Point of Law: Suit for recovery of amount - Suit to include whole claim - Since defendant in case on hand failed to raise plea of bar of suit under Order II Rule 2 C.P.C before the trial court, it is a matter of leave being obtained from Appellate Court under Order XLI Rule 2 CPC to raise it at this juncture.

JUDGMENT :

The judgment and decree passed by I Additional Sub Court, Thrissur (for brevity, 'the court below') on 18.03.2005 in O.S No.128 of 1998 is assailed in the appeal on hand by the defendant in the said suit. For the sake of clarity, the parties to this appeal are referred to hereinafter as the defendant and the plaintiff in accordance with their status in the suit.

2. The suit above was filed by the plaintiff seeking realisation of money. He had raised a case that he was a Building Contractor, that he was engaged by the defendant to construct a house and allied structures as per the building plan and agreement executed by them on 07.06.1995 incorporating the terms settled among them after negotiations about the manner of constructions and it's costs, that Rs.5,000/- was given as advance towards the costs, that the construction work was to commence from the already constructed basement, that Rs.75,000/- each was agreed to be paid towards costs of construction works of the foundation as well as the terrace of the Kayyalapura, that the time fixed for completion of the work was till 30.01.1996, that the construction work commenced as per the agreed schedule could not be continued for failure of the defendant to supply the required materials as agreed, that the defendant being abroad at the relevant time, letter was sent to intimate him about the situation, that the work was assigned by the defendant to another party without settling the accounts with the plaintiff, and that as per the agreement executed, the defendant is liable to pay a sum of Rs.1,45,000/- (Rs.75,000x2)- 5000) for the work already completed by the plaintiff and a sum of Rs.1,05,000/- as compensation towards the loss sustained by him. Raising claims as above, the Original Suit was filed for realisation of Rs.2.5 lakhs with interest at the rate of 12% per annum.

3. The defendant in his written statement has taken a categoric stand of denial of execution of the agreement and entrustment of the construction work of the house and Kayyalapura. The signature in the agreement allegedly executed by the plaintiff with him was disowned by him. The construction work was admitted as done under the supervision of his father and younger brother. According to him it was orally agreed that the plaintiff would supply the workers for the construction and supervise the work, that wages would be paid to the workers by his father directly, that Rs.5,000/- was paid to the plaintiff for the work, that the materials for the construction work were supplied by the father of the defendant, that suit filed by the plaintiff as O.S No.1041/1995 was already dismissed by the Munsiff's Court, that in the absence of an agreement executed among them, question of breach of any terms will not arise and that the suit for realisation of money is only to be dismissed.

4. Based on the above rival contentions, specific issues had been framed by the trial court as follows:

“1. Whether the plaintiff has executed the construction work as per agreement dated 07.06.1995?

2. Whether the defendant is liable to pay the cost of the work by plaintiff?

3. Whether the plaintiff is entitled to realise any compensation as claimed?

4. Reliefs and costs?”

5. To facilitate the process of adjudication of the issues, both parties adduced oral as well as documentary evidence. The plaintiff's evidence consists of the oral evidence tendered by himself and his witnesses as PWs 1 to 4 and documentary evidence of Ext.A1 to A7(c). The defendant's evidence is confined to the solitary oral evidence of his father and Power of Attorney holder as DW1 and documentary evidence of Ext.B1. Ext.X1 was also marked as court Exhibit.

6. The trial court found the issues except issue No.3 in favour of the plaintiff and accordingly decreed the suit as follows:

“21. Issue No.4:- In the result the suit is partly decreed with cost and partly dismissed without cost. Plaintiff is entitled to realise Rs.1,45,000/- with 12% interest from the date of the