The burden of proof lies with the party making a claim, and lack of evidence can result in a ruling against that party.

H. BILLAPPA, J.-The appeal by the defendant is directed against the judgment and decree, dated 08.02.2006, passed by the Prl. Civil Judge (Sr.Dn) and CJM, Mangalore, in O.S. No. 293/1996 which has been modified by the II Addl. District Judge, D.K., Mangalore in R.A. No. 12/2006.

2. By the impugned judgment and decree passed in O.S. No. 293/1996, the trial Court has decreed the suit of the plaintiff for a sum of Rs. 58,120/- with interest at 12% p.a. from the date of suit till the date of decree and thereafter, at 10% per annum from the date of decree till the date of realization. Aggrieved by that, the appellant-defendant has preferred an appeal in R.A. No. 12/2006. The appellate Court by its judgment and decree dated 18.8.2008 has allowed the appeal in part and modified the judgment and decree passed by the Trial Court granting decree for a sum of Rs. 54,379/- with interest at 18% p.a. from the date of suit till the date of realization.

3. Aggrieved by that, the appellant-defendant has filed this second appeal.

4. Briefly stated, the facts are:

The respondent-plaintiff filed suit in O.S. No. 293/96 for recovery of a sum of Rs. 58,120/- with interest @ 18% p.a. The case of the respondent-plaintiff was that he wanted to construct a residential building on his site at Jeppu, Mangalore. The appellant-defendant posing himself as a contractor came forward to put up construction and took a sum of Rs. 50,000/- from the plaintiff through cheque dated 20.2.1995 bearing No. 014891. The defendant encashed the cheque on 21.2.1995. He did not procure the building material. After one month, the defendant started leveling the ground. No progress was made. The defendant had no regular labour force. He had inexperienced persons with him. The defendant constructed a temporary water tank which was sub-standard and defective. Therefore, the plaintiff restrained the defendant from proceeding further and allowed the defendant to retain a sum of Rs. 5,000/- and asked to repay Rs. 45,000/- by 30.05.1995. The defendant did not repay the amount. Therefore, the plaintiff filed suit for recovery of a sum of Rs. 58,120/- with interest @ 18% p.a.

5. The appellant-defendant resisted the suit denying the plaint averments and contending that he is a reputed P.W.D. Contractor. He had equipments and good labourers. The averments that the defendant had no ability or experience to do the construction work are denied. It is also denied that the defendant promised to pay Rs. 45,000/-.

6. The defendant in his reply dated 23.10.1996 informed the plaintiff about the work done by him. The cost of materials purchased by him was to the tune of Rs. 14,000/-. For levelling the land he has spent a sum of Rs. 20,000/-. For excavation and construction work he has spent Rs. 22,196.85. The defendant furnished the bills to the plaintiff as he wanted to raise housing loan from the M.C.C. Bank. It is stated, the defendant paid a sum of Rs. 2,379/- towards building licence and incurred expenses of Rs. 3,000/- to visit the Corporation Office several times. In all the defendant has spent a sum of Rs. 61,575.85. Therefore, the defendant made counter claim to the tune of Rs. 11,575.85 from the plaintiff.

7. The plaintiff has filed his rejoinder to the counter claim. It is contended that the counter claim is false and vexations and barred by limitation.

8. The Trial Court considering the material on record has held that the defendant has failed to show that he has carried out work to the tune of Rs. 61,575.85 and heis not entitled for set-off or counter claim. Consequently, the Trial Court has decreed the suit for a sum of Rs. 58,120/- with interest at 12% p.a. from the date of suit till the date of decree and thereafter, at 10% per annum from the date of decree till the date of realization.

9. In the appeal, the appellate Court has modified the judgment and decree passed by the Trial Court and has decreed the suit for a sum of Rs. 54,379/- with interest at 18% p.a. from the date of suit