Punjab-Haryana High Court
Balwinder And Another vs Smt. Usha Rani And Others on 11 February, 2014
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
RSA No.2776 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.2776 of 2013 (O&M)
Date of decision: 10.02.2014
Balwinder and another
....Appellants
Versus
Smt. Usha Rani and others
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. Sushil Jain, Advocate, for the appellants.
PARAMJEET SINGH, J.
CM No.7384-C of 2013 For the reasons stated in the application, CM is allowed. Delay of 18 days in filing the appeal is condoned.
RSA No.2776 of 2013 (O&M)
This regular second appeal is directed against the judgment and decree dated 20.02.2010 passed by learned Additional Civil Judge (Senior Division), Kaithal, whereby the suit for recovery of `5.00 lacs filed by respondents No.1 and 2/plaintiffs was decreed and defendant No.1 was directed to pay compensation to the tune of `2,35,400/- within a period of two months with interest at the rate of 6% per annum from the date of filing the suit till realization as well as against the judgment Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -2- RSA No.2776 of 2013 and decree dated 26.03.2013 passed by learned Additional District Judge, Kaithal, whereby the appeal preferred by defendant No.1 (father of the appellants) has been dismissed.
The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for recovery on the ground that plaintiffs are minors and are living under the care and custody of their maternal uncle Sh. Chandan Ram, who has no adverse interest against them. It is alleged that defendant No.1 is an agriculturist and used to draw electric energy by illegal and unauthorized means by directly connecting electric wires with the main line. Jai Kishan deceased father of the plaintiffs objected to the said illegal acts of defendant No.1 on many occasions as the fields of defendant No.1 were adjacent to the fields of Jai Kishan. On 10.10.1997 Jai Kishan was irrigating the fields with his tubewell. At about 9.00/9.30 a.m. defendants No.1 and 2 started fixing wires on the main line to draw electricity for electric motor of defendant No.1. Then Jai Kishan raised objection that his electric motor would be affected by that illegal connection. On this, defendants No.1 and 2 became furious and attacked Jai Kishan with kulhari and kirpan. Due to the said attack by defendants No.1 and 2, Jai Kishan breathed his last at that very time. Defendants No.1 and 2 thereafter carried away the dead body of Jai Kishan and threw away the same into the well of tubewell of Jai Kishan. Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -3- RSA No.2776 of 2013 FIR No.505 dated 10.10.1997 under Sections 302 and 201 read with Section 34 of the Indian Penal Code was registered against defendants No.1 and 2 at police station Pundri. The trial Court held defendant No.1 guilty and he was awarded life imprisonment. Defendant No.2 was discharged of the charges levelled against him but he was also equally responsible for the death/murder of Jai Kishan. Plaintiffs were dependent upon deceased Jai Kishan, who was the only person to earn livelihood for their childhood. It was alleged that earning of the deceased was `60,000/- per annum at the rate of `5,000/- per month. In addition to the pecuniary loss caused to the plaintiffs by defendants No.1 and 2, plaintiffs have also suffered pain and suffering on account of untimely and unnatural death of their father. Besides this, compensation was also sought on account of wrongful act committed by defendants No.1 and 2 which resulted in the death of Jai Kishan. Plaintiffs moved an application to file the suit as indigent person, which was allowed subject to payment of court fee etc. at the end of trial.
Upon notice defendants appeared and filed their separate written statements. Defendant No.1 filed written statement taking preliminary objections that suit of the plaintiffs is not maintainable, plaintiffs have no locus standi to file the present suit, suit is bad for mis- joinder of parties, suit is barred by limitation, plaintiffs are estopped from filing the suit by their own act and conduct and the suit of the plaintiffs is based upon false and frivolous allegations to the knowledge Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -4- RSA No.2776 of 2013 of the plaintiffs. On merits it is alleged that defendant No.1 never drew electric energy by illegal and unauthorized means. Defendant No.1 has his own tubewell which was being run by diesel engine. Defendant No.1 had no electric motor at that time, therefore, there was no question of raising any objection by Jai Kishan as alleged. Defendant No.2 has his fields more than one kilometer away from the fields of defendant No.1 and Jai Kishan. Defendants No.1 and 2 never attacked Jai Kishan.
Defendant No.2 filed his separate written statement taking preliminary objections that suit of the plaintiffs is not maintainable in the present form as he was discharged/acquitted of the charges. Plaintiffs have no locus standi to file the present suit, Court of first instance has no jurisdiction to try the present suit, suit of the plaintiffs is not properly verified for the purposes of court fee and jurisdiction and the suit is time barred. On merits it was averred that he has no concern with the alleged occurrence. He has already been discharged/acquitted of the charge. He has been falsely implicated in the case.
Court of first instance, on the basis of pleadings of the parties, framed following issues: -
"1. Whether the petitioners being LRs of deceased who was murdered by the defendant Nos.1 and 2 qua which FIR no.505 dated 10.10.1997 was registered are entitled to recover Rs.5 lacs on account of loss of income, dependency, pain and suffering as alleged? OPP
2. Whether the petitioner has no cause of action to file Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -5- RSA No.2776 of 2013 the present petition? OPR
3. Whether petition is not maintainable? OPR
4. Whether the petitioners are estopped by filing the present petition? OPR
5. Whether the petition is bad for non-joinder and mis-
joinder of necessary parties? OPR
6. Relief."
Parties led their respective evidence. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiffs. Against the judgment and decree of the Court of first instance, appeal preferred by the defendant No.1 has been dismissed by lower appellate Court and the judgment and decree of the Court of first instance has been affirmed. Hence, this regular second appeal.
I have heard learned counsel for the appellants and perused the record.
Learned counsel for the appellants contended that substantial questions of law have been framed in para No.11 of the grounds of appeal, which read as under: -
"1. Whether the suit of the plaintiff is barred by limitation as the date of death of deceased is 10.10.1997 and the suit has been filed on 07.05.2001?
2. Whether the declaration of the plaintiff as pauper is illegal and contrary to the report dated 17.04.2002 submitted by the Tehsildar?
3. Whether the documents not proved can be admissible in evidence?
Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -6- RSA No.2776 of 2013
4. Whether the misreading and mis-appreciation of evidence, at the time of deciding the appeal is a substantial question of law to be agitated in the appeal?"
Learned counsel for the appellants mainly argued on two points; (i) whether the judgments of the Courts below are based on the judgment of the criminal Court and (ii) whether the suit filed by the plaintiffs is within limitation.
Learned counsel for the appellants contended that alleged murder took place on 10.10.1997 and the instant suit was filed on 07.05.2001; as such the suit is barred by limitation. Suit can be filed within two years from the date of death of the deceased. Secondly, date of birth of plaintiff No.1 is stated to be 15.01.1988 and to prove the same, affidavit of plaintiff No.1 has been placed on record as Ex.P10 and her school leaving certificate as Ex.P11. Date of birth of plaintiff No.2 is 05.10.1983 and his birth certificate is Ex.P8. As such the suit is time barred. Issue of minority of one of the plaintiffs is of no help to the plaintiffs. Learned counsel for the appellants further contended that the Court of first instance has wrongly considered the judgment of conviction against the defendant for awarding compensation and it cannot be sole basis for awarding compensation in civil suit. The judgment does not prove the guilt or innocence of defendant No.1. It is further contended that no evidence has been led to prove that alleged murder of Jai Kishan has been committed by father of the appellants, Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -7- RSA No.2776 of 2013 who was defendant in the suit. But the suit has been decreed and, therefore, defendant filed an appeal before the lower appellate Court.
However, he died during the pendency of the appeal so present appeal has been filed by legal heirs of defendant No.1.
I have considered the contentions raised by learned counsel for the appellants.
Firstly, I will deal with the issue of limitation. So far as the limitation is concerned, admittedly the dates of birth of the plaintiffs has been accepted by both the Courts below by appreciating evidence on record. At the time of filing the suit i.e. on 07.05.2001 plaintiffs were less than 18 years of age. The Court of first instance has recorded a finding that at the time of filing the suit, plaintiff No.2 was 17 years and
5 months of age and certainly plaintiff No.1 born about five years thereafter and her age was round about 12 years. As per Section 6 of the Limitation Act, plaintiffs could have filed the suit within two years of attaining majority. The present suit was filed by the plaintiffs prior to attaining the age of majority through their next friend i.e. maternal uncle Chandan Ram. As such I do not finding any illegality or perversity in the findings recorded by Courts below holding that suit has been filed within limitation.
Now the question arises whether the Courts below have wrongly decreed the suit merely on the basis of judgment of the criminal Court wherein father of the appellants was convicted and is this the sole Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -8- RSA No.2776 of 2013 basis for awarding compensation because death of Jai Kishan was not independently proved in civil suit.
Perusal of record, specifically para Nos.26 and 27 of the judgment of the lower appellate Court, clearly indicates that independent evidence has been led before the civil Court to prove the factum with regard to the death of Jai Kishan. One Kishna Ram, who was eyewitness to the murder of Jai Kishan, appeared in criminal Court as PW8 but during the pendency of the present suit he died. His death certificate was placed on record as Ex.P7 and copy of the statement of Kishna Ram recorded in criminal trial has also been placed on record along with cross-examination as Ex.P1. Such statement is admissible in evidence under Section 33 of the Indian Evidence Act. Evidence given by witness in a judicial proceeding is relevant for the purpose of proving a particular fact at later stage in judicial proceeding when the witness is dead. Besides this, death of Jai Kishan has been proved from the statement of PW2 Ram Piari, an eyewitness, and her statement is fully corroborated by the record of criminal Court. Once the independent evidence has been led, judgment of the criminal Court is relevant under Section 43 of the Evidence Act. There is no dispute regarding the position of law that without leading independent evidence in civil suit, it cannot be held as to who was the murderer of the father of the plaintiffs merely on the basis of judgment of conviction.
Hon'ble Supreme Court in Anil Bihari Ghosh v. Smt. Latika Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -9- RSA No.2776 of 2013 Bala Dassi, AIR 1955 SC 566 has held as under: -
"The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence."
Reference can also be made to the judgment of Division Bench of this Court in Municipal Committee, Jullunder v. Shri Romesh Saggi and others, AIR 1970 (P&H) 137.
In the present case, it is proved on record that before the civil Court independent evidence has been led, including the evidence of the eyewitnesses as is clear from the perusal of the judgment of the Courts below. The Courts below have not decreed the suit merely on the basis of judgment of conviction in criminal case.
In view of this, I do not find any illegality or perversity in the Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh -10- RSA No.2776 of 2013 impugned judgments and decrees.
Learned counsel for the appellant has failed to show that the findings recorded by Courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record.
No question of law, muchless substantial question of law arises in this appeal.
Dismissed.
(Paramjeet Singh) Judge February 10, 2014 R.S. Singh Ravinder 2014.03.11 12:44 I attest to the accuracy and integrity of this document Chandigarh