K.K. RAVI CHANDRAN Vs. A.R. PHILIP

JUDGEMENT

(1.) Defendant is the Appellant. Suit filed by the Respondent/Plaintiff for settlement of accounts in relation to a contract work undertaken by him for putting up a residential building for the Appellant was decreed in part by the trial court and it was confirmed in appeal by the lower Appellate Court. Resisting the suit claim, the Appellant/Defendant had set up a counter claim for compensation alleging that by the defective work in the construction of the building, he suffered loss, and additional expenditure was incurred for rectification. Counter claim of the Appellant for compensation was also found proved, but, in part, and the amount quantified thereunder was adjusted in the sum determined as payable in the contract, work executed by the Respondent. Sum of Rs. 20,000/- determined as compensation due to the Appellant, for the defective work was adjusted in the sum found payable to the Plaintiff, and a decree was passed allowing the Plaintiff to recover a sum of Rs. 28,835/- with future interest at 6% per annum. The decree so passed by the trial court, after reappraisal of the evidence, was confirmed in appeal by the lower appellate court. Concurrent decision so rendered is impeached by the Appellant in this second appeal.

(2.) I heard the counsel for the Appellant. From the submissions made and also perusing the decrees and judgments passed by the courts below, it is noticed that the Appellant, who had set up a counter claim for compensation resisting the suit claim of the Respondent, has not challenged the correctness of the decree passed over such counter claim by the trial court, by which, his claim, after being considered with the claim of the Respondent, was allowed only in part, negativing the rest of such claim. Counter claim raised in a suit no doubt has the character of a cross suit and even if the suit in which such counter claim was discontinued by the Plaintiff therein or dismissed, the counter claim has to be proceeded with and disposed in accordance with law. When the counter claim raised was considered with the suit claim of the Plaintiff and issues thereunder were dealt with and a decision rendered in common disposing of the suit claim and counter claim, then, it is needless to point out, the adverse finding on issues made over the counter claim of the Defendant, if not challenged shall operate as res judicata barring any further challenge to the decree passed on the suit claim in favour of the Respondent/Plaintiff. It is seen from the judgment of the trial court, issue No. 1 in the suit related to the question whether the Plaintiff had carried out any additional work on the request of the Defendant, and if so, the amount due to him for such additional work. Issue No. 1 raised on the counter claim related to the additional expenditure incurred by the Defendant for rectification of the defective works done by the Plaintiff. The issues so framed with respect to the suit and counter claim were dealt in common. Similarly, the issue Nos. 2 and 3 cast in the suit dealing with the entitlement of the Plaintiff for the amount claimed for the work done were considered in common with issue No. 3 arising from the counter claim as to the amount due to him as compensation, and such issues were also considered in common. After adjudication of such issues jointly, on the materials placed, the Plaintiff was found entitled to a sum of Rs. 48,835/- from the Defendant for the work done and the Defendant (Appellant) entitled to a sum of Rs. 20,000/- as compensation from the Plaintiff. Adjusting the compensation determined in the amount found payable to the Plaintiff, a decree was passed as indicted above. When such be the case, where there was no challenge against the disallowing of the rest of the counter claim and an appeal was filed only as against the decree passed in favour of the Plaintiff, it has the effect of sealing with finality the decision rendered on the common issues arising from the suit and the counter claim, barring the entertainability of the appeal as against the decision in one of them without challenging the other. However, without noticing the above aspect, the applicability of res judicata in such a situation, the lower appellate court has disposed the appeal filed by the Appellant against the decision rendered in the suit, that alone, on its merits. That was so done would not enable the Appellant to get over the bar of res judicata to challenge the concurrent decision rendered over the suit claim by way of second appeal. The failure, even assuming it to be an omission, of the Appellant/Defendant to challenge the decision rendered in the counterclaim, which was dealt in common with the claims raised in the suit, and such decision having become final, no challenge as against the decree passed in the suit in favour of the Plaintiff can be challenged, that, alone, by way of an appeal. That being so, I find the present appeal is not at all entertainable.