law capable of determination on the admitted facts. According to the appellant under Rule 2 of Order XLI of the Code of Civil Procedure, 1908 (for short 'CPC') the trial court is empowered to grant leave for contesting the appeal on a new ground not set forth in the memorandum of appeal. Even then as abundant caution, I.A. No.1 of 2019 was filed on

14.10.1999 seeking leave of the Court to incorporate additional grounds in the appeal memorandum. It is urged that even in the absence of a petition, Section 3 of the Limitation Act provides that R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:6:- subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, though limitation has not been set up as a defence. Thus, it was urged that a court dealing with an appeal has got an inherent power to raise an issue of limitation suo motu and to adjudicate it. State Bank of India v. B.S. Agriculture Industries (I) [(2009) 5 SCC 121] has also been relied on by the learned counsel to contend that limitation being a jurisdictional fact need not be pleaded and it is for the court to determine whether a Suit filed before it is barred by limitation, despite the fact that such a plea was not raised by the parties. It was contended further that based on the admitted pleadings of the plaintiff that the work with reference to which the Suit was filed was completed as early as in 1992, that the plea of limitation is applicable in the case, especially when exemption for not filing the Suit within the period of limitation as contemplated in Order VII Rule 6 CPC has not been claimed by the plaintiff. Accordingly the learned counsel seeks for allowing the appeal and dismissing the Suit, as barred by Limitation. R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:7:-

7. Sri.Sethumadhavan, the learned counsel appearing for the 1st respondent/plaintiff urged to discard the arguments advanced by the learned counsel for the appellant as untenable, being devoid of merits. According to him, the trial court has already found in the impugned judgment on the basis of the oral evidence tendered by PW1 and that of the Advocate Commissioner examined as CW1 and Ext.C1 report filed by him that the appellant was also responsible for the delay occurred in completion of the construction work of the road. According to him, though it was contended by the appellant in the written statement filed in the Suit that the work relating to the construction of a road ought to have been completed by the 1st respondent on 31.08.1991, owing to the default of the appellant in getting the land surrendered or relinquished by the private parties residing there for maintaining proper width of the road to be constructed, delay was occurred in completion of the work. According to him, though the 1st respondent by several letters issued, had communicated that factum to the appellant, nothing was materialised. According to him, due to the inaction of the appellant, the 1st respondent was constrained even to issue a R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:8:- notice seeking termination of the contract, to which also, there was no response for a considerable time. The learned counsel contended that Article 14 of the Limitation Act is not the relevant provision governing the period of Limitation in the case on hand. According to him, the provision governing the period of limitation in the case on hand is Article 113 and the period of limitation is 3 years, which would start to run from the date on which the right to sue accrues to the plaintiff. According to him, 75% of the work was claimed by the plaintiff as completed and a part bill was forwarded to the defendant in the month of May, 1992. Consequently, the Assistant Engineer has recorded in the Measurement Book that for the completed construction of 750 meters of road an amount of `1,52,217/- is payable to the plaintiff. Thereafter the plaintiff was asked to stop the construction work. Therefore, settlement of the final bill was sought and then the amount payable was reduced by the defendant to `1,22,827.90.

8. After measuring the work done by the Assistant Engineer in the year 1992, some more work was done by the plaintiff and that can be seen from Ext.C1 report filed by the Advocate Commissioner. It was in the year 1996 that the defendant has terminated the contract with the plaintiff. According to the R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:9:- learned counsel, the context being so, the right to sue for the money for the work done accrued to the plaintiff in the year 1993 when the contract was terminated and has to be exercised within three years therefrom. O.S.No.16/99 was filed in the year 1999 and therefore there is no merit in the argument advanced by the learned counsel that it is barred by limitation. Thus, I.A. No.1 of 2019 was vehemently opposed and sought for its dismissal.

9. Order XLI Rule 2 CPC is relevant in the context since an argument was advanced by the learned counsel for the appellant on its basis and it is extracted hereunder : “2. Grounds which may be taken in appeal.- The appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal, but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objections set forth in the memorandum of appeal or taken by leave of the Court under this rule: Provided that the Court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground.”

10. As per the rule extracted above, the appellant shall not urge to be heard in support of any ground of objection not set forth in the memorandum of appeal or incorporated later by R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:10:- leave of the Court. As contemplated by the provision, it is mandatory for the appellant to obtain leave of the court for raising a ground of challenge not set forth in the memorandum of appeal. It was urged that whether claim of the appellant to argue or be heard in support of a ground of objection, which has not been raised in the appeal memorandum is purely a matter of discretion of the appellate court. The rule also provides that the appellate court while deciding the appeal shall not confine its consideration to the grounds of objection set forth in the appeal memorandum or those incorporated in the appeal memorandum later by leave of the court. In other words, the appellate court must venture to deal with all issues relevant for disposal of the appeal irrespective of the factum that the appellant failed to raise those or incorporate those after obtaining leave of the court. All grounds probably taken in the appeal ought to have been considered by the appellate court and adjudicated. Therefore, under Order XLI Rule 2 CPC the power of the appellate court is very wide and it is not confined to the grounds raised by the appellant in the appeal memorandum originally, or incorporated later in the appeal with the leave of the Court. R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:11:-

11. In the case on hand, this Court has gone into the contentions taken by the appellant in the written statement filed in the suit and stunned to find that a plea that the suit is barred by limitation was not taken. Even in the appeal preferred, the appellant failed to incorporate such a ground. When the appeal was taken up for hearing, the defendant sought for incorporation of a ground referring to limitation in the appeal memorandum by filing a verified petition as I.A. No.1 of 2019. True that a counter statement was not filed by the plaintiff in that Interlocutory Application. Even if the petition is not opposed by the counsel for the plaintiff, whether to grant leave for incorporating it as an additional ground in the appeal memorandum or not, is a matter of discretion of the appellate court. Under Rule 2 of Order XLI CPC, it is incumbent upon the appellate court to consider all grounds which ought to have been raised in the appeal. The defendant has filed only a verified petition while seeking leave of the Court. It ought to have filed an affidavit stating all the relevant aspects to convince the court that the grounds sought to be raised in the appeal memorandum are relevant in the context. In the verified petition, the Suit was stated as barred by R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:12:- limitation. Apart from that, nothing was stated to convince the court about the provision prescribing period of limitation in the case on hand. The circumstances and evidence available to establish the plea of bar of limitation are also not described in the verified petition. During the course of argument alone, the learned counsel invited the attention of this Court to those aspects. Those aspects were also dealt with in the notes of argument submitted. It is appropriate that an affidavit raising all these aspects must accompany the application seeking the relief.

12. In the above circumstances this Court is declined to grant leave to incorporate additional grounds in the appeal memorandum and accordingly I.A.No.1 of 2019 is dismissed. As stated above, it is contemplated under Order XLI Rule 2 CPC that the appellate court is bound to answer all possible grounds in the appeal, even if those are not raised in the appeal memorandum. In the above circumstances, the plea that the suit is barred by limitation is also a possible ground that must be looked into by the appellate court on its own while deciding the appeal. The Article governing the period of limitation in the suit on hand being relevant, this Court is inclined to find out the one R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:13:- applicable. Having gone through the Schedule specifying the periods of limitation under the Limitation Act, 1963, this Court finds that no specific provision is there covering the limitation period. In the above context, Article 113, the residuary provision alone, will be applicable. Article 113 is extracted hereunder: “Description of appeal Period of limitation Time from which period begins to run

113. Any suit for which no Three years When the right to sue accrues period of limitation is provided elsewhere in this Schedule” Therefore, three years period from the date on which the right to sue accrues to the plaintiff will be the period of limitation in the case on hand.

13. As per the pleadings of the plaintiff in the Suit, he is a contractor by profession and Elamkulam-Mattai Road which was included in the Elamkulam Grama Panchayat having a length of approximately 930 meters and the defendant was appointed by nomination for construction of the same in the year 1991. Costs for the work was fixed at `3,50,000/- and the work has to be completed on 31.08.1991. Incorporating the terms and conditions of the construction work, an agreement was executed as JRYS/90-91 on 04.04.1991. The plaintiff was paid a R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:14:- sum of `1,45,000/- as advance. For want of non-co-operation by the defendant, the plaintiff could not complete the work in time. More than 75% of the work was completed within the scheduled time and therefore the plaintiff applied for encashing the part bill. The work was inspected by the Assistant Engineer and measurement was recorded and entered in the M Book. The Engineer valued the work already done at `1,52,217/-. But the part bill was not sanctioned. Lateron the work was completed by the plaintiff and he applied for check measuring test and also payment of the bill in full. Thereafter the Assistant Engineer took measurement and satisfied with the the work already completed, but the Bills were not sanctioned. On several occasions, the plaintiff demanded payment of money orally as well as through letters. Plaintiff was intimated by the 1st defendant that due to non-completion of the work in time, he was removed from the convenorship of the work by letter dated 29.06.1996. Thereupon notice was caused to be served on the 1st defendant by the plaintiff calling upon him to pay the balance amount. The defendant issued a reply notice raising untenable contentions. It was stated in the reply notice that the work done by the plaintiff R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:15:- is only worth `1,22,827.90 and that excess amount having been paid to him as advance, they are entitled to get return of `22,172.10 in their favour. Thus raising a sum of `2,05,000/-, the sum remaining after adjusting the advance money paid, notice as contemplated under Section 249 of the Kerala Panchayat Raj Act, 1994 was also issued to the 1st defendant on 24.11.1998. Since the bill amount has not been paid, raising a claim for the balance amount with interest, the Suit in question was filed.

14. The defendant in its written statement has admitted the pleadings of the plaintiff regarding the allotment of work, execution of agreement with terms and conditions applicable to the work, completion of part of the work, payment of a part bill by the plaintiff and extension of time after 31.08.1991 for completion of the work at the request of the plaintiff. The measurement of the work by the Assistant Engineer following submission of the part bill, where the amount payable was shown as `1,50,000/- and the second measurement, where the value of the work was assessed as `1,22,827.90 and the termination of the contract with the plaintiff as on 1996. The issuance of the lawyer notice as well as the notice under Section 249 of the R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:16:- Kerala Panchayat Raj Act, 1994 as on 24.11.1998 was also conceded by the 1st defendant. The only contention raised against was that the work was not completed within the time granted and to the satisfaction of the Panchayat.

15. The admitted case of the defendant was that the period for completion of the work was extended further for one year from 31.08.1991 and the frequent demands allegedly made by them to the plaintiff to complete the work and the termination of the contract in the year 1996 would go to show that time was not the essence of the contract allotting the construction work of the road by the defendant to the plaintiff. Independently, plaintiff was terminated from the contract only in the year 1996. When the bill submitted by him claiming the money for the construction work of the road completed by him, was declined and his service was also terminated, he will be entitled to raise a claim in a court of law by filing a suit. As already stated, there is no specific provision covering the period of limitation in a case of the nature. Therefore Article 113, the residuary provision will be applicable and limitation period of three years as provided thereunder will have to be calculated from 1996, when the right to sue accrued R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:17:- on him. Therefore, the plaintiff will get three years from 1996 to raise a claim for money by filing a Suit. It is found that the suit was filed before the trial court in the year 1999. Therefore, this Court holds that the suit is not barred by limitation.

16. When coming to the merits of the case, it is the claim of the plaintiff that construction work of the road was completed substantially. According to him, substantial part of the construction of the road allotted to him by the defendant was done and a part bill was also submitted. According to him, following the submission of the part bill, the work done was also measured by the Assistant Engineer and valued at `1,52,217/-. But the part bill was not passed. Thereafter, measurement was repeated by the Assistant Engineer and the value of the work was reduced from `1,52,217/- to `1,22,827.90. The Assistant Engineer who measured the work was examined on the defendants' side as DW1. She deposed as if she has no information about the terms of the contract. Proof affidavit was filed by her stating that she was the Executive Engineer of Elamkulam Grama Panchayat from 01.11.1991 till 22.06.1996. According to her, plaintiff has not completed the work and R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:18:- following the submission by him of the part bill, the work was measured by the Assistant Engineer attached to the office of the defendant and valued at `1,22,827.90. But during cross examination she has gone to the extent of stating that she has not verified the documents pertaining to the construction of the road which provides that the road was proposed to be constructed through the properties of several private individuals and that she has not been informed about the relinquishment of the properties by these persons in favour of the defendant. Admittedly of her, when the Assistant Engineer went to the site to measure the work, she accompanied him and the measurements were recorded in a hand book and not in the M Book. According to her, she then was transferred from that Panchayat and therefore, the correct measurement of the road was not taken. Admittedly, the remaining work was not entrusted by the Panchayat to anyone else. Since the measurement of the construction work of the road carried out by the plaintiff was not entered in the M Book, the Panchayat was not called upon, for production of any materials regarding that. However, it was admitted by her that part of the construction R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:19:- work allotted has been completed by the plaintiff. Exts.A1 to A5 are documents relied on by the plaintiff to establish his claim for money. Ext.A1 is the lawyer notice issued on 24.11.1998, Ext.A2(a) is the copy of the acknowledgment card, Ext.A2 is the reply notice, Ext.A3(a) is the postal receipt, Ext.A4 is the copy of registered notice issued in the year 1996 and Ext.A11 is the postal receipt. Ext.C1 is the report of the Advocate Commissioner and it was reported there that the maximum width of the road already constructed is 9.5 meters and the minimum is 6.5 meters. The width of the completed road was also shown differently at different places. Plaintiff as PW1 clarified that the difference in width was on account of the non-surrendering of the properties in places by respective owners of those. The Panchayat does not have a case in the written statement filed by them or in the reply notices sent that permission for relinquishment of the land was obtained from the owners of the land residing there. The case of the plaintiff was that the Panchayat was already addressed, to obtain relinquishment of the properties by owners of land but they were reluctant to do so. Therefore, in the light of the oral evidence tendered by R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:20:- plaintiff, the documentary evidence consisting of Exts.A1 to A5 and C1 commission report, this Court could arrive at a finding safely that 75% of the total construction work of the road was already completed by the plaintiff and the non-completion of the entire work was not due to his fault. It is established from the evidence on record that Panchayat was responsible for the delay in carrying out the construction work.

17. It is pertinent to note that even after measuring and valuing the construction work of the road already completed at `1,52,217/-, the defendant did not pass the part bill and pay the money to the plaintiff. The defendant did not offer any cogent explanation for reduction of the costs to `1,22,827.90. The commission report was not opposed. Therefore the factum remains that 75% of the construction work of the road was completed. The agreement by which the work was allotted to the plaintiff and the M Book were not produced in evidence by the defendant. Therefore, the uncontroverted oral as well as documentary evidence adduced by the plaintiff and Ext.C1 alone are available to the court to arrive at a finding that 75% of the construction work was completed by the plaintiff. There is no R.F.A. No. 43 of 2006 and I.A. No. 1 of 2019 -:21:- case for the defendant that the plaintiff has been paid for the work already done. The parties were not in dispute on payment of `1,45,000/- as advance to the plaintiff on the very date of allotment of the construction work. In the above scenario, the plaintiff is entitled to get the costs of construction of the road already completed by him, less the amount paid as advance. The trial court has decreed the Suit correctly and dismissed the counter claim. The judgment under challenge deserves to be maintained. Appeal fails for the reasons and is dismissed. Sd/- JUDGE MARY JOSEPH