Karnataka High Court
City Municipal Council vs C. Ramu on 13 July, 1988
Equivalent citations: ILR1989KAR2138
JUDGMENT K.A. Swami, J.
1. R.F.A.171 of 1976 and R.F.A.94 of 1983 arise out of O.S.No. 67 of 1972. R.F.A.94 of 1985 arises out of O.S.No. 125 of 1972. O.S.67 of 1972 was filed by the appellant in R.F.A.94 of 1983, and R.F.A.171 of 1976 and R.F.A.94 of 1985 are filed by the City Municipal Council, Mysore, which is the defendant in O.S.67 of 1972 and plaintiff in O.S.125 of 1972. The defendant in O.S.125 of 1972 is the plaintiff in O.S.67 of 1972.
2. R.F.A.94 of 1985, having regard to the value of the claim, was filed before the District Court, Mysore as R.A.4 of 1976 and subsequently by the order dated 14-2-1985 the appeal has been withdrawn from the file of the District Court, Mysore and It is heard along with other two appeals, because both the suits were tried together and a common evidence was recorded and a common Judgment was delivered by the trial-Court.
3. R.F.A.171 of 1976 is filed by the defendant in O.S.67 of 1972 and R.F.A.94 of 1983 is filed by the plaintiff in O.S.67 of 1972. R.F.A.94 of 1985 is by the plaintiff in O.S.172 of 1972.
In this Judgment the parties will be referred to as plaintiff and defendant.
4. In O.S.No. 67 of 1972 the plaintiff prayed for the following reliefs:
(a) Rs. 51,350/- in respect of loss estimated as arising out of non-yielding of 400 coconut trees for a period of 4 years;
(b) Rs. 42,000/- loss of 70,000 coconut fruits removed by the defendant prior to the date of agreement dated 1-2-1971 at the rate of Rs. 600/- per thousand;
(c) Rs. 36,000/- loss of crop as a result of non-supply of water.
5. The trial-Court, on the basis of the evidence on record has decreed the suit for a sum of Rs. 41,302-50/- with future interest at per annum from the date of suit till realisation.
6. Being aggrieved by the Judgment and decree of the trial-Court in so far as it has dismissed the suit of the plaintiff in respect of the remaining claim, the plaintiff has preferred R.F.A.94 of 1983; whereas, the defendant has preferred R.F.A.171 of 1976 against the aforesaid Judgment and decree passed against it.
7.1. O.S.125 of 1972 was filed by the City Municipal Council, Mysore - the defendant in O.S.67 of 1972, for recovery of a sum of Rs. 14,840/- with costs and future interest from the plaintiff in O.S.67 of 1972, who was the defendant in the suit for plucking tender coconuts between the period from 5-2-1972 to 21-5-1972 in violation of the terms of the contract.
7.2. The trial-Court has held that the plaintiff-City Municipal Council, Mysore, has failed to establish the loss claimed in the plaint and it has accordingly dismissed the suit with costs.
7.3. Being aggrieved by the aforesaid Judgment and decree, the plaintiff preferred R.A.4 of 1976, before the District Court Mysore, which as already pointed out, has been withdrawn by this Court and has been numbered as R.F.A.94 of 1985.
8. There is a Municipal Farm at Mysore which belongs to the City Municipal Council, Mysore. Prior to 13-12-1970 the Municipal Council itself was collecting the coconut fruits and selling them in the open market, However, it decided to give the right of plucking coconuts from 2948 numbered coconut trees in the Municipal Farm to the highest tenderer. Accordingly, it issued a tender Notification on 19-11-1970 calling for tenders for removing the coconut crops from the 2948 numbered coconut trees for a period of 4 years. The plaintiff-C, Ramu was the highest tenderer. He offered the tender for a sum of Rs. 3,78,750/-, payable in four Instalments viz., Rs. 90,500/- for the first year; Rs. 92,600/- for the second year; Rs. 95,550/- for the third year and Rs. 1,00,100/- for the fourth year. The yearly instalments were required to be paid en or before the 31st January of each year.
9. In view of the fact that he submitted the highest tender his tender was accepted. The right to pluck the coconut crop was to commence from 1-2-1971. The notification calling for tenders is produced as Exhibit P-1. The contract entered into between the plaintiff and the defendant Municipal Council pursuant to the acceptance of the tender dated 1-2-1971 is produced at Exhibit P-2.
10.1. The case of the plaintiff is that the defendant Municipal Council did not keep up the terms of the contract; that it was not entitled to pluck the coconuts from 19-11-1970 - the date on which the notification calling for tenders was issued; that nevertheless, It removed the coconuts from the 2948 numbered coconut trees from 19-11-1970 to 31-1-1971 and thereby it caused a loss of Rs. 42,000/-.
10.2. The further case of the plaintiff is that the defendant-Municipal Council did not properly look after the 2948 numbered coconut trees and it did not supply the water to all the trees and the water was not made available for over 500 to 600 trees and that as a result thereof there was no proper yielding of the fruits from the coconut trees; that consequently it resulted in poor yielding and caused loss to the plaintiff. Under this head, the plaintiff claimed a sum of Rs. 36,000/- for the loss of crop during the season of Shivarathrl, Gouri and Deepavall during the first year of the contract. The plaintiff also further claimed that there were 400 coconut trees which were not yielding. Hence, altogether the plaintiff estimated the loss prorata on the basis of the tender for the period of four years at Rs. 51,350/-. In addition to this, it was also averred by the plaintiff that due to negligence of the defendant there was a vast growth of Lantana, which affected the yield of the coconut trees; and that in addition to it, the defendant also raised inter-crops such as, Jawar, Banana and it affected the fertility and as a consequence thereof there was no proper adequate supply of nutrient to the trees, which also contributed for reduction in the yield. In addition to this, the plaintiff also claimed that there was a breach in the water channel which was also not restored; that also affected the supply of water to the trees. Consequently, on the whole, the plaintiff was put to the loss of Rs. 1,29,350/-.
11. The suit was filed on 6-7-1972 during the second year of contract. In addition to this, the plaintiff also claimed that he had addressed several letters bringing to the notice of the defendant the Improper maintenance of the Farm and negligence etc. and several trees not yielding. Nevertheless, no steps were taken by the defendant.
12. Defendant denied the suit claim of the plaintiff. It contended that the Municipal Farm was being maintained during the period of the contract in the same manner in which it was maintained prior to that; that the plaintiff was not entitled to plucking coconuts during the period from 19-11-1970 to 31-1-1971; that his right to pluck coconuts commenced only from 1-2-1971; that neither the notification calling for tenders nor the contract Exhibits P-2 enabled the plaintiff to pluck the coconuts from the 2948 numbered coconut trees from 19-11-1970; that the defendant was entitled to raise inter-crop, as it was being done prior to granting of the contract; that such raising of the inter-crop did not in any way affect the yield of the coconut fruits from the coconut trees; that such raising of the inter-crop was for a short period; that the Lantana was not allowed to grow and sufficient number of labourers and the staff were maintained by the defendant and a proper care was taken. It was also contended that the plaintiff was not entitled to claim damages nor maintain the suit for damages. It was also contended that the suit was barred by Order 2 Rule 2 of the Code of Civil Procedure.
13. On the basis of the pleadings of the parties, the trial-Court raised as many as 12 issues and also one additional issue.
14. In the meanwhile, on 30th October, 1972, the defendant-Municipal Council also filed another suit O.S.No. 125 of 1972 in the very Court for recovery of a sum of Rs. 14,840/- being the value of the damage caused to the coconut trees by the defendant-C. Ramu by plucking the tender coconuts from the 2948 numbered coconut trees contrary to the terms of the contract.
The defendant-C. Ramu denied the claim of the plaintiff. As the suit O.S.125 of 1972 related to the very same trees standing in the Municipal Farm in respect of which the defendant-C. Ramu was granted the right to pluck the coconuts for a period of 4 years, the trial-Court very rightly tried both the suits together. In this suit the trial-Court raised 3 issues.
15. As already pointed out on the basis of the evidence on record the suit filed by the Municipal Council has been dismissed and the one filed by Sri. C. Ramu has been partly decreed.
16. The Issues and one additional issue framed in O.S.No. 67 of 1972 are as follows:
Issues:
(1) Whether the defendant plucked and removed 70,000 coconuts from the trees after the date of tender notification and before the agreement dated 1-2-71 came into existence and whether the plaintiff is legally entitled to recover the value of those coconuts by the defendant?
(2) Whether the defendant did not regularly supply water to 500 to 600 coconut trees as alleged in the plaint?
(3) Whether the drain at one of the points had breached and consequently there was no supply of water at all to one of the plots?
(4) Whether there was heavy growth of lantana in one plot consisting 600 to 800 trees and the said growth of lantana affected the yield of the coconut trees existing in that plot?
(5) Whether the yield of the coconut trees was affected due to the growing of Jowar, grass etc, by the defendant?
(6) Whether the plaintiff proves that the acts of omissions and commissions attributed to the defendant are acts done by the defendant in violation of the terms of the contract?
(7) Whether the plaintiff has sustained any loss owing to the acts of commission and omissions attributed to the defendant. If so what is the loss sustained by the plaintiff.
(8) Whether the plaintiff proves that he has sustained loss to the extent of Rs. 1,29,350/-as alleged in the plaint?
(9) Whether the plaintiff is estopped from filing any suit against the defendant as pleaded in para 5 of the written statement?
(10) Whether the suit is barred under Section 283 of the Mysore Municipalities Act, 1964?
(11) To what relief is the plaintiff entitled? Additional Issue:
(1) Whether the suit is barred under Order 2 Rules 2 and 3 as pleaded in para 8(a) of the written statement?
17. The trial-Court has held that the date after the tender notification was issued and before 1-2-1971 the Municipal Council had plucked and removed 6,940 coconuts from the 2948 numbered coconut trees which the plaintiff was entitled to pluck and remove and therefore the plaintiff was entitled to recover the value of the same. The trial-Court quantified the value of 6,940 coconuts at Rs. 4,164/- at the rate of Rs. 600/-per 1000 coconuts. On Issue No. 2 the trial-Court held that the plaintiff did not regularly supply water to 300 coconut trees and this caused lesser yield of 6,000 coconuts till the end of 1971 and accordingly it quantified the loss at Rs. 3,600/-. On issue No. 3 it held that though there was a breach in the drain, but there was no failure of supply of water to any of the plants, as alleged. On Issue Nos. 4 and 5 the trial-Court recorded a finding in the negative. On Issue Nos.6 and 7 the trial-Court held that the plaintiff was able to prove that there were 261 trees which were not yielding; that this caused loss to the plaintiff during the contract period of four years. The total loss caused under this head for the contract period of four years was estimated at Rs. 33,538-50/-. Issue No. 8 related to the total loss suffered by the plaintiff. Accordingly, as a result of the findings recorded on Issue Nos. 1 to 7, it was held that the total loss caused to the plaintiff was in a sum of Rs. 41,302-50/-. Issue Nos. 9 to 10 were answered in the negative and the additional Issue No. 1 was also answered in the negative. Consequently, the suit was decreed for a sum of Rs. 41,302-50/- with interest at 6% per annum from the date of the suit till the date of realisation.
18. In O.S.No. 125 of 1972, as pointed out, the following 3 issues were framed:-
(1) Whether the defendant has plucked tender coconuts worth Rs. 14,840/- as alleged in the plaint?
(2) Whether the defendant is liable to pay Rs. 14,840/- to the plaintiff as claimed in the plaint?
(3) To what reliefs is the plaintiff entitled?
19. On the basis of the evidence on record it was held by the trial-Court that the plaintiff (Municipal Council) failed to prove that the defendant-C. Ramu plucked tender coconuts from the 2948 numbered coconut trees worth Rs. 14,840/-. Accordingly, the suit was dis-missed.
20. Before we take up for consideration the contentions raised in R.F.A. 171 of 1976 and R.F.A. 93 of 1983, we think that R.F.A. 94 of 1985 can be disposed of.
21. The trial-Court in para 63 of its Judgment has considered issues 1 and 2 raised in O.S.No. 125 of 1972. According to the case of the plaintiff, the defen-dant-Ramu during the period from 5-2-1972 to 21-5-1972 plucked the tender coconuts from the 2948 numbered coconut trees. It is relevant to notice that as per paras 8 and 7 of the contract the defendant Ramu was not entitled to remove tender coconuts. He was entitled to pluck and remove only the ripe coconut fruits.
22. The evidence adduced in this regard by the plaintiff (Municipal Council) is that of D.W.1 and D.W.3. D.W.1 Puttaswamy was the Farm Manager since 9-9-1974. D.W.3 Sreekantaiah who also worked as a Farm Manager from 3-5-1971 to 18-5-1974.
23. Except asserting in their evidence that the defendant Ramu removed tender coconut fruits from the 2948 numbered coconut trees there is no other evidence adduced. D.Ws.1 and 3 have not stated that they actually saw Ramu or his servants while removing the tender coconuts. There is no other evidence adduced by the Municipal Council regarding the removal of tender coconuts from the 2948 numbered coconut trees during the period between 5-2-1972 to 21-5-1972. According to the case of the plaintiff and the assertion of D.Ws.1 and 3 about 32,000 tender coconuts were plucked or removed from the 2948 numbered coconut trees during the period 5-2-1972 to 21-5-1972. D.W.3 has stated in his evidence that in the older trees if bunches carrying tender coconuts are cut at the base, there will be considerable bleeding of sap which will cause injury to the plant. Therefore, tender coconuts are not plucked from the older trees. He has also further stated that another reason for not plucking tender coconuts is that, if tender coconuts are plucked at random from a branch, the bunch would lose support and the remaining coconuts will drop off, which would happen as a result of removing tender coconuts.
24. But the point for consideration is:
Whether the plaintiff-Municipal Council has proved that the defendant actually removed the tender coconuts worth Rs. 14,840/- during the period from 5-2-1972 to 21-5-1972?
25. The trial-Court, on considering the very little evidence that is available on record, on this point, has rightly held that the plaintiff-Municipal Council has not been able to prove that the defendant-Ramu contrary to the terms of the contract removed 32,000 tender coconuts during the period between 5-2-1972 to 21-5-1972. On reappreciation of the evidence on record, i.e., D.Ws.1 and 3 on the point, we do not see any reason to differ from the view taken by the trial-Court. There is no direct evidence of removing tender coconuts. There is also no evidence to the effect that the defendant-Ramu sold tender coconuts during that period Therefore, we are of the view that the findings recorded by the trial-Court on issues 1 and 2 are correct and the same do not call for interference.
26. We accordingly, hold and answer the point raised for determination in this appeal in the negative. Accordingly R.F.A. 94 of 1985 is liable to be dismissed with costs.
27. We now take up R.F.A. 171 of 1976 and R.F.A. 94 of 1983.
28. Having regard to the contentions urged on both sides, the following points arise for consideration:
1. Whether Exhibits P-1 and P-2 read together entitled the plaintiff-C. Ramu to pluck and remove ripe coconuts from 2948 numbered coconut trees during the period from 19-11-1970 to 31-1-1971?
OR Whether the defendant-Municipal Council was not entitled to pluck and remove the coconuts from 2948 numbered coconut trees during the period 19-11-1970 to 31-1-1971?
2. If first part of the point No. 1 is answered in the affirmative what is the amount realised by the defendant from the sale of coconuts?
3. Whether the plaintiff has proved that there were 400 non-yielding coconut trees among 2948 numbered trees in respect of which right to pluck ripe coconuts was given to the plaintiff under Exhibit P-2?
4. Whether the plaintiff has established that 500 to 600 out of 2948 numbered coconut trees were not regularly supplied with water?
5. Whether the plaintiff has established that the defendant allowed to grow Lantana in the area covered by 2948 numbered coconut trees and also raised inter-crop and whether the same affected the yield from the 2948 numbered coconut trees and consequently caused loss of income to the plaintiff?
6. Whether it is open to the defendant to contend contrary to the findings recorded in O.S.No. 83 of 1972 on the file of the Additional Munsiff, Mysore, between the parties in respect of the very contract in question and in which a decree for permanent injunction was passed restraining the defendant-Municipal Council or its agents or servants interfering with the peaceful possession of the plaintiff-Ramu and interfering with his right to pluck coconut crop from the Municipal Farm during the continuation of the contract dated 1-2-1971?
7. Whether Exhibit P-2 represented or evidenced a transaction of sale of goods or a licence under Section 52 of the Easements Act?
8. Having regard to the relief sought for in O.S.No. 83 of 1972 whether it is open to the plaintiff to claim the reliefs sought for in the suit in view of the provisions contained in Order 2 Rule 2 of the C.P.C.?
9. Whether the decree passed in O.S.No. 83 of 1972 by the Additional Munsiff, Mysore operates as res judicata.
Point Nos. 1, 2 and 7:
29. Point Nos. 1, 2 and 7 are inter-connected. Therefore, they are considered together.
The contention of the plaintiff that Exhibits P-1 and P-2 read together evidenced the transaction of sale of goods; whereas It is contended on behalf of the defendant-Municipal Council that they do not evidence the transaction of sale of goods but It is a licence given to the plaintiff to pluck and remove the ripe coconuts from 2948 numbered coconut trees grown in the Municipal Farm for a period from 1-2-1971 to 31-1-1975. As such, it is the case of the defendant that the right to pluck the ripe coconuts accrued to the plaintiff only from 1-2-1971 and not earlier.
30. Sri Gundu Rao, learned Counsel for the plaintiff, contended that the tender notification represented to the public that ripe coconuts in the 2948 numbered coconut trees grown in the Municipal Farm were put up for auction. Therefore, according to the learned Counsel it amounted to sale of the ripe coconuts that were existing on the trees on the date of the tender notification.
31. A reading of the tender notification Ext.P-1 and also of the contract Ext.P-2 that has been entered into by the defendant with the plaintiff does not persuade us to hold that what was put up for auction was the right to pluck ripe coconuts from 2948 numbered trees grown in the Municipal Farm for a period of 4 years from 1-2-1971 to 31-1-1975. The opening portion of the tender notification Itself specifically states thus:
32. Learned Counsel for the plaintiff has placed reliance on a Full Bench decision of the High Court of Allahabad in TULSA SINGH AND ORS. v. THE BOARD OF REVENUE, U.P .
In that decision the question as to whether the document related to sale of future goods (within the meaning of Sale of Goods Act) was left open to be considered.
However, a reference was made to a decision of the Supreme Court in SMT. SHANTA BAI v. STATE OF BOMBAY AND ORS . in which it was held that in a lease, one enjoys the property but has no right to take it away. In a profit a prendre one has a licence to enter on the land, not for the purpose of enjoying it, but for removing something from it, namely a part of the produce of the soil.
The Full Bench held that the aforesaid observations were applicable to the document before them. Thus, It is clear that in Tulsa Singh's case 1 whether the transaction amounted to a sale of goods or a lease was left open. However, the observations made were to the effect that such a transaction amounted to a licence. In this connection, learned Counsel Sri Gundu Rao, also placed reliance on the definition of the expression 'goods' as found in Sub-clause (7) of Section 2 of the Sale of Goods Act, 1930. According to the definition 'goods means every kind of moveable property other than actionable claims and money; and Includes stock and shares, growing crops, grass and things attached to or forming part of the land which are agreed to be severed before sale or under the contract of sale.
33.1. It is contended that coconut is a crop grown from the coconut trees and the right that was given under the contract was to remove the growing crop. It was a moveabte property as It was removeable from the coconut trees. It was this crop which was sold under the contract-Ext.P-2. Hence, it amounted to sale of goods.
33.2. In this regard it is relevant to notice that what was sold was not the specific commodity. The recitals in the tender notification-Ext.P-1 and the agree-ment-Ext.P-2 made it clear that it was the right to co11ect the ripe coconuts from 2948 numbered coconut trees grown in the Municipal Farm for a period of 4 years that was sold to the plaintiff. That being so, such a transaction amounted to granting only the right or privilege to the plaintiff to remove the ripe coconuts from the 2948 numbered coconut trees during the period 1-2-1971 and 31-1-1975. Such a privilege squarely fell within the definition of 'license' as defined in Section 52 of the Indian Easements Act, 1882 which is as follows:
"Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful and such right does not amount to an easement or an interest in the property, the right is called a license."
In the transaction in question all the characteristics of a licence are present. What was granted to the plaintiff under Ext.P-2 in the immoveable property of the defendant namely, the Municipal Farm, a right to pluck and remove the ripe coconuts for a period of 4 years. He was not put in possession of the Municipal Farm. He was only given a right to enter the Municipal Farm for the purpose of plucking and removing the ripe coconuts. Further, what was effected under Ext.P-2 was not the sale of goods because no specific goods were mentioned or sold under Ext.P-2, but it was the right to pluck and remove the ripe coconuts from the 2948 numbered coconut trees that was granted. Therefore, it is not possible to hold that Ext.P-2 evidenced the transaction of sale of goods.
33.3. Learned Counsel for the plaintiff however placed reliance on a decision of the Supreme Court in SYED ISRAR MASOOD v. THE STATE OF MADHYA PRADESH . That was a case in which auction sale of certain forest goods was held. The plaintiff therein was the highest bidder of certain goods. By the time the plaintiff could be put in possession of the coupes which were put up for auction, major portion of the area was declared by the State Government as not amenable for removing the trees. Therefore, the plaintiff filed a suit for compensation from the State Government. It was held by the Supreme Court that the plaintiff having regard to the terms contained in the contract could not maintain the suit for compensation as it was open to him to repudiate the contract. However, it was held that the claim for refund of the amount proportionate to the reduction in the area was maintainable and accordingly the decree passed by the trial Court was modified in those terms. Thus, it is clear that the aforesaid decision is of no assistance to the plaintiff to support his contention that Ext.P-2 evidenced the transaction of sale of goods. Learned Counsel also placed reliance on a decision of the Supreme Court in BADRI PRASAD v. THE STATE OF MADHYA PRADESH AND ANR AIR 1970 SC 706. in that case the trees standing on the land were agreed to be severed before the sale. Therefore, it was held that the said transaction was a transaction of sale of goods. In the case on hand there was no question of sale after the coconut fruits were removed from the trees. What was granted under the contract was the right to pluck and remove the ripe coconut trees from the 2948 numbered trees. Therefore, we are of the view that the decision in Badri Prasad's case is not of any help to the plaintiff.
34. For the reasons stated above we hold that Ext.P-2 did not represent or evidence the transaction of sale of goods. It only granted a licence to the plaintiff to pluck and remove the ripe coconuts from 2948 numbered trees grown in the Municipal Farm for a period of 4 years from 1-2-1971 to 31-1-1975.
35.1. The next question for consideration is whether Exts.P-1 and P-2 read together gave a right to the plaintiff to pluck and remove the ripe coconuts from 19-11-1970 onwards. It has come in evidence that during this period the defendant had plucked the coconuts and also collected several coconuts which had dropped from the trees during the aforesaid period. The exact number of coconuts plucked and collected during the aforesaid period will be adverted to a little later.
35.2. From the recitals contained in Ext.P-2 we are of the view that there is no scope for contending that the right to pluck and remove the ripe coconuts of the plaintiff commenced from 19-11-1970. In other words, it is not possible to hold that the Municipality was prevented from plucking and removing or collecting the drop outs from 19-11-1970, the date on which it called for the tenders for giving the right to collect the ripe coconuts from 2948 numbered coconut trees. Clause-1 of Ext.P-2 specifically states that the right to collect the ripe coconuts from the 2948 numbered trees is given with effect from 1-2-1971 to 31-1-1975. Clause-2- further states that such a right will commence from 1-2-1971 and will come to an end on the expiry of 31-1-1975. In addition to this the tender notification Ext.P-1 which preceded Ext.P-2 also states to the same effect. Tender Condition No. 1 specifically states that within 15 days from the date of acceptance of the tender first year's advance amount has to be paid and the agreement has to be got executed from the Municipal Commissioner. It is thereafter he will be entitled to pluck and remove the ripe coconuts from the 2948 numbered trees. In addition to this as already pointed out the tender notification opens with the declaration that a right to collect the ripe coconuts from the coconut trees grown in the Municipal garden is tendered for auction with effect from 1-2-1971 for a period of 4 years. Therefore on a plain reading of Exts.P-1 and P-2 we are of the view that the right to collect the ripe coconuts by the plaintiff from the 2948 numbered trees grown in the Municipal garden in question commenced only from 1-2-1971 and not earlier to that date. There is no other evidence adduced by the plaintiff to show that the interpretation placed by us on Exts.P-1 and P-2 is not consistent with the manner in which the parties understood the tender notification and the contract. P.W.1 who was the farm Manager for some time during the period of contract has not stated that what was understood by the parties was to give a right to the plaintiff to collect the ripe coconuts from 19-11-1970. Even in the evidence of D.W.1 and D.W.3 also no such statement is found. Of course the plaintiff has asserted in his evidence and also in his complaint that he was entitled to pluck the coconuts from the 2948 numbered trees from 19-11-1970. Such an assertion is quite opposed to the terms of the tender notification and the contract. If really the defendant intended to give such a right from 19-11-1970 there should have been a specific recital in the tender notification itself as to in what manner the dropped coconuts from the trees during the aforesaid period and also the ripe coconuts were to be accounted for or dealt with. Therefore, in the absence of any recital as to in what manner the dropped coconuts and also the ripe coconuts during the aforesaid period were to be dealt with and also in the light of the specific recital contained in the tender notification and the agreement that the right to pluck the ripe coconuts would commence only from 1-2-1971, we are clearly of the opinion that the claim of the plaintiff that he was entitled to pluck and remove the ripe coconuts from 19-11-1970 is without any basis. There is also one more valid reason why the contention of the plaintiff cannot at all be accepted. In the grab of interpretation of the contract, the Court cannot alter, modify or substitute the clear terms of the contract. In other words the Court cannot make a new contract for the parties. If the contention of the plaintiff is accepted it would be nothing but modifying the terms of the contract. As per the terms of the contract (Ext.P-2) the period of contract is from 1-2-1971 to 31-1-1975. The acceptance of the contention of the plaintiff results in enlarging the duration of the contract. Consequently, 19-11-1970 to 31-1-1975 would become the period of contract to which the parties themselves have not agreed. Therefore, we hold that the plaintiff had no right to pluck and remove the ripe coconuts from the 2948 numbered trees during the period from 19-11-1970 to 31-1-1971. The claim of the plaintiff in this regard has no basis. It is accordingly rejected.
36.1. The next question for consideration is what was the amount collected by the defendant by sale of the coconuts during the period from 19-11-1970 to 31-1-1971. Of course It is not necessary to record any finding on this question having regard to our finding that the plaintiff had no right to remove the coconuts during the aforesaid period. In view of the fact that the point has been raised and the evidence has been adduced we shall also consider this aspect of the matter.
36.2. As far as the plaintiff is concerned, on this point, he has in the notice given to the Municipal Council and also in the plaint and in his evidence has asserted that during the period 19-11-1970 to 31-1-1971 about 70,000 coconuts had been collected and sold from the 2948 numbered coconut trees by the defendant-Municipal Council. The defendant no doubt admitted that it collected the coconuts dropped from those trees and plucked the riped coconuts during the period from 19-11-1970 to 31-1-1971 from the 2948 numbered coconut trees; but it is the case of the defendant that the claim made by the plaintiff in this regard has no basis either in fact or in law. According to the case of the defendant, as noticed by the trial Court, it had collected. The coconuts dropped from the trees and also plucked in all 6940 coconuts during the period from 19-11-1970 to 31-1-1971. In support of this, the defendant produced Exts.D-1 to D-3 the account extracts and the bill books Ext.D-4 to D-12. The account book was certified by P.W.1 as correct.
36.3. The contention of Sri Gundu Rao, learned Counsel for the plaintiff is that the bill book and also the extract of the accounts are not primary evidence because the primary evidence comprises of plucking and selling coconuts and the accounts are only secondary evidence; therefore, the same should not be relied upon and the case as pleaded by the plaintiff should alone be accepted. It is stated that in the letters Exts.P-65, P-67 and P-71 the plaintiff has consistently averred that the defendant has plucked about 70,000 coconuts and at no time any reply was sent with reference to them and therefore, by reason of the conduct of the defendant, the averments made by the plaintiff in Exts P-65, P-67 and P-71 should be deemed to have been accepted. It is not possible to accept the contention that the contents of the letters Exts.P-65, P-67 and P-71, must be deemed to have been admitted by the defendant because the defendant has failed to send replies to the aforesaid letters, when the defendant has adduced evidence as to the number of coconuts dropped out from the trees and the number of coconuts plucked from the trees and sold by the defendant during the aforesaid period.
36.4. Ext.D-1 contains the entries about the coconuts plucked from the 2948 numbered trees including those dropped out from the trees during the period from 5-9-1970 to 28-11-1970. Ext.D-3 is the stock register. According to P.W.1 it is regularly maintained. The entries in the stock register marked as Exts.D-3(a) to D-3(c) are to the effect that during the period from 19-11-1970 to 30-11-1970, 132 coconuts were plucked and 1341 coconuts dropped out from the trees. During rate which was 25 to 30% more than the rate at which the Municipality sold the coconuts. But for the purpose of collecting and selling the coconuts, the Municipality was required to spend money on labour and management; therefore, we are of the view that even though at the local market rate by sale of 6940 coconuts, a sum of Rs. 6,561-91/- could have been realised, but after deducting the necessary expenses for collecting and selling the same, the reasonable amount would have been Rs. 5047-63/- in as much as 20' to 30% can be deducted towards expenses. Therefore, we are of the view that the finding of the trial-Court that the defendant realised by sale of 6940 coconuts during the period 19-11-1970 to 31-1-1971, 'only Rs. 4,164/- not correct. We reverse the said finding and record our finding that the amount realised by the sale of 6940 coconuts was Rs. 5047-63.
36.5. In view of our finding on the first part of Point No. 1 that Exts. P-1 and P-2 read together did not enable the plaintiff to pluck and remove the ripe coconuts from the 2948 numbered coconut trees and as such he was not entitled to make any claim for the period from 19-11-1970 to 31-1-1971, the decree passed by the trial Court in respect of this claim for a sum of Rs. 4,164/- cannot be sustained. Accordingly, we answer Point Nos.1, 2 and 7 as follows:
Point No. 1:
"Ext.P-1 and P-2 read together did not entitle the plaintiff to collect and sell the coconuts from the 2948 numbered coconut trees from the Municipal Farm in question of the defendant during the period from 19-11-1970 to 31-1-1971. His right to pluck and sell from the 2948 numbered coconut trees in question commenced only from 1-2-1971. During the aforesaid period, the defendant-Municipal Council was entitled to pluck and remove coconuts from the 2948 numbered coconut trees in question. The period from December 1970, 1036 coconuts were plucked and 2424 coconuts dropped out from the trees. In January 1971, 361 coconuts were plucked and 1640 coconuts dropped out from the trees. Thus the evidence of P.W.1 establishes that in all 6940 coconuts were either plucked or collected as dropped out from the trees in question. No doubt P.W.1 has not written Ext.D-1 to D-3. But he was in over-all charge of the farm and It was his responsibility to maintain the Income and expenditure of the farm and the accounts relating to the farm regularly. In addition to this, he has also certified the entries in Ext.D-12. Ext.D-12(a) is the entry relating to November 1970 for a sum of Rs. 2337-73 as having been realised from the sale of coconuts. Similarly there is an entry relating to December, 1971 for a sum of Rs. 1657-49 and for the month of January, 1971 Rs. 1052-41. Thus, in all the amount realised from the sale of the coconuts during the period in question was to the tune of Rs. 5047-63. The b! 11 books Exts. D-4 to D-11 cover the period from 12-11-1970 to 12-2-1971 and also support the entries in the account books. It is also noticed by the trial Court that the defendant sold the coconuts at the subsidised irate of 25 to 30% less than the market rate. Therefore, the trial Court has added that difference to the total of Rs. 5047-63/- and has come to the conclusion that the total amount was Rs. 6,561-91/-. However, While recording the finding it has limited the amount to Rs. 4164/- on the ground that the rate of coconut during the period varied from Rs. 500 to 800/- per thousand. Therefore, the trial-Court has taken an average of Rs. 600/- per thousand as claimed by the plaintiff himself. In view of the fact that the records produced by the defendant-Municipality established that the defendant-Municipal Council, even after selling 6940 coconuts at the subsidised rate realised Rs. 5047-63. The trial-Court was not justified in reducing the amount from Rs. 5,047-63/-to Rs. 4,164/-. If in law the plaintiff was entitled to pluck and remove the coconut from the 2948 numbered tree during the period from 19-11-1970 to 31-1-1971 also, the plaintiff would have been entitled to the market Point No. 2:
In case the plaintiff was held to be entitled to pluck and remove the coconuts from the 2948 numbered coconut trees in question during the period from 19-11-1970 to 31-1-1971, he would have been entitled to a sum of Rs. 5,047-63 which the defendant-Municipal Council had realised by sale of coconuts collected from the 2948 numbered coconut tree in question during the period from 19-11-1970 to 31-1-,1971.
Point No. 7:
Ext.P-2 did not represent or evidence the transaction of sale of goods. It only granted a license to the plaintiff to pluck and remove the ripe coconuts from the 2948 numbered trees grown in the Municipal Farm of the defendant for a period of 4 years from 1-2-1971 to 31-1-1975."
Point No. 9:
37. O.SpNo. 83/72 was filed in the Court of Munsiff, Mysore and it was decided by the I Additional Munsiff, Mysore. A copy of the plaint and written statement and the Judgment in that suit are produced as Exts. D-29, D-30 and D-31 respectively. From Ext.D-29 it is clear that that was a suit for a permanent injunction restraining the defendant-Municipal Council or its agents or servants from interfering with the peaceful possession of the plaintiff Sri C, Ramu and from interfering with his right to pluck the coconuts from the trees in the Municipal Farm during the continuation of the contract dated 1-2-1971.
38. The suit was filed on the averments that the defendant-Municipal Council collected and sold 70,000 coconuts during the period 19-11-1970 to 31-1-1971 and that it had not supplied water for over 500 to 600 coconut trees situated in the southern portion; that it had grown jower in a major portion of the area and that it affected the yield from the coconut trees; that there was breach in the drain and this breach affected water supply to the coconut trees; that lantana was allowed to grow in a plot consisting of over 600 to 800 coconut trees; that over 400 coconut trees were not yielding. Hence, the aforesaid prayer was made in the suit.
39. The defendant Municipal Council filed its written statement (Ext.D-30) and denied the claim that during the period from 19-11-1970 to 31-1-1971 the plaintiff was entitled to pluck and remove the coconuts from the trees in question as the right of the plaintiff to pluck the coconuts commenced only from 1-2-1971. However, the defendant also denied having collected and sold 70,000 coconuts during the said period. It also maintained that there was no growth of lantana and there was no negligence on its part. It also contended that the right to raise inter-crop was reserved and it did not affect the yield of the coconuts and there were no non-yielding trees.
40. On the basis of the pleadings, the trial Court raised the following issues:
(1) Whether the plaintiff proves that defendant has violated terms of agreement and has further caused loss to the plaintiff?
(2) Whether defendant proves that the plaintiff has violated the terms of agreement?
(3) Whether the suit is not maintainable?
(4) Whether the suit is barred under Section 283 of Mysore Municipalities Act?
(5) Whether the plaintiff is entitled for injunction sought for?
(6) What decree or order?
The trial-Court held that the plalntiff-C. Ramu proved that the defendant violated the terms of the agreement, that the defendant failed to prove that the plaintiff violated the terms of the agreement. The Issue relating to maintainability of the suit was not pressed in as much as no arguments were advanced on that issue. Therefore, it was answered in favour of the plaintiff. Issue No. 4 relating to notice under Section 283 of the Karnataka Municipalities Act was also held in favour of the plaintiff and it was held that there was no bar for the suit. Issue No. 5 was answered in favour of the plaintiff. Thus, the suit was decreed as prayed for.
41.1. The contention of Sri Gundu Rao, learned Counsel for the plaintiff is that the aforesaid suit related to the very contract-Ext. P-2 between the parties; therefore the decree passed therein operates as res judicata. On the contrary Sri Papanna, learned Counsel for the defendant, submits that the decree being the one passed in a suit for permanent Injunction cannot at all operate as res Judicata in a suit for damages filed by the plaintiff-C. Ramu.
41.2. The suit was valued for the purpose of the relief under Section 26(c) of the Karnataka Court Fees and Suits Valuation Act, 1958 at Rs. 500/-. The present suit is filed for recovery of damages in a sum of Rs. 1,29,350/-. The Munsiff's Court which tried O.S.No. 83/ 1972 was and is not competent to try the present suit. For the purpose of attracting the provisions of Section 11 of the Code of Civil Procedure, it is necessary that [0 the suit or issue in which the matter directly or substantially in issue has been directly or substantially in Issue in a former suit; (II) both the suits must be between the same parties or between the parties under whom they or any one of them claim; and (III) they must be litigating under the same title (iv) the Court which tried the previous suit must be competent to try the subsequent suit or the suit in which such issue has been subsequently raised (v) the previous suit must have been heard and decided finally.
41.3. As far as the issues are concerned, none of the Issues arising in the present suit was involved in the former suit. The former suit was based on the averment that the defendant-Municipal Council violated the terms of the contract and as long as the contract was not revoked, the plaintiff was entitled to compel the defendant to comply with the terms of the contract. Therefore, an Injunction to that effect was sought. The issues raised in the previous suit are reproduced above. The issues raised in the present suit are not covered by the issues raised in the previous suit.
41.4. The former suit was filed in the Munsiff Court. The present suit is beyond the pecuniary jurisdiction of the Munsiff Court in as much as on the date the present suit was filed and on the date the previous suit was filed, the Munsiff Court was competent to entertain and decide suits only upto the value of Rs. 10,000/- and below. No doubt both the suits were between the same parties and the basis for both the suits was the same contract. However, having regard to the fact that all the conditions laid down in Section 11 of the C.P. Code are not satisfied, it is not possible to hold that the decree passed in O.S.No. 83/1972 by the I Additional Munsiff, Mysore, operates as res judicata.
41.5. In addition to this the previous suit was only a suit for permanent Injunction. In this regard it is very relevant to notice a Division Bench decision of this Court in BASAVANAGOUDA FAKIRGOUDA PATIL v. STATE GOVERNMENT AND ORS 1976(2) KIJ 149. The relevant portion reads thus:
"Apart from the question as to the maintainability of the said earlier suit, the only other issue that arose was whether the plaintiffs therein were in lawful possession of the suit lands, and if so, to what relief they were entitled. Dealing with the scope of the said suit the learned Munsiff in the course of the Judgment observed:
"Before taking up the point whether the land acquisition proceedings were regularly held, in accordance with law, I want to make myself clear that in this case, which is a suit for perpetual injunction and where the Government is not a party the defendant, cannot behind the back of Government question the action of the Government in acquiring the land and allotting to the plaintiffs .......There is no issue framed in this case about the validity or otherwise of the land acquisition proceedings. Hence it is quite unnecessary to go in detail for investigating the correctness or legality of the land acquisition proceedings, for even if for the sake of arguments, it is shown that the land acquisition proceedings are null and void, no finding is going to be given on the point. It is for the defendant to get a declaration against Government in proper proceedings that the land acquisition proceedings are null and void."
However, in the Appellate Judgment disposing of the appeals preferred against the Judgment and decrees in the said suits, the Appellate Court proceeded to discuss the validity of the land acquisition proceedings and certain other aspects touching title. When the trial Court expressly stated that the issue as to title was unnecessary and beyond the scope of the suits, the Appellate Court whose decision was one of affirmance, was not called upon to trench, upon a wider compass and deal with matters touching title. The question, of title to the suit lands was not directly or substantially in issue in the earlier suits. A matter can be said to be substantially in issue, if it is shown that it was of importance and value for the decision of the case and that a decision thereon was necessary to grant relief to plaintiff or against the defendant therein. In a suit for permanent injunction seeking to restrain the defendant from interfering with plaintiff's lawful possession of the suit land, the only question that arises for decision is whether the plaintiff was in possession of the suit land on the date of the suit (See Tarabai v. Krishna Panduranga Powar - AIR 1972 Mys.215 = 1972(1) Mys.L.J. 216). Unnecessary or irrelevant issues, decision of which either way, will not affect the ultimate decision in the suit cannot be said to be of any importance or value for the decision of the case. The rule that a Judgment or decree is not conclusive of anything not required to support it is not a mere rule of construction; but anun - yielding restriction on the powers of the parties and of the Court. A "Judgment" it is said "is conclusive only in respect of matters necessarily inconsistent with it" (See Bigelow on Estoppel, Sixth Edition P.206). The alleged title of Basavanagouda to the suit lands was not necessarily inconsistent with the possessory relief of injunction sought for and granted against him in the earlier suits inasmuch as forcible dispossession is forbidden even with the best of title. No declaration of the title of respondents 2 to 17 was sought in the earlier suits. A bare assertion in the plaint is not a claim; it becomes one If a prayer expressly or by implication, is made for the Court's decision upon it. The observations of the Appellate Court in CAs 80 to 86/1960 on the file of the District Judge, Raichur, on matters which were not and could not have been directly and substantially in issue and not being essential to support the Judgment cannot be considered to be conclusive. A Judgment is not conclusive of matters incidentally brought in during the trial. A fact cannot be in issue directly when the Judgment can be correct whether that fact exists or not. The reasoning of the Appellate Court touching matters of title is inconsequential for, it is the decision and not the reasoning that operates as res -judicata.
Further, the State of Karnataka the 1st respondent herein, was not a party to the earlier suits and the question of the validity of the acquisition proceedings could not have been gone into in the earlier proceedings without the State of Karnataka being impleaded as a necessary party. The general principle is that a person not a party nor claiming under or represented by a party to the litigation is not bound by it. The view of the Court below that the first respondent must be considered to have been represented by respondents 2 to 17 in the earlier suits is wholly erroneous having regard to the facts of the case. We are therefore of the opinion that the contention of Sri S. Vijaya Shankar, learned Advocate for the Appellants, that there could be no bar of res judicata in the circumstances of the case has to be upheld."
Thus, from the aforesaid pronouncement of this Court, with which we are in agreement, it is clear that any decision rendered in a suit for permanent injunction does not operate as res judicata in a subsequent suit on title. It is also further clear that any observation made on the matters which are not and could not have been directly or Implledly in Issue not being essential to support the Judgment, cannot also be considered to be conclusive. Therefore, certain observations made in the Judgment of the previous suit relating to violation of the terms of the contract cannot be held to be conclusive. However, Sri Gundu Rao, learned Counsel for the plaintiff has placed reliance on Explanation VIII to Section 11 of the C.P. Code which reads thus:
"An issue heard and finally decided by Court of limited jurisdiction, competent to decide such issue, shall operate as res-judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised,"
Explanation VIII to Section 11 of the C.P. Code came to be Inserted by Central Act 104 of 1976 in view of the several conflicting decisions rendered by various High Courts relating to Judgments rendered by Courts of limited jurisdiction such as Court exercising jurisdiction under the Rent Control Act, Small Causes and Court deciding the reference made under the Land Acquisition Act etc. Some of the High Courts took the view that the Judgments rendered on the issues competent to be decided by such Courts would operate as res judicata irrespective of the fact whether the subsequent suit was triable by such Court. Whereas some of the High Courts took a contrary view. In order to set at naught the situation obtaining by reason of conflicting decisions, Explanation VIII was inserted.
Explanation VIII does not take away the effect of the main Section viz., the conditions to be satisfied in order to establish that the Judgment or findings on issues rendered in the previous suit operates or operate as res judicata in a subsequent suit. We have already pointed out the conditions to be satisfied for the application of the rule of res judicata. Explanation VIII relates to Courts of limited jurisdiction and not to the ordinary Civil Courts whose jurisdiction is confined to territorial as well as pecuniary and are established under the Karnataka Civil Courts Act, 1964 and similar such enactments in the various other States of the Union of India. In this connection, learned Counsel for the plaintiff has placed reliance on a decision in P.V.N. DEVOKI AMMA v. P.V.N. KUNHI RAMAN in that decision the decision in NABIN MAJHI v. TELA MAJHI has been dissented. The High Court of Kerala in the aforesaid Devoki Amma's case has held that the object of introducing Explanation VIII was to remove the anamoly and to render the principle of res judicata more effective by providing that the prior decision rendered on the issue concerned by a Court of limited jurisdiction competent to decide such Issue shall operate as res-judicata in a subsequent suit not withstanding that such Court of limited jurisdiction was not competent to try such subsequent suit. The expression 'a Court of limited jurisdiction' is wide enough to include a Court whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the said expression as connoting only Courts other than ordinary Civil Courts. It has further held that such a narrow and restricted Interpretation is not warranted by the words used by the Parliament. The object and purpose underlying the introduction of Explanation VIII was very much wide, namely, to render the principle of res judicata fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such issues should not be allowed to be reagi-tated by such parties or persons claiming through them in a subsequent litigation.
The Calcutta High Court in Nabi Majhi v. Tela Majhi while considering Explanation VIII to Section 11 of the C.P. Code, has held that the expression "a Court of limited jurisdiction" occurring in Explanation VIII means Courts other than the ordinary Civil Courts. These Courts are Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts, etc. It has further held that these Courts are intended to try certain specific matters and in that sense, they may be said to be Courts of limited jurisdiction. These Courts are also Courts of exclusive jurisdiction in respect of the matters they are to try. The decisions of such Courts operated as res judicata in subsequent suits not by virtue of Section 11 but on the general principles of res judicata. By enacting Explanation VIII, the legislature has brought the decisions of such Courts within the purview of Section 11. In other words, it is not necessary now to apply the general principles of res-judicata, but in view of Explanation VIII, the decisions of the Courts of limited jurisdiction or exclusive jurisdiction will operate as res judicata in subsequent suits under Section 11. The general principles of res-judicata would apply where the former proceeding is not a suit but Section 11 would apply only where the two proceedings are suits.
It is very relevant to notice in this regard the decision of the Supreme Court in GULAB BAI v. MANPHOOL BAI in that decision, the word 'suit' occurring in Section 11 of the C.P. Code has been Interpreted to mean the entire suit. This interpretation which is relied upon by the Calcutta High Court in Nabin Majhi's case for coming to the conclusion that Explanation VIII is intended to cover Courts such as Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts, Probate Courts etc. and not Courts of ordinary civil jurisdiction whose jurisdiction is confined to territorial as well as pecuniary, as per the provisions of the enactment governing the Courts.
In I.L. JANAKIRAMA IYER v. P.M. NILAKANTA IYER it has been held thus:
"That takes us to the question of res judicata. The argument is that on general grounds of res judicata, the dismissal of the suit (O.S. No. 30 of 1943) filed by defendants 1 to 6 should preclude the trial of the present suit. It has been fairly conceded that in terms of Section 11 of the Code cannot apply because the present suit is filed by the creditors of defendants 1 to 6 in their representative character and is conducted as a representative suit under Order I Rule 8; and it cannot be said that defendants 1 to 6 who were plaintiffs in the earlier suit and the creditors who have brought the present suit are the same parties or parties who claim through each other. Where Section 11 is thus inapplicable, it would not be permissible to rely upon the general doctrine of res judicata. We are dealing with a suit and the only ground on which res judicata can be used against such a suit can be the provisions of Section 11 and no other. In our opinion, therefore, there is no substance in the ground that the present suit is barred by res judicata."
41.6. We are clearly of the view that Explanation VIII is Introduced only with a view to see that the decisions rendered by the Courts of limited jurisdiction like Revenue Courts, Land Acquisition Courts, Adminis-trative Courts, Insolvency Courts, Guardianship Courts, Probate Courts etc. operate as res judicata under Section 11 of the C.P. Code. It has nothing to do with the Courts of ordinary civil jurisdiction governed by the Civil Courts Act. With great respect, we find it difficult to agree with the view expressed by the High Court of Kerala in P.V.N. Devokl Amma's case. We are also of the view that the decision of the High Court of Calcutta in Nabin Majhi's case correctly states the scope, intendment and object of the Parliament in inserting Explanation VIII in Section 11 of the C.P. Code. If Explanation VIII is extended to the Courts of ordinary civil jurisdiction and the requirement of competency to try the later suit by the Court which decided the earlier suit is held to have been removed by the Explanation VIII, it would not only remove the difference between the various Courts of different jurisdiction under the Civil Courts Act and it would also result in either drastically amending the first portion of Section 11 of the Code or rendering one of the conditions contained therein regarding competency to try the later suit, as otiose, which the Parliament never intended in inserting Explanation VIII. Therefore, it is not possible to agree with the contention of the learned Counsel for the plaintiff that irrespective of the fact that the I Additional Munsiff, Mysore, was and is not competent to try the subsequent suit, the Judgment and decree rendered in O.S.No. 83/1972 operate as res judicata. We accordingly, answer Point No. 9 in the negative.
Point No. 6:
42. As far as the relevancy of the Judgments is concerned, Sections 40, 41, 42, 43 and 44 of the Evidence Act deal with the same. Section 40 of the Evidence Act specifically lays down that the existence of any Judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial. Section 43 specifically states that the Judgments, order or decree other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such Judgment, order or decree, is a fact in issue or is relevant under some other provision of the Evidence Act. Section 41 relates to relevancy of certain Judgments in probate etc. Section 42 relates to relevancy and effect of Judgments, orders or decrees other than those mentioned in Section 41. Section 44 provides that any party to a suit or other proceeding may show that any Judgment, order or decree which is relevant under Sections 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court not competent to deliver It or was obtained by fraud or collusion. Thus, for our purpose Sections 41, 42 and 44 are not relevant. It is only Sections 40 and 43 of the Evidence Act which are relevant.
43. It is already held by us that the Judgment and decree in O.S.No. 83/72 does not operate as res judicata. Section 40 of the Evidence Act makes the Judgment and order or decree relevant only when they are required for the purpose of preventing the Court from taking cognizance of the suit or holding a trial. In other words, the Judgment under Section 40 of the Evidence Act is relevant only when the existence of which bars the Courts from taking cognizance of the suit or deciding it. In other words, the Judgment, if it operates as res Judicata, then only it is relevant and admissible and it can be looked into. In this connection, however, the learned Counsel for the plaintiff has placed reliance on a decision of the High Court of Kerala in JOSEPH v. MAKKARU . In that decision, after holding that the Judgment did operate as res judicata as against defendants 2, 11, 24 and 104 and it did not operates as res judicata against other defendants, it was further observed thus:
"Quite apart from the plea of res judicata, it cannot be gainsaid that the decision in O.S.No. 4 of 1945 casts a heavy burden on the defendants who were parties to that suit to displace the conclusion reached in that case, and that the said burden has not been discharged. It is true that the Indian Evidence Act, 1872, does not draw any distinction between a Judgment which is not inter parties and a Judgment which is inter parties except where the Judgment is clearly res judicata. But as pointed out by Monir, "Although a finding in a previous suit inter parties does not operate as res Judicata it is the paramount duty of the party against whom it is given to displace that finding."
(Principles and Digest of the Law of Evidence, 4th Edition, Vol.1 page 334). The Authority cited for the proposition is Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, AIR 1922 P.C. 241."
44. Based on the aforesaid observations, It is contended that the findings recorded on issues 1 and 2 framed in O.S.No. 83/72 estop the defendant-Municipal Council to contend to the contra.
We find it very difficult to agree with the aforesaid decision of the High Court of Kerala in Joseph's case. The Judgment can be relevant only if it falls under one of the provisions of Sections 40 to 44 of the Evidence Act, There is no other way out for looking into the Judgment If It does not fall in any one of the provisions of Sections 40 to 44 of the Evidence Act. We have already pointed out that the Judgment does not fall under Section 41 or 42 of the Evidence Act. If at all, it has to fall it has to fall under Section 40 of the Evidence Act. The conditions required for satisfying Section 40 of the Evidence Act are that the Judgment is required to be looked into for the purpose of deciding the question as to whether the present suit can be taken cognizance of by the Court or can it be tried. We have already pointed out that it does not operate as res judicata. Therefore, it does not fall under Section 40 of the Evidence Act. If the contention of the learned Counsel is accepted, we will be laying down another type of estoppel by Judgment not being a Judgment in rem, even though such Judgment does not operate as res Judicata.
Similar question arose in SARANGAPANI v. VENKATA NARASIMHACHARYALU . After referring to the various decisions on the point, it was held thus;
"There has been a considerable amount of refinement of the language of Section 11 Civil Procedure Code, and however much one would wish to write on a clean slate, it is not now feasible. I am unable, with great respect to agree with the observation of Sadasiva Iyer, J. In the case in RAMAN v. MANAKKAI 28 Madras Law Journal 184 that even if a decision is not 'res judicata', it nevertheless operates as an estoppel. Estoppel results from the acts and conduct of the parties and I fail to see how the decision of a Court might be erroneous, can operate as an estoppel. If it is a Judgment 'in rem', it is binding on all persons whether parties or not. If it is any other kind of adjudication, it binds the parties if it falls within Section 11 Civil Procedure Code or the general principle of 'res judicata' recognised by the decisions. Estoppel by record is what is provided for, in Section 11 Civil Procedure Code. It is not within the province of a Court to introduce another kind of estoppel by Judgment not covered by Section 11 or the general principles of 'res judicata'. See The Secretary of State v. Syed Ahmed Badsha Bahadur, 44 Mad. 778 (F.B),"
We are in full agreement with the law enunciated as above.
45. The contention of the learned Counsel, if accepted, will make a very serious Inroad into the rights of the parties and also Section 11 of the C.P.Code in asmuch as, in a suit for permanent injunction, the Court is required to decide a limited issue. If it is a suit for Injunction, relating to immoveable property, the Court is required to decide only prima facie title and the possession of the suit property on the date of the suit by the plaintiff and interference by the defendant. All other findings will be only to aid the aforesaid findings and they will not be really in issue. Therefore, if such findings were to become conclusive, even though the parties and the Court never intended in that way, it would be nothing but affecting the rights of the parties without affording them an opportunity to meet such a situation.
In S.M. JAKATI v. S.M. BORKER the Supreme Court had an occasion to consider the question as to admissibllity of the findings recorded in a Judgment in another proceedings. In para 11 of the Judgment, the Supreme Court observed thus:
"......any opinion given the order of the Deputy Registrar as to the nature of the liability of defendant No. 1 M.B. Jakati cannot be used as evidence in the present case to determine whether the debt was 'Avyavaharika' or otherwise. The order is not admissible to prove the truth of the facts therein stated and except that it may be relevant to prove the existence of the Judgment itself, it will not be admissible in evidence. Section 43 of the Evidence Act, the principle of which is, that Judgments excepting those upon questions of public and general interest, Judgment in rem or when necessary to prove the existence of a Judgment, order or decree, which may be a fact in issue are irrelevant."
We have already held that the Judgment rendered in O.S.No. 83/72 is not relevant as it does not fall under Section 40 of the Evidence Act. That being so, the findings recorded therein cannot at all be relied upon in this suit nor can those findings be held to operate against the defendant. As such the defendant cannot also be estopped from contending to the contra. Accordingly Point No. 6 is answered in the affirmative, Point No. 8:
46. It is contended on behalf of the defendant that when the plaintiff filed O.S.No. 83/72 on the cause of action that the defendant-Municipal Council committed breach of the conditions of the contract (Ext.P-2), the reliefs that are sought for by the plaintiff in the present suit were available to him and as such the same ought to have been sought for in the previous suit. Failure to seek the reliefs which are now sought for in O.S.83/72 bars the plaintiff from seeking the reliefs in the present suit in view of the provisions of Order II Rule 2 C.P.C., as no leave was sought and obtained in the previous suit.
It appears to us that It is not possible to accept this contention. As already pointed out Ext.D-29-plaint, in O.S.83/72 was filed for a permanent injunction on the ground that the defendant had committed and continued to commit breach of the conditions of the contract. Therefore, the cause of action for that suit was commission of breach of the conditions of the contract and interference with the right of the plaintiff to pluck and remove the coconuts from the 2948 numbered coconut trees as per the contract. The present suit is not based upon the same cause of action, it is based on the ground that the plaintiff was put to a loss as quantified in the plaint due to various acts of commissions and omissions by the defendant during the relevant period. In order to attract the bar under Order II Rule 2 C.P.C. both the suits must be based on the same cause of action. As per the said provision, every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. Where the plaintiff omits to sue in respect of, or Intentionally relinquishes any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Thus, the primary requirement for attracting the bar under Order II Rule 2 C.P.Code is that the cause of action on the basis of which the earlier suit was filed the relief prayed for in the latter suit must have been available in the former suit. Having regard to the averments made in the plaint and also the period for which the present suit is filed, it is not possible to hold that the reliefs sought for in the present suit flowed from the cause of action of the previous suit. Therefore, as both the suits are not based on the same cause of action, the bar under Order II Rule 2 of the C.P. Code is not attracted. Accordingly, Point No. 8 is answered in favour of the plaintiff and against the defendant.
Point No. 5:
47.1. The case of the plaintiff is that as per the terms of the contract, the defendant was to maintain the coconut farm in such a way so as not to affect the normal yield of the coconuts from 2948 numbered coconut trees. According to the case of the plaintiff, the defendant did not maintain the coconut garden properly. It allowed lantana to grow in an area covered by 600 to 800 coconut trees and that affected the yield from those trees. The further case of the plaintiff is that in addition to allowing lantana to grow, the defendant also raised inter-crop such as jowar and water was not supplied to 500 to 600 trees. This, according to the plaintiff, had happened during the period from 1-2-1971 to 31-1-1972 which resulted in a loss of Rs. 36,000/-.
47.2. Issues 2 to 6 framed by the trial-Court covered these aspects. As already pointed out, the trial-Court has held that the defendant failed to regularly supply water to 300 trees and it has also held that though it did not result in failure of supply of water to one of the plots as alleged by the plaintiff. The trial Court has also further held that though lantana appeared to grow, but the same was immediately removed and it was not allowed to grow and as such it did not affect the yield of the coconut trees. It further held that the defendant was entitled to raise inter-crop and the jowar crop, as an inter-crop, but It did not affect the yield of the coconut trees.
47.3. We shall now consider how far these findings recorded by the trial Court are correct and can be accepted.
In this regard, the evidence of P.W.1 itself is against the plaintiff. He has stated that though there was a growth of lantana, but it was got removed on spending a sum of Rs. 8,000/- to Rs. 10,000/-. The trial Court on the basis of this evidence has rejected the case of the plaintiff. When the plaintiff himself has not been able to establish that the defendant allowed to grow lantana the question of yield being affected by the growth of lantana does not arise because the lantana was immediately removed. We do not find any reason to differ from the finding of the trial-Court in this regard.
47.4. The next question for consideration is as to whether the defendant was entitled to cultivate the area available in between the coconut trees and raise inter-crop.
Clause 13 of the agreement Ext.P-2 says:
On the basis of this clause, the trial Court has held that the defendant under the contract had the right to cultivate and raise crop. As far as the raising of the Inter-crop is concerned, the evidence on record discloses that in certain areas jowar crop was grown. Of course there is some evidence with regard to raising of banana crop in certain areas for a certain period but it is not the case of the plaintiff that Banana was grown as an inter-crop. In this regard, the evidence of P.W.1 and D.W.3 goes to show that raising of jowar crop as an inter-crop does not have the effect of reducing the yield from the trees in as much as water supplied from the sewage contained sufficient nutritious elements which would go deep into the land deeper than the area that would be covered by the jowar crop, Therefore, the yield was not affected. The trial-Court has placed reliance on this evidence and has held that the raising of Inter-crop did not affect the yield. We are also of the view that the evidence on record is not sufficient to hold that raising of inter-crop such as jowar has affected the yield of the coconuts.
Point No. 4:
48.1. The case of the plaintiff is that the defendant failed to supply water to 500 to 600 coconut trees out of 2948 numbered coconut trees. In this regard, the trial Court has observed that the case of the plaintiff is not consistent. The evidence on record discloses that the eastern side of the farm was on a higher level and there were certain trees which were fed by rain water. However the evidence of D.W.3 discloses that the whole of the farm was being Irrigated by the sewage water. He has stated that the farm was irrigated by surface water method. In para-8 of his deposition he has stated thus:-
"The Municipal sewage farm is irrigated with sewage water collected from all over the city by under ground drainage system. Sewage water is the refuse water along with drainage water. From the point of view of nutritional value for plants, the sewage contains about 3% to 6% Nitrogen; 2% phosphorus and 2% potash. That way, the sewage water is nutritionally superior to ordinary water. In view of such nutritional contents, the sewage water was sufficient to feed the coconut trees in the Municipal Sewage Farm. Such sewage water is supplied to the garden throughout the year. The sewage water was more than sufficient for irrigating entire sewage farm. Surplus sewage water is sold at cost to the neighbouring gardens. The Municipal sewage farm has read sandy loam and is suitable for coconut cultivation."
He has further stated thus:
"During the period I worked as Manager, Municipal Sewage Farm, it was properly cultivated and the supply of nutrients was sufficient as nutritious sewage water was being supplied."
He has further stated in Para-15 of his deposition that;
"The numbered coconut trees given on contract appeared to be spread over different blocks are contiguous to one another. Some of the trees were situated at a higher level. There is a tank for sewage water and a pump house. With the aid of that pump and sewage water is pumped to the trees at a higher level and by making such water flow by gravitational, method through channels. About 300 trees are given under contract were at a still higher level and the water pumped through the pump could not reach such trees. Those trees were being fed only by rain water right from the inception. The average yield from those rain-fed trees is between 60 to 70 coconuts per tree per year."
48.2. Thus, the evidence of this witness who worked as Farm Manager from 3-5-1971 to 18-5-1974 and it was this witness who immediately succeeded P.W.1 goes to show that even from the inception about 300 trees were at a higher level and those trees were being fed only by rain-water. Under the contract Ext.P-2 the defendant was under an obligation to maintain the farm as usual and as It was maintaining it earlier. About 300 trees were from the inception fed by rain water. It is the case of the plaintiff that 300 trees were not at all supplied with water from the sewage channel; therefore, loss was caused to him, cannot be accepted. Ext.P-2 did not require the defendant to maintain the farm in a manner different from the way it was maintained prior to Ext.P-2.
The evidence of D.W.2 is also material in this regard. He was a labourer in the Municipal Farm since 10 to 12 years. His duty was to attend to the regulation of supply of sewage water to the coconut trees and other crops in the sewage farm. Along with him 3 other permanent labourers were attending to such work. During the period of contract, D.W.2 and Bangara Raju, Dodda Sidda and Ponna were attending to the supply of water to the coconut trees. They were attending to such work between 10 a.m. to 5 p.m. All the trees taken on contract by the plaintiff according to the evidence of D.W.2 were yielding. In the cross examination he has deposed thus:
"We were regularly supplying water for growth of such grass. We had been employed to feed water to such grass. There are some other plots, where there are only coconut trees without any grass growing. We were also feeding water to such plots. It is not true that such plots where grass is not raised or at a higher level than other plots. The maistry and manager were maintaining books showing the details of work entrusted to us. It is true that we had been employed to feed water to the grass that was being raised in the sewage farm."
He has further stated thus:
"I was also feeding water to the plots where there were coconut trees. Except the 40 trees which had no tops, the other coconut trees were yielding,"
Even in the evidence of D.W.1 it has come on record (vide para 4) thus:-
"The sewage farm is supplied with sewage water collected from all over the city. Inside the sewage farm there are number of open channels to feed that sewage water to the numbered coconut trees. The sewage water from , all over the City reaches the sewage Farm by under ground drainage system. At the sewage farm, this water is lead through the manholes to the open channels to feed the numbered coconut trees. The sewage water is sufficient to reach all the numbered coconut trees through out the year."
In the light of this evidence, It is not possible to agree with the finding of the trial Court that there was any negligence on the part of the defendant to supply water to the numbered trees. It is also relevant to remember that these numbered trees were spread all over the farm. Along with these numbered trees there were other trees which were not given to the plaintiff and were retained by the defendant and they were marked in white colour. If there was any negligence on the part of the defendant in maintaining the numbered trees, the other trees also would have been affected.
Nowhere it has come on record that due to negligence, the other trees which were retained by the Municipal Council were affected or died due to lack of water.
No doubt P.W.2 has given evidence that 300 trees were not supplied with water. There were many labourers engaged to supply water to the trees. The evidence of P.W.1 in this regard becomes Improbable and unacceptable in the light of the evidence of D.W.s.2 and 3. Therefore, we are of the view that the evidence on record does not establish that defendant-Municipal Council failed to maintain the coconut farm in the manner in which it was maintaining prior to the date it was given to the plaintiff under Ext.P-2.
48.3. There is also another circumstance which has come on record in the evidence of D.W.1 that immediately after the period of contract of the plaintiff was over, the right to pluck the coconuts from the numbered trees was again auctioned for the year 1975 in the month of April 1975 and the right to pluck coconuts from the numbered trees was given to one Sudarshan who offered the bid for a sum of Rs.1,04,000/-for a period of one year. This evidence which is not challenged in the corss-examination goes to show that the farm was well-maintained as otherwise Rs. 1,04,000/-would not have been offered for a period of one year immediately after the period of contract of the plaintiff was over. Therefore, we reverse the findings recorded by the trial Court that the defendant has failed to supply water to 300 coconut trees and as a result of it the yield was affected and the plaintiff was put to a loss. Accordingly, Point No. 4 is answered in the negative.
Point No. 3:
49.1. The case of the plaintiff is that there were more than 400 trees among the 2948 numbered trees which were not yielding. He has further averred in the plaint that as a result of the act of negligence and suppression of true facts by the authorities of the defendant, he had suffered a huge loss. He has also further stated that he immediately brought It to the notice of the concerned authority. In the written statement, the defendant has denied this case of the plaintiff. Of course the trial Court has not framed specific issue as to suppression of material facts by the defendant. Nevertheless it has proceeded to record a finding that the defendant suppressed that there were certain non-yielding trees. The learned trial Judge was conscious of the fact that there was no issue framed in this regard. Nevertheless he proceeded to record a finding because both the parties were aware of this fact. The relevant portion is found in para-18 of the Judgment. It reads:
"This allegation would mean that the defendant had suppressed from the plaintiff the fact that among 2948 coconut trees several were unyielding and such concealment would entitle him to claim damages. Before considering this aspect of the case, it is essential to mention that though no "specific issue had been raised, the parties have adduced the necessary evidence and arguments have also been advanced by the learned Counsels when issue No. 8 has come up for consideration. It is under such circumstances that this aspect is now taken up for consideration."
49.2. It is not possible to agree with the reasoning of the trial Court. Suppression of material fact is an important matter having a bearing on the validity of the contract itself. As such it will have a very serious consequence. Therefore, it was necessary for the trial-Court to frame an issue in this regard. In the absence of an Issue, it cannot be presumed that the attention of the parties had been drawn to that aspect of the matter. No doubt the plaintiff did aver in the plaint that there was suppression of material fact; but he did not insist upon raising an issue in this regard. The attention of the defendant and its witnesses was not drawn particularly to this aspect of the matter.
49.3. As per the tender notification Ext.P-1, tenders were called for grant of the right to pluck coconuts from 2948 numbered coconut trees. It was also open to those who intended to offer bids to inspect the garden. Accordingly, it is the case of the plaintiff that he did inspect the garden before he submitted his tender. The plaintiff after inspection of the farm found that there were huge number of coconut fruits on the numbered trees and based on the same, he submitted his tender for Rs. 3,78,750/- for four years payable in four yearly Instalments. Thus, on inspection only he submitted his tender.
In the evidence, the plaintiff has further stated thus:
"As I proceeded in the jeep along the road at the time of my inspection, I could see all the trees. So I am able to say that there were about 200 to 250 coconuts in each tree. Even P.W.1 said that there was water supply to the trees, they were yielding 200 to 250 coconuts per tree."
In order to make a claim that during the period from 19-11-1970 to 31-1-1971 the defendant had removed 70,000 fruits from the trees in question, the plaintiff came forward with the case that he had inspected the garden and noticed that there were 200 to 250 coconuts in each one of the numbered coconut trees. If that be so, where was the question of suppression on the part of the defendant. On the date, the tenders were called for, all the trees were having fruits and on the date he was allowed to pluck the coconuts I.e., 1-2-1971, there were also coconuts in all the trees but in some of the trees, the numbers were reduced because between the period from 19-11-1970 to 31-1-1971 the defendant had removed 70,000 coconuts from the numbered coconut trees. This plea of the plaintiff and his evidence in this regard make the case of the plaintiff that there were more than 400 trees unyielding highly improbable and unacceptable. Within two months, he submitted Ext.P-68 giving the numbers of the coconut trees which were not yielding. After careful scrutiny of Ext.P-68, the trial Court found 261 numbered trees mentioned therein were not yielding. Sri Gundu Rao, learned Counsel appearing for the plaintiff on verification submitted that the figure 261 arrived at by the trial Court was correct. But what makes the case of the plaintiff unacceptable in this regard is his own evidence which as already pointed out is to the effect that when he inspected the farm, he found that each and every numbered trees was having 200 to 250 coconuts. If that be so, how was it possible and how it could be believed that within two months, those trees could be certified as non-yielding trees. Of course, 261 trees listed in Ext.P-68 was accepted as not yielding by D.W.3 in his evidence when it was confronted to him with reference to his deposition in the suit O.S.No. 83/72. The deposition of D.W.3 is marked as Ex.P-76 and the relevant portion in Ex.P-76 is marked as Ext.P-76(a). It reads:
"It is true that out of these numbered trees given to plaintiff in that area that there are the unyielding trees as per list furnished by plaintiff."
The list referred to by him, It is not in doubt, and it is also not disputed before us, is Ext.P-68. In the evidence before the Court D.W.3 has stated that:
"Among the 2948 coconut trees given on contract to the plaintiff only 12 trees were dead and unyielding."
D.W.3 has further stated at para 27 of his evidence thus:
"It is not true, that among the numbered coconut trees given on contract to the plaintiff 400 were not yielding. Only 12 trees were not yielding."
The evidence of D.W.2 is to the effect that all the trees taken on contract were yielding. In the cross-examination D.W.2 has stated that among the coconut trees taken on contract by the plaintiff about 40 had no tops and some were not yielding. D.W.1 in this regard in his evidence at para-5 has stated thus:
"After I took charge and till the plaintiff's contract period ended only 53 among the numbered coconut trees were dead due to several natural calamities and were unyielding."
D.W.1 took charge of the Municipal Farm on 9-9-1974. D.W.3 took charge of the Farm on 3-5-1971 and worked as Farm Manager till 18-5-1974.
49.4. The evidence of P.W.1 who worked as Farm Manager of the Municipal Farm in question form July, 1970 to May 1971, in this regard has stated at para-54 of his evidence thus:
"During ray period of service as manager about 10 to 15 coconut trees had died due to such natural causes."
P.W.1 has further stated that:
"At the time of that agreement there were 2948 numbered coconut palms. There were coconut fruits in those trees at the time tenders were called. That coconut crop consisted of both ripe and tender coconuts. The plaiutiff and several others who wanted to offer tenders, had inspected the crop before offering tenders."
He has further stated thus:
"The 2948 numbered coconut trees included those that were in a dying stage and also that were yet to yield. The numbering of the trees was done as the previous numbering of the trees had been done about 10 years back and it had been washed off. The numbering of the trees was done also to facilitate calling for tenders. In all there were approximately 300 to 400 coconut plants including the old palms and those that were yet to yield, at the time plaintiff's tender was accepted."
Thus the evidence of P.W.1 is contradictory. In one breath he says that the coconut trees were having fruits at the time tenders were called for and in another breath, he says that there were approximately 300 to 400 coconut plants including the old palms and those that were yet to yield at the time plaintiff's tender was accepted. Whereas the other evidence on record discloses that young trees which were not yielding were not given to the plaintiff. Such trees were retained by the Municipal Council and they were numbered with white colour and those which were given to the plaintiff were marked with red colour.
49.5. As far as the evidence of the plaintiff (P.W.2) is concerned, It is relevant to notice that in the plaint he has pleaded that:
"Out of the 2948 numbered trees published as yielding trees; it was found that more than four hundred trees were not yielding."
Whereas, in his evidence he has stated thus:-
"After I entered into the agreement and started plucking coconut, I found that among the 2948 numbered coconut trees, some of them were without tops and not yielding and some young and not yielding coconuts. Thus there were in all 400 coconut trees which were not yielding."
The claim of the plaintiff is not that the 400 trees were not to yield for all the four years. The list of numbered trees which were not yielding, produced in the suit, according to the plaintiff was submitted Immediately within two months from the date of the contract and there was no reply to such a representation. In the light of the evidence on record, we find it difficult to accept the case of the plaintiff that about 400 trees, or as found by the trial Court 261 trees were not yielding.
During the period of contract, if due to natural calamities, such as lightening and other causes some of the numbered trees became incapable of yielding, the defendant could not be held responsible for the same. The non-yielding was neither referable to the negligence on the part of defendant nor there was any suppression of fact essential to the contract. In the Instant case, in the light of the very evidence of the plaintiff, we have already held that there was no suppression of fact.
However, Sri Gundu Rao, learned Counsel for the plaintiff, submitted that in the light of the admission of D.W.3 as contained in Ext.P-76(a), the finding recorded by the trial Court, at least to the extent of 261 trees was unassailable. No doubt D.W.3 deposed in the previous suit as per Ext.P-76(a) and accepted Ext.P-68 the list containing 261 non-yielding trees. But the question for consideration is whether the statement which was made in an earlier proceeding and which is marked in the present case under Section 145 of the Evidence Act, can in the light of the evidence on record be accepted.
The scope and object of bringing the previous statement on record, under Section 145 of the Evidence Act after following the procedure prescribed in that Section, is stated by the Supreme Court in SITA RAM BHAU PATIL v. RAMACHANDRA NAGO PATIL. In 13. has been held therein that the provisions in the Evidence Act that 'admission is not conclusive proof' are to be considered in regard to two features of evidence. First what weight is to be attached to an admission? It has to be found out whether the admission is clear, unambiguous and is relevant piece of evidence. Second even If the admission is proved in accordance with the provisions of the Evidence Act and if It is to be used against the party which has made it, it is sound that If a witness is under cross-examination on oath, he should be given an opportunity, if the documents are to be used against him to tender his explanation and to clear up the point of ambiguity or dispute.
No doubt such a previous statement is brought to the notice of the witness and he has admitted during the course of the evidence in the case. The question for consideration is as to what value should be attached to such an admission. In this case, he has stated that he does not remember as to whether he has made such a statement. Of course in the light of the fact that the statement is marked as Ext.P-76(a), the denial of D.W.3 may not matter much. However, he has further stated that he was not able to say since how long those trees were not yielding and he does not remember the contents of Ext.P-76(a). He has further deposed that he does not remember to have made such statement as Ext.P-76(a) and those trees were not yielding and he does not remember to have stated in the other suit as per Exts.P-76(a) and P-76(b). In the light of the other evidence on record the statement contained in Ext.P-76(a) cannot be accepted as true and as conceedlng the case of the plaintiff. If really according to the case of the plaintiff more than 400 trees were not yielding and some of the trees were topless, it means about 1/6th of the trees in respect of which right to pluck the coconuts was given to the plaintiff, were not yielding. If really it was so, in the normal course the plaintiff would not have continued the contract. The fact is that the plaintiff continued the contract and plucked the coconuts for the entire period of the contract. Further there is no evidence to show that all the 4 years those trees were not yielding. In addition to this immediately after the expiry of the period of contract given to the plaintiff another person took the very trees for more than one lakh for a period of one year. All these circumstances go to show that the case put forth by the plaintiff that there were more than 400 trees which were not yielding and therefore he was put to loss becomes highly improbable and unacceptable. Under these circumstances we find it very difficult to attach any importance to Exts. P-76(a) and P-76(b).
In this regard there is another contention urged on behalf of the defendant that having regard to Condition No. 16 of the contract the defendant is not liable for any loss caused to the plaintiff. Condition No. 16 states thus:
In support of this contention, learned Counsel has placed reliance on a decision of the Supreme Court in Syed Israr Masood v. The State of Madhya Pradesh. In that case a suit was filed by the contractor against the State of Madhya Pradesh for recovery of a sum of Rs. 29,500/- from the defendant by way of refund of the first Instalment of the sale price deposited by the plaintiff with the Forest Department of the defendant-State pursuant to an auction of two forest coupes held on August 17, 1960, together with damages alleged to have been sustained by the plaintiff on account of alleged breach of contract by the defendant. The relevant term of the contract was as follows:
"The details of quantities of forest produce announced at the time of auction are correct to the best of the knowledge of the Divisional Forest Officer but are not guaranteed to any extent. The intending bidders are, therefore, advised to inspect on the spot the contract area and the produce they intend to bid for with a view to satisfy themselves about its correctness. No claim shall lie against the State Government for compensation or any other relief, if the details of the quantities are subsequently found to be incorrect."
On the basis of the aforesaid condition, the Supreme Court held that the plaintiff was not entitled to claim damages. However, it was held that he was entitled to claim reduction in the contract rate, having regard to the fact that there was a substantial alteration in the very foundation of the contract.
In the instant case, as rightly submitted by Sri Gundu Rao, learned Counsel for the plaintiff, Clause No. 16 does not enumerate the grounds on the basis of which no claim can be made for the loss. Clause No. 16 of the contract in question is in general terms. It completely bars the remedy to the defendant to make a claim for damages or any other relief arising out of the contract in question. Such a Clause results in denying the right to seek relief or disables the contractor-plaintiff to enforce the right under the contract. Such a clause cannot be held to be valid and enforceable. If such a Clause is held to be valid and enforceable, it will enable the defendant to prevent the contractor-plaintiff from executing the contract or to cause hindrance in execution of the contract and prevent the contractor-plaintiff to make a claim for the loss caused to him by reason of the illegal act of the contracting party-defendant and at the same time it will also enable the contracting party-defendant to make a claim against the contractor-plaintiff for having failed to execute the contract. Thus, the Clause enables the contracting party-defendant to take advantage of his own acts of commission and omission resulting in breach of the contract. In the aforesaid decision, the bar of claim against the State related to the details of quantities of forest produce announced at the time of auction. However, no guarantee of the correctness of the details of quantities of the forest produce was given. Therefore, the bidders were advised to inspect on the spot, the contract area and the produce they intended to bid with a view to satisfy themselves about Its correctness. In view of this, the Clause further provided that no claim should lie against the State Government for compensation or any other relief if the details of the quantities were subsequently found to be incorrect. Thus, the Clause concerned in the aforesaid decision of the Supreme Court (Syed Israr Masood v. The State of Madhya Pradesh) related to details of the quantities of forest produce only, which were announced at the time of auction and in respect of which the Intending bidders were put on guard to Inspect and satisfy themselves about the correctness of the details of quantities of forest produce announced; whereas the clause with with we are concerned absolves the contracting party-defendant from the liability of any kind arising out of the contract as a result of loss caused to the contractor-plaintiff. Thus, it bars the contractor-plaintiff from making any claim of whatever nature against the contracting party-defendant. On a close reading, such a Clause amounts to excluding the jurisdiction of the Court, which is not permissible to either of the parties to agree upon. It is open to the parties to the contract to agree to subject themselves to the jurisdiction of a particular Court. In that event they will be bound by the agreement and even in such a case if enforcement of such a clause is found by the Court highly unjust and results in miscarriage of justice, it would be open to the Court, within whose jurisdiction a part of cause of action has arisen, to refuse to act upon such a clause of the agreement. Clause No. 16 of the contract in question, does not fall even in that category. It completely bars the remedy to the defendant. Hence, we are of the view that Clause No. 16 is Invalid and cannot be enforced. Accordingly, the contention of the defendant based on Clause No. 16 of Ext.P-2 is rejected and it is held that Clause No. 16 of Ext.P-2 is invalid and unenforceable. Accordingly, Point No. 3 is answered in the negative.
50. For the reasons stated above, R.F.A.No. 94 of 1983 filed by the plaintiff is dismissed. R.F.A.No. 171 of 1976 filed by the defendant is allowed. The Judgment and decree of the trial-Court in O.S.No. 67 of 1972 are reversed. The suit is dismissed with costs throughout, R.F.A.No. 94 of 1985 filed by the City Municipal Council-plaintiff in O.S.No. 125/72 is dismissed with costs. The Judgment and decree of the trial-Court in O.S.No. 125/72 are affirmed.