GURDIAL SINGH Vs. AUCKLAND HOUSE SCHOOL

JUDGEMENT

(1.) This petition purports in have been filed under the provision of Section 115, Civil Procedure Code (hereinafter called the Code) against the order of Sub- Judge II, Simla dated 4-12-1974 whereby the application of Shri Gurdial Singh under Section 151, Civil Procedure Code has been rejected. The petitioner had filed the suit in January' 1970, in the Court of the Senior Sub-Judge, Simla against Auckland House School, Simla through its Principal for a money decree of Rs. 3,300/- on the allegations that the plaintiff who is a building contractor had taken the contract for the repairs and construction of several buildings of the defendant and had also received payments on the completion of the works and had also received advance payments. That in the month of December, 1965, the plaintiff was called by the Principal of the defendant school to give estimate for the sanitary work in Belvedere cottage and sanitary work in Belvedere main building. He gave the estimates as under:-- 1. Sanitary work in Belve- Rs. 6,300/-dere Cottage

(2.) Sanitary work in Belve- Rs. 3,000/- dere Main Building The estimates were accepted by the Principal and the plaintiff took the work in hand. He was given a sum of Rs. 5,000/-as advance on 27-1-1966 for the completion of the work, a further sum of Rupees 5,000/- on 14-2-1966 and in all Rupees 10,000/- were advanced towards the estimated work of Rs. 9,300/-. The work which was originally entrusted had been increased because of some changes and alterations in the original estimated work, He completed the work in the first week of March, 1966, excepting the sewerage line. A dispute arose between the plaintiff and one Shamboo Ram to whom the plaintiff had entrusted the work on labour rates as he was a registered plumber and was also doing work for the plaintiff. He refused to give the completion report to the Municipal Committee for the connection. The plaintiff requested the Principal to apply to the Municipal authorities for change of the Municipal sanction to some other licensed plumber but the same was also refused. However, the plaintiff got the sewerage line connected on 20-2-1967. The work was checked by mutual agreement between the parties on 4-9-1969 through the Commissioners S/Shri Mohan Singh, S.L. Raheja and H.D. Sardana appointed by the High Court in Suit No. 13 of 1968 between the parties pending in the High Court. In August, 1966, the Principal of the defendant School gave electrical work and sanitary work to the plaintiff to be done in the additional storey of Belvedere Cottage, through verbal orders. For this the defendant agreed to give the market rates and advanced Rs. 3,000/- by a cheque on 208- 1966. This work was also completed. The defendant pointed out some minor defects which too were removed, The connection of the electricity in the additional storey of the Belvedere Cottage was given on 23-3-1967. Besides this on verbal orders of the Principal of the defendant school, the plaintiff also provided and erected poles for carrying electric mains to the Belevedere Cottage. Despite repeated demands the defendant had not allowed the plaintiff to get the work measured. The work was also got measured and report submitted by the Commissioner appointed by the High Court. In so far as the remaining sanitary work was concerned, the plaintiff had brought the material but the defendant did not cooperate in getting the same carried out with the result that the plaintiff had to remove the material. He also suffered a loss on that account. The defendant also took the material for the use of their building repairs that is, sand, bricks, cement, corrugated sheets, bajree etc. The price thereof had not been paid so far and the Principal of the defendant school had admitted this fact. That the value of the work done for the several items detailed under para. 8 amounted to Rupees 15,924.00. Out of this the advance was of Rs. 13,000/- and the balance due was Rs. 2,942.00 and an amount of Rs. 700/-by way of interest @ Rs. 12% per annum the total amounted to Rs. 3,642.00 and out of this amount Rs. 338.80 P. was deducted from the plaintiff on account of his daughter's fee who was reading in the school, and that way the plaintiff claimed a sum of Rs. 3,303.20 P. from the defendant. 2. In para. 9 of the plaint it had been pleaded that besides the works stated above the plaintiff also carried out other building works for the defendant School in the year 1965-66 which work was measured and was worth Rupees 53,855.54 P. and out of which Rs. 31,000/-had been paid on different dates and for the recovery of the balance of Rupees 22,855.54 P. and interest thereon a separate suit after adjusting the school dues of his daughter had been filed by the plaintiff in the High Court, Himachal Bench at Simla.

(3.) The aforesaid suit as mentioned in para-9 of the plaint had been decided by the Himachal High Court on 7-9-1971 and a decree for Rs. 5,975.20p. along with the future interest and proportionate cost was passed in favour of the plaintiff. Against the dismissal of the part of the claim the plaintiff filed R. F. A. No. 4 of 1972 before the Division Bench of the Hight Court. In the decree passed by the single Judge, it had been observed that the petitioner (plaintiff) should have adjusted Rs. 13,000/- towards the suit No. 13 of 1968 against which finding the plaintiff had filed the appeal before the Division Bench. Whereas the petitioner had given adjustments of this amount of Rs. 13,000/-in the suit out of which this revision petition has arisen.