Delhi District Court
Satinder Kaur vs Pritam Lal(Dro) on 28 January, 2014
Satinder Kaur Vs Pritam Lal(DRO)
IN THE COURT OF VIPLAV DABAS
CIVIL JUDGE-11 (CENTRAL) : DELHI
Civil Suit No. : 191/13
Unique Case ID No : 02401C0293562009
In the matter of:
Smt. Satinder Kaur
W/o Shri Prabhjot Singh
R/o 22, Banarsi Dass Estate,
Timarpur, Delhi-110054 .............. Plaintiff
Vs
Shri Pritam Lal(DRO)
Office of the Deputy Conservator of Forests(West)
Mandir Lane, Near Birla Mandir,
Mandir Marg,
New Delhi-110060 .............. Defendant
Date of institution of the Suit : 10.07.2009
Date on which order was reserved : 28.01.2014
Date of decision : 28.01.2014
SUIT FOR RECOVERY OF Rs. 1,00,000/-(Rupees One Lac Only) AS
DAMAGES
JUDGMENT
1) Present suit was filed in the year 2009 seeking recovery of Rs. 1,00,000/- alongwith interest @ 24 % from the date of institution of the suit till its realization in favour of the plaintiff and against the defendant.
2) It is averred in the plaint that the plaintiff had participated in various tenders for maintenance and plantation by the forest department(west Division), that the plaintiff was awarded work for plantation at Qutabgarh City Forest vide work order no. F.2(280)/DCF(W)/ Plantation/ 07/1618/1921 dated 02.05.2008 and the same was taken up vide 1/11 Satinder Kaur Vs Pritam Lal(DRO) agreement dated 19.04.2008, that the plaintiff's bill no. 008 dated 04.08.2008 for the period 19.04.2008 to 18.07.2008 and bill no. 009 dated 30.10.2008 for the period 19.07.2008 to 18.10.208 amounting to Rs. 1,26,060/- each for the maintenance of the plantation at Qutubgarh City Forests was processed and approved by the defendant as 80 % of the billing amount of Rs. 1,26,060/- with malafide intention, conspiracy and connivance with the Deputy Conservator of Forest(West), that the defendant reduced the approved amount to 10 % by forging and fabricating with dishonest intention by forging the approved amount on the reverse side of the bill on 01.05.2009, that the plaintiff had also submitted bill no. 012 dated 29.01.2009 for Rs. 1,26,060/- for maintenance of plantation at Qutubgarh City Forest for the third quarter(19.10.2008 to 18.01.2009. It is further averred that under the supervision of the defendant counting of the standing plantation at Qutabgarh City Forest was taken up by the labourers of defendant on 11.02.2009 and it was found that more than 90 % of the plantation was alive and standing as well as a report was prepared under the direction of the defendant where all the labouers are signatories which clearly reflects the standing plantation to be more than 90 % during the third quarter.
It is further averred that the that the defendant has also indulged in repetition of further forgery, etc by playing calculated fraud creating evidence by fraudulent means by suddenly canceling the 10 % billing amount on the reverse side of the body of the bill on 05.05.2009 at the behest of the DCF(West) approving 40% of the billing amount on the reverse of the body of the Bill No. 009 dated 30.10.2008 because of illegal demand of gratification by the defendant. It is stated that this clearly indicates that the defendant and DCF(West) are in connivance and collusion with each other and hatched a conspiracy against the plaintiff. It 2/11 Satinder Kaur Vs Pritam Lal(DRO) is further averred that the plaintiff sent a notice dated 08.05.2009 to the defendant through his counsel but to no avail. It is further averred that the illegal acts on the part of the defendant and the DCF(West) has indeed made out a water tight case of criminal conspiracy, forgery, fabrication, manipulation with dishonest intention by withholding the payment of the plaintiff and that the plaintiff has already lodged a complaint u/s 167/168/181/182/420/422/468/471/120 B IPC with PS Mandir Marg, New Delhi-110060 vide DD No.30 B, 09.05.2009 and copies to higher authorities.
It is further averred that the cause of action arose in favour of the plaintiff when the plaintiff was awarded plantation work vide agreement dated 19.04.2008, it further arose when bill no. 008 dated 04.08.2008 for Rs. 1,26,060/- for the period 19.04.2008 to 18.07.2008 and 2nd quarter bill no. 009 dated 30.10.2008 for Rs.1,26,060/- for the period 19.07.2008 to 18.10.2008 were processed and approved by defendant as 80 % of billing amount and with the malafide intention and in connivance with the DCF(West) defendant reduced the approved amount to 10% by forging and fabricating with dishonest intention on the reverse side of the body of the bill on 01.05.2009. It is further averred that the cause of action further arose on 29.01.2009 when the plaintiff submitted bill no. 012 dated 29.01.2009 for Rs. 1,26,060/- for 3rd quarter bill for the period 19.10.2008 to 18.01.2009, it further arose on 11.02.2009 when under the supervision of defendant counting of standing plantation by the labourers was taken up and it was found that more than 90 % plantation were alive, that it again arose on 08.05.2009 when the plaintiff sent the notice and when the defendant indulged in processing bill no. 012 dated 29.01.2009 by approving 60 % of the billing amount on the reverse side of the bill no. 012 dated 29.01.2009 instead of 90 % which was actual standing plantation 3/11 Satinder Kaur Vs Pritam Lal(DRO) and it further arose on 09.05.2009 when the plaintiff made a complaint in writing to SHO PS Mandir Marg, New Delhi and is still subsisting as the defendant has not cleared the outstanding bills of plaintiff till date.
3) It is averred in the written statement filed on behalf of defendant that suit of the plaintiff is bad for non-joinder and mis-joinder of necessary parties, that the suit is barred by provisions of Order 2 rule 2 & 3 of CPC and that the suit is liable to be rejected under order 7 rule 11 CPC. It is denied that the defendant with malafide intention and in conspiracy and connivance with the Deputy Conservator of Forests(West) reduced the approved amount to 10 % by forging and fabricating with dishonest intention on the reverse side of the body of the bill on 01.05.2009, that under the supervision of the defendant counting of the standing plantation at Qutabgarh City Forest was taken up by the labourers of defendant on 11.02.2009 and it was found that more than 90 % of the plantation was alive and standing as well as a report was prepared under the direction of the defendant where all the labourers are signatories which clearly reflects the standing plantation to be more than 90 % during the third quarter and that the defendant has indulged in repetition of further forgery, cheating, fabrication, manipulation and fraudulence by canceling the 10 % of billing amount on the reverse side of the body of the bill at the behest of the Deputy Conservator of Forest(West) and approved 40 % of the billing amount on the reverse side of the bill no. 009 dated 30.10.2008. It is denied that cause of action ever arose in favour of the plaintiff and against the defendant.
4) In replication filed on behalf of the plaintiff to written statement of defendant, all the contrary contentions of the defendant were denied by the 4/11 Satinder Kaur Vs Pritam Lal(DRO) plaintiff and the contents of the plaint were re-affirmed.
5) On the basis of the pleadings of the parties following issues were framed on 23.02.2010 by the Ld. Predecessor Court.
1) Whether the plaintiff is entitled to recover the amount claimed in the plaint? OPP.
2) Whether the plaintiff is entitled to recover the interest, if yes at what rate? OPP.
3) Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD.
4) Whether the suit of the plaintiff is not maintainable in the present form? OPD.
5) Relief 6) Plaintiff led evidence in order to establish her case and examined
herself as PW-1 by filing evidentiary affidavit Ex. PW-1/A and relied upon the following documents i.e photocopy of agreement exhibited as Ex. PW- 1/1(already exhibited as Ex. PW-2/1), copy of notice, UPC and postal receipt exhibited as Ex. PW-1/2 to Ex. PW-1/4 respectively, copy of complaint dated 09.05.2009 vide DD No. 39 B exhibited as Ex. PW- 1/6(already exhibited as Ex. PW-2/2) and complaint dated 09.05.2009 vide DD No. 39 B is de-exhibited and marked as Mark A. The plaintiff also brought witness namely Sh. Ganesh Dutt(PW-2), Sh. Prabhjot Singh(PW-
3) and Sh. Mahanand Sharma, Labour(PW-4) from Deputy Conservator of Forest, West Division who were also examined and discharged. Thereafter, the plaintiff's evidence was closed on recording of statement of plaintiff. The Defendant examined himself as DW-1 by filing his evidentiary affidavit and was discharged after cross examination. Thereafter, 5/11 Satinder Kaur Vs Pritam Lal(DRO) Defendant's evidence was closed on recording of statement of defendant and matter was fixed for final arguments.
7) I have carefully gone through the material available on record and heard the arguments advanced by Ld. Counsel for parties. The issue wise findings are as under:-
Issue No.1 Whether the plaintiff is entitled to recover the amount claimed in the plaint? OPP.
Issue No.2 Whether the plaintiff is entitled to recover the interest, if yes at what rate? OPP.
Issue No.3 Whether the suit of the plaintiff is bad for non-joinder of necessary parties? OPD.
Issue No.4 Whether the suit of the plaintiff is not maintainable in the present form? OPD.
All these issues are being decided together as they are interconnected. The plaintiff deposed in the evidentiary affidavit in consonance with the plaint that the plaintiff had participated in various tender for maintenance of the plantations by the Forest Department(West) Division during the year 2007-2008 and 2008-2009 and was awarded the maintenance work for plantation at Qutabgarh Forests vide work order no. F.2(208)/ DCF(W)/ Plantation/ 07/1618-1621 dated 02.05.2008 and the same was taken up vide agreement dated 19.04.2008. It is the case of the plaintiff that plaintiff's bill no. 008 dated 04.08.2008 for Rs. 1,26,060/- for 6/11 Satinder Kaur Vs Pritam Lal(DRO) the first quarter i.e from 19.04.2008 to 18.07.2008 for maintenance of the plantation was processed by the defendant for payment by the Deputy Conservator of Forests(West) and the same was passed as 80 % of the billing amount by the defendant and the payment was accordingly released by the DCF(West) to the plaintiff.
It is further deposed that thereafter the 2 nd quater bill no. 09 dated 30.10.2008 for Rs. 1,26,060/- for period 19.07.2008 to 18.10.2008 for maintenance of the plantation at Qutabgarh City Forests was processed and approved by the defendant again as 80 % of the billing amount for Rs.
1,26,060/-, that the defendant with the conspiracy and connivance of the Deputy Conservator of Forests(West) reduced the approved amount to 10 % by forging and fabricating with dishonest intention the approved amount on the reverse side of the body of the bill on 01.05.2009, due to ulterior motive and annoyance on the part of the defendant and DCF(West) with the plaintiff and her husband.
It is further deposed by the plaintiff that the defendant has also indulged in repetition of further forgery, etc by playing calculated fraud creating evidence by fraudulent means by suddenly canceling the 10 % billing amount on the reverse side of the body of the bill on 05.05.2009 at the behest of the DCF(West) approving 40% of the billing amount on the reverse of the body of the Bill No. 009 dated 30.10.2008 because of illegal demand of gratification by the defendant. It is further stated that this clearly indicates that the defendant and DCF(West) are in connivance and collusion with each other and hatched a conspiracy against the plaintiff.
It is further deposed that the defendant has caused great mental agony torture and pain to the plaintiff which can not be assessed or compensated in term of recovery/ pecuniary damages however, plaintiff claims Rs. 1 lac as compensation and damages for committing the alleged 7/11 Satinder Kaur Vs Pritam Lal(DRO) illegal acts. It is further deposed that the illegal act on the part of the defendant and the Deputy Conservator of Forest(West) has made out a water tight case of criminal conspiracy, forgery, fabrication, manipulation with dishonest intention on part of Defendant and the Deputy Conservator of Forest (West) for fraudulently withholding the payment of the plaintiff and that the plaintiff has already lodged a complaint u/s 167/168/181/182/420/422/468/471/120 B IPC with PS Mandir Marg, New Delhi vide DD No. 30B dated 09.05.2009.
It is deposed that the cause of action arose in favour of the plaintiff when the plaintiff was awarded plantation work vide agreement dated 19.04.2008, it further arose when bill no. 008 dated 04.08.2008 for Rs. 1,26,060/- for the period 19.04.2008 to 18.07.2008 and 2nd quarter bill no. 009 dated 30.10.2008 for Rs.1,26,060/- for the period 19.07.2008 to 18.10.2008 were processed and approved by defendant as 80 % of billing amount and with the malafide intention and in connivance with the DCF(West) defendant reduced the approved amount to 10% by forging and fabricating with dishonest intention on the reverse side of the body of the bill on 01.05.2009. It is further averred that the cause of action further arose on 29.01.2009 when the plaintiff submitted bill no. 012 dated 29.01.2009 for Rs. 1,26,060/- for 3rd quarter bill for the period 19.10.2008 to 18.01.2009, it further arose on 11.02.2009 when under the supervision of defendant counting of standing plantation by the labourers was taken up and it was found that more than 90 % plantation were alive, that it again arose on 08.05.2009 when the plaintiff sent the notice and when the defendant indulged in processing bill no. 012 dated 29.01.2009 by approving 60 % of the billing amount on the reverse side of the bill no. 012 dated 29.01.2009 instead of 90 % which was actual standing plantation and it further arose on 09.05.2009 when the plaintiff made a complaint in 8/11 Satinder Kaur Vs Pritam Lal(DRO) writing to SHO PS Mandir Marg, New Delhi and is still subsisting as the defendant has not cleared the outstanding bills of plaintiff till date.
Perusal of the record shows that the plaintiff was awarded maintenance work for plantation at Qutabgarh City Forest in terms of agreement executed between the President of India through Deputy Conservator of Forest and the plaintiff. It is also apparent from the record that the plaintiff has impleaded the defendant by giving his official designation as DRO with address at office of the Deputy Conservator of Forest(West) which indicates that the defendant is not being sued in personal and independent capacity. It is further observed from careful reading of the para 9, 11 and 14 of the plaint that the version of the plaintiff is that the defendant did alleged illegal acts with the conspiracy and connivance of Deputy Conservator of Forest(West) which shows that the alleged acts can not be considered to have been committed by the present defendant in his individual capacity. Furthermore, in paragraph 14 regarding the cause of action, plaintiff states that the cause of action is still continuing as the defendant has not cleared the outstanding bills of the plaintiff till date which indicates that the plaintiff is seeking recovery/ damages from the defendant in his official capacity as defendant can by no stretch of imagination be considered liable to make the payment of the outstanding bills in his personal capacity. A close scrutiny of the plaint and the evidentiary affidavit of the plaintiff shows that all the allegations have been made against the defendant in his official capacity as DRO and the department i.e DCF(West) has not been made a party which is necessary for proper adjudication of the present suit. It is also clear from aforesaid discussion and the record that no cause of action has arisen against the defendant in his personal capacity and the cause of action exists against the defendant in his official capacity as DRO for which the department 9/11 Satinder Kaur Vs Pritam Lal(DRO) should also have been made a necessary party which in turn gives rise to the mandatory requirement of issuance of notice under section 80 CPC to the defendant prior to the institution of the suit. It thus emerges from the afore-discussed facts that the present suit is bad for non-joinder of necessary party which is the department and is as such not maintainable for want of necessary parties, want of cause of action and notice under section 80 CPC. So, issue no. 3 and 4 that the suit of the plaintiff is bad for non-joinder of necessary parties and is not maintainable in the present form are decided in favour of the defendant and against the plaintiff.
Furthermore, if it is assumed for the sake of arguments that the defendant is personally liable to pay the suit amount of Rs. 1 lac to the plaintiff by way of damages as demanded still perusal of the record shows that the plaintiff has failed to show as to how and in what manner the alleged conduct of the defendant has caused great mental, physical harm and agony to the plaintiff besides also causing depression which is inferred from plaintiff's admission in the cross examination dated 27.05.2013 that she has not brought any documents on record to support the contention that she has suffered great mental and physical harm and agony besides suffered depression for which she has allegedly incurred Rs. 1 lac as expenses. The omission on the part of the plaintiff to substantiate her claim of damages of Rs. 1 lac based on the aforesaid allegations by furnishing any document i.e medical record etc or other consistent evidence render her claim as vague and bald which can not be believed in the present facts. It thus shows that the plaintiff has failed to raise a preponderance of probability showing that the illegal act on the part of the defendant has caused great mental, physical harm and agony to the plaintiff besides also causing depression which further renders the plaintiff's claim of damages 10/11 Satinder Kaur Vs Pritam Lal(DRO) of Rs. 1 lac alongwith interest thereon as nugatory.
In view of the findings of issue no.3 and 4 and aforesaid discussion, the issue no.1 and 2 as to whether the plaintiff is entitled to recover the amount claimed in the plaint and interest are decided in favour of the defendant and against the plaintiff.
Issue No.5 Relief In view of the findings on the aforesaid issues no.1 to 4, the suit of the plaintiff is hereby dismissed.
Parties are left to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to record room after due compliance.
Announced in the open court (VIPLAV DABAS)
today i.e on 28.01.2014 CJ-11/CENTRAL/DELHI
28.01.2014
11/11