Himachal Pradesh High Court
State Of H.P. And Others vs Anant Ram Negi And Others on 3 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 467 of 2012 .
Decided on: 03.07.2018 State of H.P. and others Appellants/Defendants Versus Anant Ram Negi and others ...Respondents/Plaintiff. _____________________________________________________________ Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting? 1 No For the Appellants: Mr. Vinod Thakur and Mr. Sudhir Bhatnagar, Additional Advocate Generals.
For the Respondents: Mr. Praveen Chauhan, Advocate, vice Mr. Y.P. Sood, Advocate, for respondent No.1. _________________________________________________________ Justice Tarlok Singh Chauhan, Judge (oral):
The defendants/appellants being aggrieved by the judgment and decree passed by learned trial Court on 15.10.2011 in Civil Suit No.21S/1 of 1997/02 whereby the plaintiff/respondent No.1 suit has been decreed and he has been held entitled to compensation of Rs.50,000/ alongwith interest at the rate of 12% per annum from the date of institution till payment with proportionate costs, has preferred this Regular First Appeal.1
Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 2
2. Brief facts of the case are that the plaintiff/respondent No.1 herein, filed a suit for recovery of .
Rs.3,15,042/ against the defendants on the ground that he had purchased 37 Deodar trees and 162 Kail trees of different classes from Smt. Belmu and other persons in revenue estate Kalna (Theog).The profess for felling of trees was completed. However, a complaint was filed against the plaintiff for illicit felling of trees and subsequently, a case under Sections 3, 4, and 16 of the Himachal Pradesh Land Preservation Act (for short 'Act') was registered against him.
The forest officials seized 770 scants of various sizes of Deodar and Kail trees. The plaintiff was prosecuted and the said proceedings culminated into acquittal vide judgment passed by learned Sub Divisional Judicial Magistrate, Theog on 27.9.1985, but the forest produce was ordered to be confiscated and forfeited in favour of the appellants. The plaintiff/respondent No.1 appealed against the order relating to the disposal of the forest produce and the same was allowed by learned Sessions Judge, vide its order dated 30.11.1987 and the forest produce was ordered to be returned to the plaintiff.
3. The appellants assailed the order passed by the learned Sessions Judge by filing Revision Petition No. 46 of ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 3 1988 before this Court, but the same was dismissed vide order dated 22.12.1992. The appellants thereafter assailed .
the order passed by this Court before the Hon'ble Supreme Court by filing Special Leave to Appeal, but the same was also dismissed vide order dated 05.05.1997.
4. During the pendency of the appeal before the Court of Sessions, the plaintiff on 20.2.1987 had applied for disposal of the forest produce on the ground that the State had not properly stacked and preserved the forest produce and due to vagaries of weather it was bound to decay. The appellants did not oppose this application and the learned Sessions Judge vide its order dated 24.02.1987 had passed the order of disposal of the forest produce within 45 days through the defendants No. 3 to 5/appellant No.3 and proforma respondents No. 2 and 3. However, instead of carrying into execution order, appellant No.1 assailed the order before this Court and this Court stayed the operation of the aforesaid order. However, later on vide order dated 26.8.1988 this Court directed the forest produce to be disposed of within six weeks after notice to the plaintiff/respondent No.1.
5. It was averred that the appellants did not comply with the aforesaid order within the stipulated time ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 4 and also mixed up the timber belonging to the plaintiff with the timber of three other cases and eventually held auction .
on 04.11.1988 without any intimation to the plaintiff. It was averred that on inquiry the proforma respondent No.3/defendant No.5 had orally informed the plaintiff/respondent No.1 that the timber belonging to him had been sold for sale consideration of Rs.1,08,789/, whereas the entire lot of timber had been sold for Rs.5,99,313/. Admittedly, the plaintiff/respondent No.1 was paid Rs.1,08,789/, however, his claim was that in November, 1988, his timber as per the rates determined by defendants No. 4 and 5 vide letter dated 19.4.1988 was to be sold for Rs.2,31,046/ and not Rs.1,08,789/ and, therefore, he was entitled to the shortfall of Rs.1,22,257/ alongwith interest at the rate of 18% per annum from 27.10.1988 to 31.07.1997 and in this manner he was entitled to the following amount: Rs.1,22,257/+ Rs.1,92,785/(on account of interest) = Rs.3,15,042/.
6. The appellants/defendants No. 1 to 3 contested the suit by filing written statement wherein preliminary objections regarding limitation, estoppel, nonservice of mandatory notice under Section 80 CPC and resjudicata were raised. On merits, it was contended that the plaintiff ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 5 had unauthorisedly and illegally felled Deodar and Kail trees of different classes without the permission of forest officials.
.
Not only this, he had taken the timber to the road head and, therefore, the forest officials had rightly seized the timber.
The plaintiff had been prosecuted and he was acquitted, but the same was on technical grounds. They admitted the factual aspect with regard to the legal proceedings, but they denied that Belmu and others had sold the Deodar and Kail trees to the plaintiff. It was further averred that the defendants had rightly stacked the forest produce and they were not negligent in keeping or disposing of the same. It was further averred that the claim of the plaintiff for rates of timber issued by proforma respondents No. 2 and 3 on 19.4.1988 was held to be baseless and, therefore, the plaintiff was not entitled to the amount of Rs.1,22,257/ or interest thereon.
7. The proforma respondents No. 2 and 3/ defendants No. 4 and 5 filed separate written statement and contested the suit wherein it was stated that in compliance to the orders passed by this Court on 26.8.1988 they promptly taken action in the matter and after publishing the notice in the newspaper and after sending the telegraphic notice to respondent No.1/plaintiff, they conducted the ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 6 auction. Entire lot could not be sold since the timber was of B and C class and buyers were not prepared to buy the .
same, therefore, the timber had to be sold in parts upto 1991. The plaintiff/respondent No.1 did not file any objection and permitted the timber to be sold and, therefore, the plaintiff was not entitled to the amount claimed from defendants No.4 and 5/proforma respondents No.2 and 3.
8. On the pleadings of the parties, the learned trial Court on 19.6.1998 framed the following issues:
i) Whether the State of H.P. and its servants were negligent in protecting the timber from the date of its seizure upto the date of its auction and due to such negligence the timber got damaged as alleged? OPP
ii) Whether the defendants No. 4 and 5 were also negligent in disposing of the timber under the orders of the Court and they did not take suitable measures and steps to sell the timber at prevailing market rate? OPP
iii) Whether the defendants No.4 and 5 did not sell the seized timber in spite of the orders from the Court within the time limit fixed by the Court. If so, its effect? OPP
iv) If issues No.(i), (ii) and (iii) are proved, whether the plaintiff is entitled for damages, if so, how much and from whom?
OPP
v) Whether the suit is barred by time? OPD
vi) Whether the suit has been filed without serving a valid and
legal notice under Section 80 CPC, if so, its effect? OPD
vii) Whether the plaintiff is estopped to sue by his acts, deeds and conduct?OPD
viii) Whether the suit is barred by principle of resjudicata? OPD
ix) Relief.::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 7
9. After recording the evidence and evaluating the same, .
the suit filed by the plaintiff was partly decreed and he was held entitled to compensation of Rs.50,000/ alongwith interest at the rate of 12% per annum from the date of institution till payment with proportionate costs.
10. Aggrieved by the judgment and decree passed by the learned trial Court, the appellants have filed the present appeal on the ground that the findings recorded by the learned Courts below are perverse and, therefore, deserves to be setaside.
I have heard learned counsel for the parties and have gone through the material placed on record.
11. Admittedly, this is a first appeal and the jurisdiction of this Court while hearing the same is very wide like the learned trial Court and it is open to the defendants to attack all findings on fact and/or on law in the first appeal and would have to be decided on the basis of following exposition of law as propounded by the Hon'ble Supreme Court in Shasidhar and others versus Ashwini Uma Mathad and another, (2015) 11 SCC 269, wherein it was observed as under: "10. The powers of the first appellate Court, while deciding the first appeal under Section 96 read with Order XLI Rule 31 of the Code, are indeed well defined by various judicial pronouncements of this Court and are, therefore, no more res integra.
::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 811. As far back in 1969, the learned Judge V.R. Krishna Iyer, J (as His Lordship then was the judge of Kerala High Court) while deciding the first appeal under Section 96 of the CPC in .
Kurian Chacko vs. Varkey Ouseph, AIR 1969 Kerala 316, reminded the first appellate Court of its duty as to how the first appeal under Section 96 should be decided. In his distinctive style of writing and subtle power of expression, the learned judge held as under: (SCC OnLine Ker paras 13) "1. The plaintiff, unsuccessful in two Courts, has come up here aggrieved by the dismissal of his suit which was one for declaration of title and recovery of possession. The defendant disputed the plaintiff's title to the property as also his possession and claimed both in himself. The learned Munsif, who tried the suit, recorded r findings against the plaintiff both on title and possession. But, in appeal, the learned Subordinate Judge disposed of the whole matter glibly and briefly, in a few sentences.
2. An appellate court is the final Court of fact ordinarily and therefore a litigant is entitled to a full and fair and independent consideration of the evidence at the appellate stage. Anything less than this is unjust to him and I have no doubt that in the present case the learned Subordinate Judge has fallen far short of what is expected of him as an appellate Court.
3.Although there is furious contest between the counsel for the appellant and for the respondent, they appear to agree with me in this observation."
(Emphasis supplied)
12. This Court in a number of cases while affirming and then reiterating the aforesaid principle has laid down the scope and powers of the first appellate Court under Section 96 of the Code. We consider it apposite to refer to some of the decisions.
13. In Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs. (2001) 3 SCC 179, this Court held as under: (SCC pp. 18889, para 15) ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 9 "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 threeJudge Bench decision of this Court in Madhukar & Ors. v. Sangram & Ors., (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.
14. 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 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."
15. Again in Jagannath v. Arulappa & Anr., (2005) 12 SCC 303, while considering the scope of Section 96 of the Code this Court observed as follows: (SCC p.303, para 2) "2. A court of first appeal can reappreciate the entire evidence and come to a different conclusion........."
::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 1016. Again in B.V Nagesh & Anr. vs. H.V. Sreenivasa Murthy, (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. 53031, paras 35) "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 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 SCC 179 at p. 188, para 15 and Madhukar v. Sangram, (2001) 4 SCC 756 at 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 ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 11 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."
17. The aforementioned cases were relied upon by this Court while reiterating the same principle in State Bank of India & Anr. vs. Emmsons International Ltd. & Anr., (2011) 12 SCC
174. This Court has recently taken the same view on similar facts arising in Vinod Kumar vs. Gangadhar, 2014(12) Scale
171."
12. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under: "26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:
::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 121. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to .
behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language r (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 13 Articles 32 and 226 of the Constitution observed as under:
(SCC p.14, paras 910) .
"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officercum Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 31617, para
7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court reappreciate the primary or perceptive facts which were otherwise within the domain of the factfinding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness as distinguished from the legal permissibility of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the ::: Downloaded on - 06/07/2018 22:59:34 :::HCHP 14 vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
13. What is 'perverse' has further been considered by this .
Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner: "25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 1514. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan .
Devi and others (2016) 3 SCC 78 wherein it was held as under: "8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph11 that: (SCC pp. 19293) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) "10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlordtenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 1611. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without .
his consent. Attempt by the respondentdefendants to establish otherwise has been found to be totally nonacceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW2 has also supported the case of the plaintiff.
Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs1 and 2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re appreciation of the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law framed by the High Court are not substantial questions of law. Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of ::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 17 evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts. To him, if the .
conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278
79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity visàvis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 18
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or .
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity."::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 19
15. In order to determine whether the findings recorded by the learned trial Court are perverse, it would be necessary to .
refer to the oral as well as documentary evidence led by the parties.
16. PW1 R.S. Jaswal, who had been working as Sub Divisional Manager had produced the record relating to the sale of timber in question. Ex.P1 was the price list of sale of timber of
17.
r to November, 1988. The timber belonging to the plaintiff as per list Ex.P2 had been sold vide document Ex.P3.
PW2 Ramesh Negi was Assistant Manager of defendant No.4 and had taken possession of the timber vide document Ex.P4 on 14.09.1988.
18. PW3 K.S. Shandil was Office Manager of defendant No.4 and had produced the rate list of timber prevailing in the year 1988 vide Ex.P6.
19. PW4 Jai Ram had stated that the plaintiff was forest lessee and had purchased Deodar and Kail trees in revenue estate Kalna in 198182. He further claimed to have been deployed by the plaintiff for conversion work of timber wherein he alongwith his men had extracted 800 scants approximate of A Class of Deodar and Kail. After extraction, the timber had been stacked on road side in Dhulda.
::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 2020. PW5 Sant Ram had been working with the plaintiff and had got felling and conversion work of timber done from PW4 .
and his men. According to him, the timber was of A Class and had been stacked on road side. He further claimed that the forest officials had seized the timber and had not made any provision for its protection from vagaries of whether as a result whereof, the same got deteriorated before its disposal.
21. PW6 Anant Ram is the plaintiff himself, who in support of the suit tendered in evidence documents Ex.P7 to Ex.P16.
22. On the other hand, defendants No.1 to 3 examined DW3 Madan Singh and DW4 Mohan Lal. Both of them had been working as Forest Guards in the area from where the forest produce had been extracted by the plaintiff. At the first instance, the forest produce was seized by Chet Ram, Forest Guard, however, he died and DW3 and DW4 had thereafter taken possession of the said produce, which was lateron taken by proforma respondents No. 2 and 3/defendants No. 4 and 5 on 15.09.1988.
23. DW1 Satish Chander had been the Office Manager of proforma respondent No.3/defendant No.5 and produced record relating to the sale of timber. DW2 Surinder Kumar had been working as Divisional Manager of proforma respondent ::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 21 No.2/defendant No.4 at Parwanoo w.e.f. 31.10.1986 to 30.09.1989 and sated that the timber of the plaintiff had been received by the .
Corporation and had been put to auction. He claimed that vide publicity had been given to the proposed auction and notice thereof were also got published in three newspapers in September, 1988. The plaintiff had also been sent telegraphic notice. The timber of the plaintiff which got decayed was of B and
24.
r to C class. He further claimed to have sold the entire timber of Rs.5,99,313/ and deposited the sale proceeds with this Court.
DW5 Charan Dass was also the official of proforma respondent No.2/defendant No.4 and tendered in evidence newspapers clipping Ex.DW5/A, Ex.DW5/B and Ex.DW5/C. He further stated that the public had been duly informed of the proposed sale and even the plaintiff had been sent telegraphic notice vide Ex.DW5/E.
25. From the aforesaid evidence, it is proved on record that the plaintiff had felled 37 Deodar trees and 162 Kail trees of different classes from the land of Smt. Belmu and others in revenue estate Kalna had been converted out of 199 Deodar and Kail trees and forest produce had been stacked by the plaintiff at the road head for disposal in timber market. It is on 23.06.1982 that Chet Ram, Forest Guard incharge of Kalna area alongwith ::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 22 Sh. Chatter Dass had noticed the forest produce, which led to the prosecution of the plaintiff under Sections 3, 4 and 16 of the Act.
.
26. Admittedly,the plaintiff/respondent No.1 was acquitted in the aforesaid proceedings. However, in the meanwhile, the converted timber was left to the vagaries of weather and when it was eventually sold, obviously many of the scants by that time decayed or otherwise got damaged, resultantly the same could only fetch Rs.1,08,789/, even though, the market value of the said timber was much more. However, it would be noticed that no specific evidence was led by the plaintiff to prove the actual loss and, therefore, the learned trial Court rightly held the plaintiff to be entitled to the damage of Rs.50,000/ on account of negligence and nondisposal of the forest produce with promptitude. No exception to the said findings can be taken by the appellants or else it would amount giving a premium to their own inaction and lethargy. At the first place, the respondent No.1/plaintiff was unnecessarily harassed and made to face a criminal case and lateron even the property belonging to him had been sold under the orders of the Court, but even then the same had not been sold with required promptitude and resultantly, it could not fetch the price which it ought to.
27. Apart from the above, the defence put up by the defendants with respect to the plaintiff having unauthorisedly and ::: Downloaded on - 06/07/2018 22:59:35 :::HCHP 23 illegally felled the trees in question, was in fact not available to them in view of the orders passed by the learned Sessions Judge .
as affirmed upto the Hon'ble Supreme Court.
28. In view of the aforesaid discussion, there is no perversity in the judgment and decree passed by the learned trial Court. Accordingly, I find no merit in this appeal and the same is dismissed, leaving the parties to bear their own costs.
3rd July, 2018.
*GR*
r to (Tarlok Singh Chauhan),
Judge
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