The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK S.A. No.197 of 1991 (In the matter of an appeal under Section 100 of the Code of Civil Procedure, 1908) Berhampur Municipality represented through its Executive Officer, Berhampur Municipality, Berhampur -versus- …. Appellant Prafulla Chandra Panda …. Respondent Appeared in this case:- For Appellant For Respondent Appeared in this case:- : : Mr. Debasis Nayak, Advocate appearing on behalf of Mr. S.K. Nayak, Advocate None CORAM: JUSTICE A.C. BEHERA JUDGMENT Date of hearing : 22.01.2024 / date of judgment :27.02.2024 A.C. Behera, J. This 2nd appeal has been preferred against the confirming judgment. 2. The appellant of this 2nd appeal was the defendant before the trial court in the suit vide T.S. No.152 of 1981 and appellant before the 1st appellate court in the 1st appeal vide T.A. No.22 of 1990. // 2 // 3. The respondent of this 2nd appeal was the sole plaintiff before the trial court in the suit vide T.S. No.152 of 1981 and respondent before the 1st appellate court in the 1st appeal vide T.A. No.22 of 1990. 4.
Legal Reasoning
The suit of the plaintiff vide T.S. No.152 of 1981 against the defendant was a suit for mandatory injunction for a direction to the defendant (Municipality Berhampur) to measure the works executed by the plaintiff(Contractor) and to prepare the final bills thereof and to pay the same along with damages at the rate of 12% per annum thereon along with other reliefs, to which, he (plaintiff) is entitled for. 5. As per plaintiff’s case, he (plaintiff) being a “A” Class Contractor of the PWD, he was executing the works of different public bodies and authorities including Berhampur Municipality (defendant) as per work orders. The defendant, i.e., Berhampur Municipality asked for tenders for execution of certain original works, such as, the construction of buildings of Aska Road Boys’ Municipal High School along with some special repairing works of first, middle and back/last row of that Aska Road Boys’ Municipal High School. In response to the tender call notice of Berhampur Municipality(defendant), different contractors submitted tenders including the plaintiff. After consideration of all the tenders of the applicants including the plaintiff, the tender of the plaintiff was accepted. For which, the defendant issued a work order on 08.10.1968 to // 3 // the plaintiff for original works, i.e., for construction of the building of Aska Road Municipal Boys’ High School and thereafter issued another work order on 16.03.1969 for special repairing works, i.e., for the repairing of first, middle and back/last row of the building of Aska Road Municipal Boys’ High School. After such work orders, the parties, i.e., plaintiff and defendant executed necessary agreements and thereafter, the plaintiff started the assigned works of the above to work orders by depositing the earnest money with the defendant. During the course of construction of the original works and repairing works, the defendant asked the plaintiff to do some other additional works and accordingly, in response to the demand of the defendant, the plaintiff also executed the additional works and completed the execution of all works in due time. 6. While the works were under progress, measurements of the same were done by the defendant from time to time and on the basis of such measurements, running bills were prepared and paid to the plaintiff. On the basis of the running bills, the plaintiff was paid Rs.56,333/- for the execution of original construction works and Rs.52,586/- for the execution of repairing works. As per the condition of the work order, the repairing works were completed on 30.03.1970 and the original construction works were completed on 31.03.1971. // 4 // 7. As per the prevailing practice in the Municipality(defendant), after completion of the execution of works, delivery of possession of the newly constructed buildings were usually being taken by the Municipality (defendant) before the preparation of the final bills, as the Municipality usually remains in derth of its Engineering Staffs for the preparation of final bills. On preparation of the final bills, the finally determined amounts are being paid to the contractor after deduction of the amounts already paid through running bills. After handing over the buildings to the Municipality(defendant) on completion of the original works and repairing works, the plaintiff requested the defendant for several times for preparation of the final bills after final measurements of the works. He(plaintiff) sent several letters and reminders to the Executive Officer of the Municipality for the final measurements of his executed works and also for preparation of the final bills. Though the officers of the Municipality (defendant) were assuring the plaintiff for preparation of the final bills on final measurement of the works executed by him (plaintiff), but, they were not doing the same on the pretext of several pleas. As several years passed, the defendant(Municipality) did not measure the works for final bills, then, the plaintiff issued a notice through his Advocate to the defendant for final measurement of the works executed by him and requested for payment after preparing the final bills. But, in spite of receiving that // 5 // notice of the plaintiff, the defendant did not respond the same. Then, without getting any way, after issuing statutory notice to the Municipality(defendant), the plaintiff approached the civil court by filing a suit vide T.S. No.152 of 1981 on dated 20.10.1981 against the defendant praying for directing the defendant to measure the works executed by him as per work orders dated 08.10.1968 and 16.03.1969 respectively and to prepare the final bills and to direct the defendant to pay the amounts covered under the final bills along with his deposited earnest money and also to direct the defendant to pay damages at the rate of 12% on the amount of the final bills along with other reliefs, to which, the Hon’ble Court deems fit and proper. 8. Having been noticed from the court in the suit vide T.S. No.152 of 1981 filed by the plaintiff, the defendant challenged the same by submitting its written statement along with a counter claim / set off therein by stating that, though a portion of the construction works of the main building of Aska Road Municipal Boy’s High School was completed for the purpose of opening ceremony of the building on 21.07.1971, but, other works, i.e., repairing works of first, middle and back/last row and as well as finishing works of that Aska Road Municipal Boy’s High School were done subsequently and till yet the construction of watcher-shed and other petty works have not been done by the plaintiff. The payments have been made to the plaintiff through // 6 // proper measurements of different items of works only withholding 7% of the total bill amounts towards security with a condition to be paid after return of the unused and balance materials supplied to him(plaintiff) for the works by the Municipality (defendant). The final measurements of the works were done to the knowledge of the plaintiff and the final bills have already been prepared, but, as the plaintiff did not return the unused and balance materials of the municipality, for which, as per final bills, no money has been paid to the plaintiff. Because, the plaintiff is not entitled to receive any money from the defendant due to non-return of the unused and balance materials of the Municipality(defendant), as it was the duties and obligations of the plaintiff to return the same. The detailed particulars of the materials, to which, the plaintiff is liable to return along with value/cost thereof has been specifically indicated in paragraph nos.5 & 6 of the written statement of the defendant. The further case of the defendant was that, though it was the duty and obligation of the plaintiff (contractor) to return the unused and balance materials to the defendant(Municipality) before preparation of the final bills, but, when the plaintiff did not perform his obligations, then the plaintiff is not entitled for any amount from the defendant. As per the calculations given in paragraph nos.5 & 6 of the written statement of the defendant, the plaintiff was liable to return value/cost of such unused and balance materials to the tune of Rs.7,900.10 Paise to the defendant. After // 7 // adjustment of Rs.7,900.10 Paise with the amounts of the final bills, Rs.1720.59 Paise is remaining outstanding against plaintiff to pay defendant. So, the plaintiff is not entitled to receive any money from the defendant on the basis of the final bills. Therefore, there is no cause of action for the plaintiff to file the suit against the defendant. That apart, the suit of the plaintiff is barred by time. The court lacks its jurisdiction to try the suit. As the defendant (Municipality) is entitled to get Rs.1720.59 Paise from the plaintiff after adjustment of all the dues of the plaintiff through final measurement of the works and as the plaintiff has not paid the same to the defendant, for which, the defendant filed a counter claim/set off along with its written statement against the plaintiff praying for directing the plaintiff to pay Rs.1720.59 Paise to the defendant and to dismiss the suit of the plaintiff by allowing the counter claim / set off filed by the defendant. 9. Basing upon the aforesaid pleadings and matters in controversies between the parties, altogether seven numbers of issues were framed by the trial court in the suit vide T.S. No.152 of 1981 and the said issues are:- I S S U E S 1. Has the plaintiff completed the suit works in time? // 8 // 2. Whether the defendant has prepared the final bill of the three works along with additional and alterations? 3. Whether any materials supplied by the defendant to the plaintiff remained unused with the plaintiff? If so, whether the plaintiff is liable to return the same or its value to the defendant? 4. Whether the suit claim is proper and tangible? If so, whether the defendants is liable to pay the suit claim? 5. Whether the plaintiff is liable for the counter claim made by the defendant? 6. To what relief, if any, the plaintiff or the defendant is entitled to? 7. Is the suit maintainable? 10. In order to substantiate the aforesaid reliefs sought for by the plaintiff in his suit vide T.S. No.152 of 1981 against the defendant, he (plaintiff) examined himself as P.W.1 and relied upon the documents vide Exts.1 to 2A. On the contrary, in order to nullify/defeat the suit of the plaintiff and for the decree of the counter claim/ set off of the defendant, the defendant (Municipality) examined two witnesses on its behalf, i.e., // 9 // over-seer and Store Clerk of Berhampur Municipality as D.Ws.1 and 2 and proved several documents on its behalf vide Exts. A to P/1. 11. After conclusion of hearing and on perusal of the materials, documents and evidence available in the record, the trial court answered issue nos.1, 2 and 7 in full in favour of the plaintiff and answered issue nos.3, 4 and 5 partly in favour of the plaintiff and partly in favour of the defendant and answered issue no.6 in favour of the defendant and on the basis of the findings and observations made by the trial court in the issues, the trial court decreed the suit of the plaintiff and as well as the counter claim/set off of the defendant both preliminarily in part on contest, but, without cost and directed the defendant for preparation of the final bills in respect of the three items of works together along with the additional works executed by the plaintiff in the light of the observations given under the issue nos.3, 4 and 5 within three months, failing which, the plaintiff may take appropriate steps for preparation of the same with the help of Commissioner as per its judgment and decree dated 25.08.1989 and 05.09.1989 respectively passed by the trial court in the suit vide T.S. No.152 of 1981. 12. On being aggrieved with the aforesaid judgment and decree dated 25.08.1989 and 05.09.1989 respectively passed by the trial court in the suit vide T.S. No.152 of 1981 in decreeing the suit of the plaintiff and as well as the counter claim/set off of the defendant both, the parties, i.e., // 10 // plaintiff and defendant both challenged the same by preferring two separate appeals against each other. The defendant Municipality challenged, the judgment and decree passed by the trial court in the suit vide T.S. No.152 of 1981 against it by preferring an appeal vide T.A. No.22 of 1990 being the appellant against the plaintiff by arraying the plaintiff as respondent. The plaintiff challenged the judgment and decree passed by the trial court in the counter claim/set off of the defendant in T.S. No.152 of 1981 against him(plaintiff) by preferring the 1st appeal vide T.A. No.26 of 1990 being the appellant against the defendant by arraying the defendant as respondent. Above two both the 1st appeals vide T.A. No.22 of 1990 and T.A. No.26 of 1990 filed by both the parties against each other were heard and dismissed through a common judgment as per its judgment and decree dated 15.04.1991 and 30.04.1991 respectively passed by the 1st appellate court confirming the judgment and decree passed by the trial court in the suit and its counter claim/setoff in T.S. No.152 of 1981 by formulating the guidelines for the preparation of the final bills through measurements indicating the same in para nos.11 of the judgment and decree of the 1st appellate court. // 11 // 13. On being aggrieved with the aforesaid judgment and decree dated 15.04.199 and 30.04.1991 respectively passed by the 1st appellate court in dismissing the 1st appeal of the defendant (Municipality) vide T.A. No.22 of 1990, the defendant challenged the same by preferring this 2nd appeal being the appellant against the plaintiff by arraying the plaintiff as respondent. 14. This 2nd appeal was admitted on formulation of the following substantial questions of law, i.e.,:- 1. Whether the cause of action in this particular case would be continuous in view of Ext.1 series? 2. Whether the respondent having committed breach of contract was entitled to any relief under the law of contract? 3. Whether in view of clause-35 of the tender, the alleged additional work is really additional or supplementary to the works as per the agreement vide Ext.E and the tender Ext.B? 15. I have already heard from the learned counsel for the appellant only, as none appeared from the side of the respondent for hearing of the appeal. // 12 // 16. It is the own case of the plaintiff as per his pleadings that, the work orders were issued to him for the original construction works on dated 08.10.1968 and for special repairing works on dated 16.03.1969. The repairing works were completed on 30.03.1970 and the construction of the original works were completed on 31.03.1971. He (plaintiff) has received Rs.56,333/- towards part payment for the original construction works and Rs.52,586/- for special repairing works through different running bills. 17. It is the specific plea/case of the defendant (Municipality) that, the final measurements of the works were done by the defendant in both the works, i.e. for original works and as well as for repairing works in presence of the plaintiff and the bills have also been prepared, but, as the plaintiff did not return the unused and balance materials, to which, he(plaintiff) had received from the defendant for the execution of above two works, for which, the plaintiff is not entitled to receive any money from defendant, because, the cost/value of the materials, those were liable to be returned by the plaintiff to the defendants are more than the amounts of the final bills. For which, through a counter claim / set off, the defendant claimed a sum of Rs.1720.59 Paise from the plaintiff making him(plaintiff) liable to pay the same to the defendant even after adjustment of the cost of the materials/goods liable to be returned by the plaintiff to the defendant with the amounts of the final bills. // 13 // 18. The trial court in its judgment and decree passed in T.S. No.152 of 1981, decreed the suit of the plaintiff as well as the counter claim / set off of the defendant. So, on the basis of the said judgment and decree passed by the trial court, the plaintiff was entitled for the relief of mandatory injunction directing the defendant for preparation of the final bills of his works executed through work orders dated 08.10.1968 and 16.03.1969 and as well as to get payments on the basis of that final bills. At the same time, as per the decree of the counter claim/set off of the defendant, the defendant was entitled to get the payments, i.e., Rs.1720.59 Paise from the plaintiff towards the value/cost of the materials after adjustment of the amounts of the final bills with the total cost of the materials to which, the plaintiff was liable to return to the defendant. According to the plaintiff, the execution of the above two categories of works were completed by him on 30.03.1970 and 31.03.1971 respectively. He (plaintiff) filed the suit vide T.S. No.152 of 1981 on dated 20.10.1981 against the defendant praying for preparation of the final bills on the basis of the measurements at the spot. The judgment and decree of the suit and its counter claim/set off vide T.S. No.152 of 1981 were pronounced on 25.08.1989. // 14 // As such, 10 years after the so-called completion of works as per the own saying of the plaintiff, the suit vide T.S. No.152 of 1981 was filed by him (plaintiff) praying for preparation of the final bills of his works through measurements at the spot. The judgment of the suit was passed eight years thereafter. In the meantime, more than 50 years have already been passed since the date of so-called completion of works. Because, the plaintiff has stated in his plaint that, the works were completed by him on 30.03.1970 and 31.03.1971 respectively. 19. The trial court has decreed the counter claim of the defendant entitling the defendant making the plaintiff liable to pay Rs.1720.59 Paise to the defendant after adjustment of the total cost of the goods/materials, to which, the plaintiff was liable to return to the defendant with the amounts of the final bills. The said judgment and decree passed by the trial court in the counter claim/set off of the suit vide T.S. No.152 of 1981 in favour of the defendant and against the plaintiff has already been confirmed by the 1st appellate court in dismissing the 1st appeal vide T.A. No.26 of 1990 of the plaintiff. So, as per the final determination made by the 1st appellate court in its judgment and decree passed in T.A. No.26 of 1990 confirming the decree passed by the trial court in T.S. No.152 of 1981 in favour of the defendant in respect of the counter claim of the defendant, the defendant is entitled to // 15 // get Rs.1720.59 Paise from the plaintiff. As such, the claim of the plaintiff against the defendant in the suit vide T.S. No.152 of 1981 without complying his duties and obligations for returning the cost of unused and balance materials to the defendant and without giving any explanation in his plaint about the cause and reason of retention of (withholding of) such materials is ultimately going to show that, the plaintiff has not approached the court with clean hands. 20. It is the settled propositions of law that, a litigant, who comes to the court suppressing the material facts with un-clean hands, the said litigant is not entitled to any relief, interim or final and he/she is also not entitled to be heard on merits of his/her case. 21. When the plaintiff has approached the trial court by filing the suit vide T.S. No.152 of 1981 without disclosing and without explaining in his plaint about the cause of retention of the unused and balance materials/goods with him instead of returning the same to the defendant before preparation of the final bills and when the plaintiff has approached the court by filing the suit suppressing the above material facts with un-
Decision
clean hands, then at this juncture, in view of the above settled principles of law, he (plaintiff) is not entitled under law to get any relief in the suit against the defendant. // 16 // 22. When the plaintiff has approached the court 10 years after the so- called completion of works as per his own saying and when the judgment and decree of the trial court has been passed on 25.08.1989, i.e., 18 years after so-called completion of works and when, in the meantime, more than 50 years have already been passed and when the trial court in its judgment and decree has directed to prepare the final bills in respect of the works executed by the plaintiff (contractor) as per the work orders dated 08.10.1968 and 16.03.1969 respectively through proper measurements of the said works at the spot, then at this juncture, more than 50 years after the execution of the works, it is not at all humanly possible to measure such works. Because, after 50 years, it is obvious and natural about the total vanishing of the signs and symbols of such works. As within a period of long 50 years, there will have been several works either original or repairing upon the executed works of the plaintiff. That too, there is every possibility about the alterations /modifications/ demolitions of the old structures during the passage of long 50 years, on which, the execution of works were done by the plaintiff. For which, it is immensely impossible to execute the decree passed by the trial court and 1st appellate court for the preparation of final bills of the executed works of the plaintiff through practical measurements of such works at the spot. Therefore, the judgment and decree passed by the trial court is held to be an in-executable decree. // 17 // 23. It is the settled propositions of law that, no court should pass a decree knowing fully well that, it would not be executable, because of subsequent events. It is also the elementary that, no court would pass a decree, which would be in-executable and would be rendered infructuous. As such, no ineffective decree can be passed by any court like a vague and unenforceable decree. 24. As per discussions and observations made above, when it is held that, the judgment and decree, passed by the trial court is a practically in- executable and ineffective decree, because of subsequent events due to the passage of long time, i.e., more than 50 years for the reasons assigned above, then at this juncture, by applying the above principles, it is held that, the judgment and decree passed by the trial court in the suit vide T.S. No.152 of 1981 and the confirmation to the same by the 1st appellate court to an in-executable and ineffective decree cannot be sustainable under law. For which, there is justification under law for making interference with the same through this 2nd appeal filed by the appellant (defendant). Therefore, there is merit in the 2nd appeal of the appellant(defenmdant). The same must succeed. 25. In the result, this 2nd appeal filed by the appellant(defendant) is allowed on merit, but without costs. // 18 // 26. The judgment and decree passed by the trial court in the suit vide T.S. No.152 of 1981 and as well as by the 1st appellate court in T.A. No. 22 of 1990 are set aside. The suit be and the same vide T.S. No.152 of 1981 filed by the plaintiff and counter claim/set off filed by the defendant both are dismissed on contest against each other, but without cost. Judge Orissa High Court, Cuttack The 27th of February, 2024/ Jagabandhu, P.A. ( A.C. Behera ) Signature Not Verified Digitally Signed Signed by: JAGABANDHU BEHERA Designation: PA Reason: Authentication Location: OHC, CUTTACK Date: 27-Feb-2024 17:10:02