Himachal Pradesh High Court
Shri Sangia Lal Negi vs State Of H.P. And Another on 11 May, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 411 of 2005 .
Date of decision: 11.5.2016 Shri Sangia Lal Negi. ...Appellant/Plaintiff Versus State of H.P. and Another. ...Respondents/Defendants of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1. Yes.
rt For the Appellant: Ms.Bhawana Dutta, Advocate.
For the Respondents: Ms.Meenakshi Sharma, Additional Advocate General.
Tarlok Singh Chauhan J. (oral).
The plaintiff/appellant (herein after referred to as plaintiff), has preferred the instant Regular Second Appeal under Section 100 of the Code of Civil Procedure against the findings recorded by learned first Appellate Court in Civil Appeal No. 70 of 2004, whereby appeal preferred by respondents/defendants (herein after referred to as the defendants) was allowed and the judgment and decree passed by learned trial Court was reversed.
2. Briefly stated the case of the plaintiff was that Nichar Tehsil of Kinnaur District and some other areas were lashed by heavy rains sometimes in the middle of July, 2000. There were flash floods. Bridge on Sholding nullah on NH-22 had been washed away. Supply of essential commodities to Kinnaur district had to be suspended. In such circumstances, on 25.7.2000, a meeting was Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 2 convened by the SDO (Civil), Nichar at Bhabanagar and in the said meeting plaintiff was asked to install a cable span (rope way) over .
Sholding nullah for carriage of essential commodities. It was settled that the plaintiff shall be paid `1,00,000/- per month for running the cable span. The plaintiff was not to charge tariff from the public for carriage of goods. Plaintiff accepted the proposal of SDO (Civil), of Nichar and installed the cable span on Sholding Nullah on 28.7.2000. The plaintiff provided the services of the cable span to rt the public at large from 28.7.2000 to 17.9.2000 and dismantled the cable span on 17.9.2000, pursuant to the orders dated 14.9.2000 of SDO (Civil), Nichar. Plaintiff was paid `1,00,000/- by SDO (Civil), Nichar for one month. The plaintiff had provided services of cable span to the public at large at the instance of SDO (Civil), Nichar for 52 days from 28.7.2000 to 17.9.2000, as such plaintiff requested the defendants to release balance payment of `66,680/-, which the defendants failed to pay. The plaintiff thereafter on 1.7.2003 instituted suit for recovery of `66,680/- plus interest amounting to `22,292.40 at the rate of 12% per annum, totaling to `88,972.40. It is averred that plaintiff has borrowed funds for running cable span w.e.f. 28.7.2000 to 17.9.2000 and had paid interest on the funds so borrowed, as such is entitled to interest, as also the future interest.
3. Defendants resisted the suit by filing written statement, wherein preliminary objections qua maintainability, want of cause of action, locus standi and valuation had been taken. On merits, defendants admitted convening of meeting under the Chairmanship of SDO (Civil) Nichar on 25.7.2000. It was averred that terms and ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 3 conditions of installation of cable span for carriage of goods had been negotiated with the plaintiff. It was decided that the plaintiff .
shall be paid `1,00,000/- per month for running the cable span. The plaintiff was not to charge tariff from the public for carriage of goods through the cable span. It had been stated that the Public Works Department of the State had undertaken repair work of the highway of in the area of Sholding and the bridge on Sholding nullah had been constructed on 31.7.2000. After 31.7.2000, the traffic through the rt bridge constructed on Sholding nullah had been through and cable span of the plaintiff had not been in use after 31.7.2000. The plaintiff had provided services of his cable span to the public at large for three days w.e.f. 29.7.2000 to 31.7.2000 and the plaintiff had been paid a sum of `1,00,000/- for providing services of his cable for three days only. As such, the claim of the plaintiff for payment of remaining 22 days was not justified. Due to unfavorable weather condition on 31.7.2000 the plaintiff had not been asked to dismantle the cable span. It was averred that the plaintiff was not entitled to the amount of `66,680/- or interest thereon.
4. Replication reiterating the contents of plaint was filed.
On 23.3.2004, the learned trial Court framed the following issues:-
"1. Whether the plaintiff is entitled to the suit amount along with future interest from the defendants, as alleged?
OPP
2. Whether the suit is not maintainable in the present form, as alleged? OPD
3. Whether the plaintiff has no locus-standi to file the present suit, as alleged? OPD
4. Whether the plaintiff has no cause of action? OPD ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 4
5. Whether the suit of the plaintiff is not properly valued for the purposes of court fee and jurisdiction, as alleged? OPD
6. Relief."
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5. After recording the evidence and evaluating the same, the learned trial Court decreed the suit of the plaintiff, constraining the defendants to file an appeal before the learned first Appellate of Court, which vide judgment and decree dated 4.5.2005 came to be allowed. Feeling aggrieved by the judgment and decree passed by rt learned first Appellate Court, the plaintiff has filed the instant appeal.
This Court vide order dated 11.8.2005 admitted the appeal on the following substantial questions of law:-
"1. Whether the ld. 1st appellate Court has correctly applied the provisions of Article 299 of the Constitution of India in the facts and circumstances of the matter and has thus arrived at a wrong conclusion not warranted in the eyes of law?
2. Whether the Ld. Court below has failed to correctly appreciate the provisions of Section 65 & 70 of the Contract Act and has thus arrived at a wrong conclusion?
3. Whether the learned courts below have mis-read and mis interpreted documents exhibit PW-2/A and PW-2/B and thus arrived at a conclusion not warranted in the eyes of law?"
I have heard learned counsel for the parties and have also gone through the records of the case.
Substantial Question No. 1.
6. A perusal of the judgment passed by the learned Lower Appellate Court would reveal that the suit of the plaintiff has been primarily dismissed by invoking Article 299 of the Constitution of India and that apart, the findings returned by the learned trial Court on Issue No. 1 have also been reversed.
::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 57. The question whether a contract complies with Article 299 of the Constitution or not is a mixed question of law and fact .
(refer Bishandayal and sons Vs. State of Orissa and others (2001) 1 SCC 555).
8. It would be noticed that non compliance of Article 299 was never the case set up by the defendants in the written of statement and having not raised the same, they would be deemed to have waived of and as such the defendants could not be rt permitted to raise such a contention in the first Appellate Court.
9. Indisputably, in case a plea has not been taken in the written statement and had not otherwise been urged before the trial Court, it was not open for the respondents to take up the plea of non compliance of Article 299 before the first appellate Court.
10. In Kalyanpur Lime Works Ltd. Vs. State of Bihar, AIR 1954 SC 165, a question arose as to whether the contract conformed with the provisions of Section 30 of the Government of India Act, 1915 and such a plea had not been raised in the pleadings and was raised for the first time before the High Court, the Hon'ble Supreme Court held that such a question could not be allowed to be raised at the time of arguments, as it was a mixed question of law and fact and no opportunity to adduce evidence was given to the other side.
11. At this stage, I may also refer Union of India Vs. Surjit Singh Atwal, (1979) 1 SCC 520. In this case, there was a concluded contract for the construction of a hard runway, taxi tracks and dispersal roads. The work under the contract had been ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 6 completed and the dispute between the parties was whether the contractor was entitled to special rates in respect of certain stones, .
which were not available at the site. It was claimed that at a meeting it had been agreed that the plaintiff (therein) would be entitled to extra price. The plea regarding illegality of the contract had not been raised in the written statement. In the written of statement there was total denial regarding the agreement to make payment of special price. Thereafter an application for amendment rt of the written statement was made to plead that there was failure to comply with the provisions of Section 175(3) of the Government of India Act, 1935. That application was dismissed but it was observed that the plea could be raised even without an amendment. The suit then went to trial. The trial court dismissed the suit on the ground that there was a new agreement in November 1947 and that this agreement did not comply with the requirements of Section 175(3) of the Government of India Act, 1935. In appeal the Division Bench held that there was no new agreement. The appellate court held that the trial court was wrong in entertaining a plea which had not been taken in the written statement. The appeal was accordingly allowed. The Hon'ble Supreme Court dismissed the appeal on the ground that such a plea not having been taken in the written statement could not be raised after several years after the institution of the suit as it would greatly prejudice the plaintiff. The Hon'ble Supreme Court held, if such a plea had been taken at an earlier stage, the plaintiff could have come out with a certain alternate case or raised certain other pleas, which right he had now lost. The ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 7 Hon'ble Supreme Court also held that such a plea was a mixed plea of fact and law.
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12. In Bhagat Singh and Others Vs. Jaswant Singh, AIR 1966 SC 1861 and Abubakar Abdul Inamdar (dead) by L.Rs and others Vs. Hanoi Abdul Inamdar and others, AIR 1996 SC 112, the Hon'ble Supreme Court held that where the claim is not made in of the defence presented, no amount of evidence can be looked into upon a plea which was never put forward.
13. rt In Siddu Venkappa Devadiga Vs. Rangu S. Devadiga and others, (1977) 3 SCC 532, the Hon'ble Supreme Court held that the decision of a case cannot be based on grounds outside the plea of the parties and that it is the case pleaded which has to be found; and the High Court cannot in an appeal permit the appellant to make out a new case, which was not pleaded and which was not the subject-matter of the trial.
14. In view of the aforesaid exposition of law, I am of the considered opinion that the defendants could not have been permitted to raise the plea of non compliance of Article 299, that too for the first time in the first appeal and they clearly were precluded from raising the same, having waived such defence. Moreover, raising of such plea has caused severe prejudice to the plaintiff, as the defendants had not raised the plea of illegality of the agreement in the written statement and moreover no issue qua the same had been framed, thereby taking the plaintiff by surprise.
15. Even otherwise, before arriving at a finding regarding the so called non compliance of Article 299, it was incumbent upon the ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 8 learned first appellate Court to ensure that the plaintiff is not taken by a surprise and this finding could only have been rendered after .
putting the plaintiff to notice and affording him an opportunity to lead evidence. But now it is too late in the day, as the suit was instituted as far back as 1.7.2003 and moreover, the amount involved is far too meager, so as to undertake such exercise.
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16. Adverting to the findings with respect to issue No. 1, it would be noticed that the same have been illegally reversed by the rt learned first Appellate Court.
17. Ex. PW-1/A is the minutes of meeting held on 25.7.2000, whereby the committee constituted by the Deputy Commissioner, Kinnaur on the basis of negotiations carried out by them with the plaintiff had decided to allot the work of installation of cable span to the plaintiff, for which the plaintiff was required to be paid Rs.1,00,000/- per month.
18. It is not in dispute that it was only on 14.9.2000 that the plaintiff was directed to remove the span, as it had served its purpose. It cannot be disputed that the departments of Government only function through written orders, therefore, I wonder why the learned Appellate Court proceeded to discuss the oral evidence, which too has been misconstrued by it to arrive at the following finding "that since state had constructed bridge on Sholding nullah on 31.7.2000 and traffic stood routed through the bridge, the passengers were not to unload their luggage from their vehicles on the left bank of Sholding nullah and carry their goods through the ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 9 cable span of the plaintiff for 50 meters or so and reload their luggage in their vehicles after covering about 100-200 meters."
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19. The perversity in such findings is apparent as the learned lower Appellate Court has not even cared to go through the case set up by the defendants themselves. In para 5 of the plaint a specific averment had been made to the effect that the cable span of of the plaintiff had remained installed and operational at Sholding nullah under the decision/agreement till 17.9.2000, when the plaintiff rt received a letter/order dated 14.9.2000 issued by defendant No. 3, ordering to lift the cable span from the spot. It is apt to reproduce para 5 of the plaint, which reads thus:-
"5. That the defendants had released Rs.1,00,000/- (Rupees one lac only), the amount worth of Rs.1,00,000/- was duly received by Cheque by the plaintiff. The amount was only payment for the one month. Whereas the cable span of the plaintiff remained installed and operational at Sholding Nala under the decision/agreement till 17.9.2000. As plaintiff received a letter/order dated 14.9.2000 issued by the defendant No. 3 ordering to lift the cable span from the spot. The order/letter above dated was received by the plaintiff on 17.09.2000."
20. Defendants in reply to this paragraph had clearly admitted that due to unfavorable weather the span was detained for further period to avoid any inconvenience on the later stage. It is apt to reproduce para 5 of the written statement, which reads thus:-
"5. That the contents of para 5 of plaint are admitted to the extent that rupees one lack was disbursed to contractor for one months payment of the span. As submitted the span was in operation for only three days, the plaintiff had already been paid much amount i.e. for full month, hence he is not entitled for payment of amount as alleged by him. Due to ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP 10 unfavorable weather the span was detailed for further period to avoid any inconvenience on the later stage. As the entire bridges over the Satluj river in Nichar Block were washed .
away in flood. Keeping in view of the smooth supply of essential commodities in Kinnaur District, it was necessary to detain the span to face out with the natural calamities during this unfavorable/rainy season."
21. Once the defendants themselves had admitted the span of to be in position till 17.9.2000, the fact that whether it was actually used by the people or not pales into insignificance, because in so far rt as the plaintiff is concerned, he has not denied the facility of span and performed his part of the contract and the opening of the road or bridge, therefore, in such circumstances was of no consequence.
Having said so, substantial question of law is answered in favour of the appellant.
22. In view of the decision on question No. 1, the other two substantial questions need not to be gone into.
In view of the aforesaid discussion, I find merit in this appeal and the same is accordingly allowed and the judgment and decree passed by the learned lower Appellate Court is set aside and as a result thereof the judgment and decree as passed by the learned trial Court is affirmed, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
11th May, 2016 (KRS) ::: Downloaded on - 15/04/2017 20:20:00 :::HCHP