Holding

The appellate court affirmed the trial court’s decree of Rs 1,40,000 with 6% interest, finding no error in the lower court’s findings and dismissing the appeal and cross‑objection.

Summary

The plaintiff, a contractor, performed earth‑filling work on the direction of officials of the defendant department but was not paid. After repeated notices, the plaintiff filed a suit for Rs 4,69,000 with interest; the trial court partially decreed Rs 1,40,000 with 6% interest. The defendants appealed under Section 96 CPC and the plaintiff filed a cross‑objection under Section 41 Rule 22 seeking a higher amount. The appellate court examined the evidence, found the plaintiff’s claim of Rs 4,69,000 unsupported and the work value agreed at Rs 1,40,000, and held that the trial court correctly applied Section 34 CPC for interest. It therefore affirmed the decree of Rs 1,40,000 with 6% interest and dismissed both the appeal and the cross‑objection. The court also approved condonation of delay for bringing heirs in related applications.

Issues considered

Whether the plaintiff proved that the work was performed based on assurances of the defendant officials
Whether the plaintiff is entitled to the claimed amount of Rs 4,69,000
Whether interest at 18% per annum is payable under the contract
Whether the suit is time‑barred
Whether the suit is bad for want of necessary parties
Whether the suit is bad for lack of notice under Section 80 CPC
Whether the plaintiff is entitled to the decree as prayed for in the plaint
What decree and order should be passed by the appellate court
Whether the appellate court should set aside the trial court’s decree of Rs 1,40,000 and the interest awarded

Legislation cited

Code of Civil Procedure, 1908s. 34, s. 80, s. 96

Subjects

Civil ProcedureFirst AppealDecreeInterestSection 80 CPCSection 34 CPCCondonation of DelayBringing HeirsCross ObjectionEvidence Reliability

Judgment

C/FA/1338/2004 JUDGMENT DATED: 11/03/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 1338 of 2004

With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 1338 of 2004
With
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2 of 2025
In CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2025
In R/FIRST APPEAL NO. 1338 of 2004
With
R/CROSS OBJECTION NO. 136 of 2009
In
R/FIRST APPEAL NO. 1338 of 2004
==========================================================
STATE OF GUJARAT & ORS.
Versus
VITTHALBHAI MADHAVLAL PATEL
==========================================================
Appearance:
MR BHARAT VYAS, AGP for the Appellant(s) No. 1,2,3,4
MR KG SUKHWANI(871) for the Defendant(s) No. 1
==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

Date : 11/03/2026

JUDGMENT

1. CA for condonation of delay is filed to condone the delay
in preferring CA for bringing legal heirs of the sole
respondent and to set aside the abatement.

2. Considering the averments made in the application, both
the CAs are disposed of condoning the delay, setting aside the
abatement and permitting the applicants to bring legal heirs
of the respondent on record. Necessary amendment to be
carried out forthwith.

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3. Since deceased respondent has filed cross objection in
the matter, the effect of this order is also given in the cross
objection and accordingly, heirs of deceased respondent are
permitted to be brought on record in the cross objection as
well. Accordingly, amendment shall be carried out in the
cross objection.

4. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.

5. Present First Appeal is directed against the judgment
and decree dated 25.9.2002 passed by the learned 3 rd Joint
Civil Judge (SD), Mehsana, whereby the defendants of the suit
were directed to pay total amount of Rs.1,40,000/- with
interest at the rate of 6% per annum to the plaintiff from filing
of the suit till realization and accordingly, the suit was
decreed.

6. The plaintiff has also filed the cross objection for
recovery of Rs.6,44,875/- from the defendants.

7, Brief facts of the case are as under:-

7.1 The Plaintiff carries on business as contractor at the
address shown in the cause title. The defendant No.2 Shri
Hasmukhbhai G. Nayak Vi snagar Dy. Executive Engineer, R
& B Sub Division, Shri R. G.Patel & Section Officer, Mr.
Pandya all serving under the defendant No.1 approached the

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plaintiff in the month of August. 1996 for executing the side
filling earthwork in embankment from borrow pits and leads
upto 50 meters to 1000 meters on both the sides of the road in
average 2 meter width and average 0.25 meter high thickness
between Vi snagar Umta Sundhia Kheralu Road Km. 21/00 to
41/2.

7.2 That all the above named officers prevailed upon the
plaintiff and convinced that because of Ambaji Mata Bhadarva
Poonam festival lacs of people and " Mataji Sanghas" take
part in the festival by foot (Pagpala) and it is necessary to do
the work. The officers however, expressed their difficulty to
the effect that the work will not be approved by the defendant
No.1 immediately and it will takes some time.

7.3 These officers directed the plaintiff to do the work and
assured that the approval will be obtained from the defendant
No.1. In the meantime the work should be started by the
plaintiff. The Plaintiff accordingly on the assurance of these
officers started the work under the supervision of these
officers. The estimated cost of the work was Rs. 4,75,000/-.

7.4 That between 21/8/1996 to 03/09/1996, seven tractors
were engaged for executing the work between 7.00 A.M. to
13.00 hours and 14.00 hours to 19.00 P.M and between 09-09-
1996 to 24-09-1996, once again, seven tractors were engaged
for executing the work between 7.00 A.M. to 13.00 hours and
14.00 hours to 19.00 P.M.

7.5 The Section Officer had accordingly informed regarding

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the execution of the work to the then concerned Executive
Engineer. That one Shri Manubhai Patel had informed that the
work was executed as per the oral instructions of the then
Executive Engineer nemely Shri Hasmukhbhai G. Nayak. The
work assistant Shri Bhagwanbhai Govindbhai Prajapati also
informed the Executive Engineer regarding the execution of
the work by the plaintiff as stated above.

7.6 After completing the works, payments were demanded
from time to time personally by the plaintiff and on telephone.
The plaintiff had also addressed various Registered Post A.D.
letters from time to time to the Dy. Executive Engineer and
Executive Engineer Viz. 19-11-1996. 26/11/1996, 08/12/1996,
18/12/1996,28/12/1996, 11/01/1997, 01/02/1997, 03/03/1997
& 10/03/1997. That though all these letters were duly served
neither the Dy. Executive Engineer nor the Executive
Engineer paid the amount to the plaintiff nor cared to reply
these Registered Post. A.D. Letters.

7.7 That since the payment was not made and since the
letters were not replied, the registered A.D. notices were
served through advocate Shri Dinesh K. Shah on various
dates. That in spite of the service of these notices the
payment was not made nor the notices were replied.

7.8 Under these circumstances the plaintiff was compelled
to serve the statutory notice as per the provisions of Section
80 of the Civil Procedure Code for the recovery of Rs.
4,69,000/- together with interest @18% per annum from
01/10/1996 till its realisation.

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Since the defendants failed to rely the notice, the plaintiff has
filed Special Civil Suit No.183 of 1998 before the learned trial
Court. The learned trial Court vide judgment and decree
dated 25.9.2002, directed the defendants to pay total amount
of Rs.1,40,000/- with interest at the rate of 6% per annum to
the plaintiff from filing of the suit till realization and
accordingly and thus, partly decreed the suit.

7.9 Against aforesaid order, the defendants have filed the
First Appeal u/s 96 of the Code of Civil Procedure, 1908 (in
short “the Code”). Since, the learned trial Court has not
granted decree as claimed by the plaintiff, the plaintiff has
also filed the cross objection u/s 41 Rule 22 of the Code for
recovery of Rs.6,44,875/- from the defendants.

8. Heard learned AGP Mr. Bharat Vyas for the defendants
and learned advocate Mr. Sukhwani for the plaintiff.

9. It is a case where the plaintiff claimed decree of
Rs.6,44,875/- with interest thereon on the basis that the
plaintiff has completed the work of Rs.6,44,875/- as per work
order and the defendants did not pay the amount due to the
plaintiff for the work, the plaintiff has carried out. As against
the aforesaid, the defendants came out with the defence that
the suit has filed with the mala fide intention. The plaintiff for
the reasons best known to him has not carried out the work,
which was awarded to him under the work order and
therefore, the plaintiff would not be entitled to claim any
compensation.

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10. Following issues were fixed by the learned trial Court at
Exh.15:-

“1. Whether the plaintiff proves that the plaintiff did
disputed work due to assurance given by the
defendant No.2 and his subordinate officers?

2. Whether plaintiff proves that Rs. 4,69,000/- (four
lac sixty nine thousand) is due to the plaintiff ?

3. Whether plaintiff proves that the plaintiff is
entitled to interest at the rate of 18% P.A. from the
defendants?

4. Whether the suit is time barred ?

5. Whether the defendant proves that the suit is bad
for want of necessary parties ?

6. Whether the defendants prove the suit is bad for
want of notice u/s.80 of the C.P.C.?

7. Whether the plaintiff is entitled to decree as
prayed for? in para 12 of the plaint?

8. What order and what decree ?”

11. Both the parties led oral and documentary evidence,
after assessing evidence on record, the learned trial Court
answered issue No.1 in affirmative, issue Nos.2,3 and 7 in
partly affirmative, issue Nos.4 to 6 in negative and suit was
partly decreed in the aforesaid terms while answering issue
No.8. The issue called for in this First Appeal is that whether
the learned Court below has committed serious error in passing
decree of Rs.1,40,000/- with 6% interest and what order?

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12. It is to be noted that the defendants question legality of
passing the decree of Rs.1,40,000/-and claimed that the learned
trial Court has committed serious error in passing the decree,
whereas, the plaintiff filed cross objection claiming that the
learned trial Court has committed serious error in passing
decree of meager amount and also granted interest much lesser
than what could have been granted for commercial transaction.

13. The findings of the learned trial Court in regards to issue
No.2 being gravamen to the rival submissions, reads as under:-

“24. L.A. of Shri N.R. Bhavsar has argued before me that
plaintiff has handed over the suit work from the
defendants officer and said fact has proved by plaintiff.
Defendants witness admitted in their deposition that
plaintiff has completed or the suit work within time. So
far earth work in embankment by earth obtain from
borrow pits plaintiff has estimate the cost Rs.2,89,000/-
at the rate of Rs. 17/- for quantity executed 17,000/- 1-sq
meters so far earthwork in embankment by earth obtain
from lead 50 mtrs. to 1000 mtrs. at the rate of Rs. 30/-
for 3000/- sq. meters plaintiff has estimated Rs.90,000/-
and so far spreading and dressing earth work done for
side filling at the rate of Rs. 4.50 for 20,000/- sq.mtr.
plaintiff has estimated Rs. 90,000/-. Thus plaintiff has
estimated total amount Rs. 4,69,000/- for suit work. In
this suit plaintiff has examined plaintiff Vithalbhai
Machavlal Patel vide Ex.38. He deposed in his deposition
as per plaint. Plaintiff has engaged seven tractors for suit
work and said tractors were anaged for the suit work
between 7.00 a.m. to 13.00 hours and 14-00 hours to 19-
00 p.m. Further argued that plaintiff has angaged
labours for suit work and plaintiff has paid the amount
for labour charge as well as plaintiff has paid amount of
tractors change. So far plaintiff has produced vouchers of
labour cost vide Ex, 119- to. Ex, 161 plaintiff has
completed suit work so far defendants witnesses

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acknowledge by their signature vide letters of Ex.
113,114 Moreover plaintiff has produced his account
diary vide Ex. 161. On the otherhand defendants så de
has not produced any cogent evidence against plaintiff
evidence. Hence plaintiff deposition is believable and
plaintiff is proved his due amount as prayed. Hence
plaintiff is entitled to get the due amount from the
defendants as prayed.

(25) On the other hand learned A. G.P. Shri N.J. Barot has
argued before me that defendants witnesses admitted in
their deposition that plaintiff has completed the suit work.
So there is no di spute regarding the suit work but here in
this suit plaintiff has not produced servey report of pit
work plaintiff has not handed over the suit work by
tender. How many rate was determine between plaintiff
and defendants for suit work. There is no evidence
produced regarding the said fact. Plaintiff has produced
vouchers of labour charge. These vouchers are not
reliable in the evidence. Plaintiff has not examined any
independent witness regarding said vouchers. Moreever
so many vouchers are seem in the thumb impression but
said vouchers are not indenti -fied so said vouchers are
not reliable. Moreover defendants witnesses deposed
their deposition that spreading work was done by
defendants labour and defendants witnesses deposed in
their deposition that plaintiff has due amount only
moreless 1,40,000/- rupees as per their calculation,
Hence plaintiff is not entitled to get amount as prayed.
There is no contract between plaintiff and defendants
regarding rate value. Plaintiff account diary is not reliable
looking to the evidence plaintiff is not entitled to get
amount as prayed from the defendants. Considering the
both side arguments V as well as both the side oral and
documentary evidence it is tressed out that plaintiff has
completed the suit work. It is tressed out from letter of Ex.
113. 114. It is tressed out from Ex.114 that plaintiff has
angaged the fractors for earth-work. It is tressed out from
the evidence that said work has not handed over by
tender. It is tressed out that there is no evidence for rate
value determination. No contract between plaintiff and
defendants regarding rate value. Plaintiff has not

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produced for estimated rate value. In this suit plaintiff
examined plaintiff Shri Vithal bhai Madhavlal Patel vide
Ex. 38 plaintiff admitted in his deposition that he has not
produced any survey report of pit work. Plaintiff side OP e
has produced vouchers of labour court as well as tractors
rent vide Ex. 119 to Ex. 161 but it is tressed out that
vouchers of Ex. 121,123, 136, 139,144,154 & Ex. 155 are
seen in thumb impression Said vouchers are not
identified so said vouchers are not reliable moreover so
far the other bouchers plaintiff has not examined any
independent witness. Having to the evidence these
witnesses are lived in the village of plaintiff eventhough
plaintiff has not put them as a ess. Further it is tressed
out that no number were numbered in the voucher.
Moreover plaintiff has filed this in the year of 1998. At
that time 18 not produced said vouchers evidence but
plaintiff has produced said vouchers after co the evidence
of plaintiff. Hence plaintiff has not produced said
vouchers copy at time of filling suit hence plaintiff said
vouchers evidence is not reliable. Plai nti ff has produced
account diary vide Ex. 161 which evidence also not
produced at the filling of suit. So connective evidence of
account diary is also not t 100 reliable. Of course in the
defendant evidence evisam defendant witness Shri
Bhagvanbhai Govindbhai Prajapati vide Ex. 177 and Shri
Manubhai Shankarlal Patel vide Ex. 178 deposed their
deposition that plaintiff has done work moreless Rs.
1,40,000/- ( one lack fourty thousand rupees). So it is
tressed out from defendant evidence that plaintiff has
done suitwork e suitwork of Rs. 1;40,000/- Defendant
witness Shri Bhagvanbhai Govindbhai Prajapati was a
work assistant at the time of suit work and his
supervision suit work was done. : . Hencehis deposition
is reliable so far far the said di spute. Hence considering
the evidences) plaintiff has entited to get due amount
from the defendants Rs. 1,40,000/- plaintiff is not proved
to cogent evidence for due amount Rs. 4,69,000/- from
defendants. Hence my reply of said issue No.2.
accordingly partly affirmative.”

14. According to this Court, the learned trial Court has given

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cogent, convincing and compulsive reasons to award
Rs.1,40,000/- as the oral deposition of the plaintiff as well as
the defendants’ witness agreed on the figure that work of
Rs.1,40,000/- was done by the plaintiff. In that circumstances,
I find no illegality in the impugned judgment and decree.
Learned advocates appearing for both the parties have failed
to bring any other circumstances, which compelled the Court
to interfere with the impugned order.

15. In case between Laliteshwar Prasad Singh v.
S.P.Srivastava (D), reported in 2017 (2) SCC 415, the Supreme
Court in regards to the applicability of Order XLI Rule 31 of ‘the
Code’, held that when appellate Court agrees with the view of the
trial Court on evidence, it need not to restate the facts or
evidence or reiterate the reasons given by trial Court; the
expression of general agreement with reason given by the trial
Court would ordinarily suffice. It is further held by the Supreme
Court that, merely not framing the separate points of
determination of law would not render the appellate Court’s
judgment against the settled principle of law, provided that the
judgment covers all important questions involved in the case and
it should not be general and vague. Para 12 and 13 thereof reads
as under:-

“12. An appellate court is the final court of facts. The
judgment of the appellate court must therefore reflect court's
application of mind and record its findings supported by
reasons. The law relating to powers and duties of the first
appellate court is well fortified by the legal provisions and
judicial pronouncements. Considering the nature and scope

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of duty of first appellate court, in Vinod Kumar v.
Gangadhar, 2015(1) R.C.R.(Civil) 598 : 2015(1) Recent Apex
Judgments (R.A.J.) 285 : (2015) 1 SCC 391, it was held as
under:-

"12. In Santosh Hazari v. Purushottam Tiwari, 2001(3)
R.C.R.(Civil) 243 : (2001) 3 SCC 179, this Court held as
under: (SCC pp. 188-89, para 15)

"15. ... The appellate court has jurisdiction to reverse or
affirm the findings of the trial court. First appeal is a
valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all
the issues arising along with the contentions put forth,
and pressed by the parties for decision of the appellate
court. ... while reversing a finding of fact the appellate
court must come into close quarters with the reasoning
assigned by the trial court and then assign its own
reasons for arriving at a different finding. This would
satisfy the court hearing a further appeal that the first
appellate court had discharged the duty expected of it."

The above view has been followed by a three-Judge
Bench decision of this Court in Madhukar v. Sangram,
2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756, wherein it
was reiterated that sitting as a court of first appeal, it is
the duty of the High Court to deal with all the issues and
the evidence led by the parties before recording its
findings.

13. In H.K.N. Swami v. Irshad Basith, (2005) 10 SCC
243, this Court stated as under: (SCC p. 244, para 3)

"3. The first appeal has to be decided on facts as well as
on law. In the first appeal parties have the right to be
heard both on questions of law as also on facts and the
first appellate court is required to address itself to all
issues and decide the case by giving reasons.
Unfortunately, the High Court, in the present case has not

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recorded any finding either on facts or on law. Sitting as
the first appellate court it was the duty of the High Court
to deal with all the issues and the evidence led by the
parties before recording the finding regarding title."

14. Again in Jagannath v. Arulappa (2005) 12 SCC 303,
while considering the scope of Section 96 of the Code of
Civil Procedure, 1908, this Court observed as follows:
(SCC p. 303, para 2)

15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy,
2011(1) R.C.R.(Civil) 802 : 2011(1) Recent Apex
Judgments (R.A.J.) 222 : (2010) 13 SCC 530, this Court
taking note of all the earlier judgments of this Court
reiterated the aforementioned principle with these words:
(SCC pp. 530-31, paras 3-5)

"3. How the regular first appeal is to be disposed of by
the appellate court/High Court has been considered by
this Court in various decisions. Order 41 CPC deals with
appeals from original decrees. Among the various rules,
Rule 31 mandates that the judgment of the appellate
court shall state:

(a) the points for determination;

(b) the decision thereon;

(c) the reasons for the decision; and

(d) where the decree appealed from is reversed or varied,
the relief to which the appellant is entitled.

4. The appellate court has jurisdiction to reverse or affirm
the findings of the trial court. The first appeal is a
valuable right of the parties and unless restricted by law,
the whole case is therein open for rehearing both on
questions of fact and law. The judgment of the appellate
court must, therefore, reflect its conscious application of
mind and record findings supported by reasons, on all
the issues arising along with the contentions put forth,
and pressed by the parties for decision of the appellate
court. Sitting as a court of first appeal, it was the duty of

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the High Court to deal with all the issues and the
evidence led by the parties before recording its findings.
The first appeal is a valuable right and the parties have a
right to be heard both on questions of law and on facts
and the judgment in the first appeal must address itself
to all the issues of law and fact and decide it by giving
reasons in support of the findings. (Vide Santosh Hazari
v. Purushottam Tiwari, 2001(3) R.C.R.(Civil) 243 : (2001)
3 SCC 179, SCC p. 188, para 15 and Madhukar v.
Sangram, 2001(2) R.C.R.(Civil) 704 : (2001) 4 SCC 756
SCC p. 758, para 5.)

5. In view of the above salutary principles, on going
through the impugned judgment, we feel that the High
Court has failed to discharge the obligation placed on it
as a first appellate court. In our view, the judgment under
appeal is cryptic and none of the relevant aspects have
even been noticed. The appeal has been decided in an
unsatisfactory manner. Our careful perusal of the
judgment in the regular first appeal shows that it falls
short of considerations which are expected from the court
of first appeal. Accordingly, without going into the merits
of the claim of both parties, we set aside the impugned
judgment and decree of the High Court and remand the
regular first appeal to the High Court for its fresh disposal
in accordance with law."

13. The points which arise for determination by a
court of first appeal must cover all important questions
involved in the case and they should not be general and
vague. Even though the appellate court would be justified
in taking a different view on question of fact that should
be done after adverting to the reasons given by the trial
judge in arriving at the finding in question. When
appellate court agrees with the views of the trial court on
evidence, it need not restate effect of evidence or reiterate
reasons given by trial court; expression of general
agreement with reasons given by trial court would
ordinarily suffice. However, when the first appellate court
reverses the findings of the trial court, it must record the
findings in clear terms explaining how the reasonings of
the trial court is erroneous.”

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16. So far as interest part is concerned, in absence of any
contractual obligation to pay interest on the amount due, the
learned trial Court has rightly referred to section 34 of the Code
and passed the decree granting 6% interest per annum. I see no
reason to even interfere with the interest part

17. Resultantly, present First Appeal as well as cross
objection fail and stand dismissed.

18. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 12/03/2026 16:10:04

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