STATE OF GUJARAT Vs. RAMABEN VISHRAMBHAI SORATHIYA

JUDGEMENT

(1.) PRESENT Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant-original defendant to quash and set aside the impugned judgment and order dated 4.12.2007 passed by the learned Appellate Court -learned 2nd Additional District Judge, Sabarkantha -Himatnagar passed in Regular Civil Appeal No.46 of 2006, by which, the learned Appellate Court has partly allowed the said appeal preferred by the respondent herein -original plaintiff and has quashed and set aside the judgment and decree passed by the learned trial Court dismissing the suit.

(2.) THE respondent herein-original plaintiff- Contractor preferred Special Civil Suit No.36 of 1993 against the appellant herein in the Court of learned Civil Judge (S.D.), Himatnagar for recovery of Rs.4,93,720.30 on various counts such as refund of security deposit i.e. Rs.3552/-; Rs. 3170/- for remaining work to be paid for the work of extra item; Rs.37,755.30 for the cost of collapsed Deck slab along with MS reinforcement at the tender rate; Rs.77,395/- on account of the extra cost due to collapse of the centering; Rs. 1,58,848/- on account of extra expenditure on overhead and establishment on account of stoppage of work due to breaches committed by the department; Rs. 2,13,000/- for extra expenditure on idle labour due to stoppage of work, thus in all Rs.4,93,720.30. That the suit was resisted by the defendant by filing written statement at Exh.71 denying the allegations in the suit. It was specifically submitted that the suit is barred by law of limitation. That the learned trial Court framed the issue at Exh.72. Both the sides led the oral evidence at Exhs. 84, 128 and 133 and led the documentary evidences at Exhs. 98 to 107, 124 and 125 and 134 to 142. That on appreciation of evidence, the learned trial Court specifically held that the suit is barred by law of limitation. THE learned trial Court also held in favour of the defendant and specifically held that there was no breach of conditions of the tender and that there was no negligence on the part of the defendant and in fact it was the plaintiff who was negligent due to which the slab collapsed. Consequently, learned trial Court dismissed the suit by judgment and order dated 7.7.2006.

(3.) HEARD Shri Pranav Dave, learned AGP for the appellant and considered the impugned judgment and order passed by both the Courts below as well as the relevant documents and the evidence on record from the Record and Proceedings received from the learned trial Court.