Madhya Pradesh High Court
M/S Rainbow Friends Video Vision vs The State Of M.P. on 31 March, 2021
Author: Sujoy Paul
Bench: Sujoy Paul
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
WRIT APPEAL NO.251 OF 2021
(M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh)
Indore, Dated 31.03.2021
Mr. Aviral Vikas Khare, learned counsel for the appellant.
Mr. Bhaskar Agrawal, learned counsel for the
respondents/State.
With the consent of parties, heard finally.
ORDER
In this intra-court appeal, the challenge is made to the order dated 02.11.2020 in Writ Petition No.20719 of 2019 to the extent the relief was partially declined to the appellant by reserving liberty to approach the appropriate Forum by treating one fact as a disputed question of fact.
2. Briefly stated, the singular question needs consideration by this Court is whether the learned Single Judge was justified in relegating the appellant to avail the alternative remedy to establish that the order dated 14.05.2019 (Annexure-P/9) was communicated to him on 20.05.2019 i.e. almost after completion of photography and videography work. Undisputedly, on 10.03.2019 (Annexure-P/6), a work order was issued whereby Rs.1935/- per day was fixed for videography work, whereas Rs.941/- per day was fixed for photography work through Digital Camera. The appellant continued this work. Subsequently, by order dated 14.05.2019 (Annexure- P/9), additional work was assigned to the petitioner on the same rates. The petitioner approached the writ-court in aforesaid writ petition by contending that the modified work order dated 15.05.2019 was issued behind his back in a contractual matter and this order was also communicated to 2 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT APPEAL NO.251 OF 2021 (M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh) him after completion of work on 20.05.2019.
3. Mr. Aviral Vikas Khare, learned counsel for the appellant by taking this Court to the relevant documents submits that this communication dated 15.05.2019 (Annexure-P/1) was communicated to the petitioner through WhatsApp on 20.05.2019. In para 5.9 of writ petition, petitioner categorically pleaded the same. There was no categorical denial by respondents. The evasive reply filed, by no stretch of imagination can be construed to draw a conclusion that the aforesaid fact of communication of order dated 15.05.2019 on 20.05.2019 was a disputed question of fact. Thus, the learned Single Judge while partially allowing the petition has committed an error in relegating the petitioner to establish this fact of communication of order dated 20.05.2019 before appropriate Forum. It is further argued that once the rate of payment is fixed by order dated 10.03.2019 (Annexure-P/6), it could not have been unilaterally modified to the detriment of the appellant.
4. Mr. Bhaskar Agrawal, learned counsel for the respondent/State has supported the impugned order. No other point is pressed by learned counsel for the parties.
5. We have bestowed our anxious consideration on rival contentions and perused the record.
6. The appellant in para 5.9 of petition pleaded as under:-
"That the impugned decision dated 15.05.2019 was deliberately not communicated to the petitioner for more than 5 days. The impugned order dated 15.05.2019 was communicated to the petitioner for the first time on whatsapp on 20.05.2019 and 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT APPEAL NO.251 OF 2021 (M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh) by post on 07.06.2019. A true photocopy of the post receipt is Annexure-P/10, whereas screen shot of the WhatsApp communication is Annexure-P/11."
(Emphasis Supplied)
7. In para 9 of reply, the respondent/State pleaded as under:
**9- pj.k dzekad 5-7] 5-8] 5-9 ds laca/k esa mRrjnkrk dk dguk gS fd ;kfpdkdrkZ us ohfM;ksxzkQh dk dk;Z yksdlHkk fuokZpu 2019 esa pkj fo/kkulHkkvksa ds vUrxZr fd;k gS ,oa tSlh vko';drk yxh ml vuqlkj dk;Z ;kfpdkdrkZ us fd;k gSA ;kfpdkdrkZ dk bl pj.k esa ;g dguk fd mls nsjh ls lwpuk nh xbZ mUgh ds vuqlkj ;kfpdk esa yxk, x, vuqlyaXud dzekad ih&14 ,oa ih 15 ds izFke ist ds r`rh; iSjk ls Li"V gS fd ;kfpdkdrkZ dks fnukad 15-05-2019 dks ppkZ gsrq cqyk;k x;k Fkk vkSj mlls nj ds ckjs esa ppkZ dh xbZ Fkh vFkkZr ;kfpdk drkZ dks fnukad 15-05-2019 dks gh nj :i, 774@& dh tkudkjh Fkh blds vfrfjDr ;g Hkh fd ;g nj vkSj ns;d dk laca/k gSA ftldk laca/k yksdlHkk fuokZpu 2019 esa vkeaf=r dh xbZ njksa ls Hkh gS vkSj mls bl fufonk es Hkh lfEefyr gksuk Fkk] tks og ughas gq, vFkkZr mUgksus LoPN ,oa ikjn'khZ izfdz;k esa lfEefyr ugh gksrs gq, ekuuh; U;k;ky; }kjk fufonk izfdz;k lfEefyr gksus dh nh xbZ fycVhZ dk ykHk uk ysrs gq, vkSj fo/kku lHkk 2018 dh 'krkZ dk ikyu ugha djrs gq, lgh nj dh vis{kk vius ykHkdkjh nj :- 774@& dh vis{kk :- 1935@& dks ;kfpdk dk vk/kkj cuk;k gS tks fd vuqfpr gksus ls mldk ik= ;kfpdkdrkZ ugh gSA :- 1935 : 774 ls 774 $ 774 $ 387 = 1935 vFkkZr 150 izfr'kr vf/kd ¼<kbZ xq.kk½ gSA**
8. A plain reading of para 5.9 of petition clearly shows that the petitioner has pleaded with accuracy and precision that the order dated 15.05.2019 was communicated to him through WhatsApp for the first time on 20.05.2019. There is no clear denial of this specific pleadings in the reply. Indeed, the inference is sought to be drawn from the petitioner's communication dated 25.06.2019 (Annexure-P/14) that since the appellant attended a meeting with the respondent, he must have knowledge about the communication dated 15.05.2019.
4HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT APPEAL NO.251 OF 2021 (M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh)
9. A conjoint reading of para 5.9 of petition and its reply in para 9 shows that there is no specific denial of specific averments of the petition.
10. The Apex Court in the case of Smt. Naseem Bano vs State of Uttar Pradesh and Others reported in AIR 1993 SC 2592 has opined that if a fact is specifically pleaded and is not denied it must be treated as admitted.
11. By reading para 9 of the reply alongwith documents dated 25.06.2019 (Annexure-P/14), we are unable to hold that the reply of respondents can be treated to be a reply on the strength of which the aforesaid fact of getting information of order dated 15.05.2019 (Annexure-P/1) on 20.05.2019 can be treated to be a 'disputed question of fact'. In other words, the reply does not show that the communication dated 15.05.2019 was within the knowledge of petitioner before 20.05.2019. Thus, the appellant/petitioner is entitled to get the entire relief between 15.05.2019 to 23.05.2019 @ rate fixed by the respondent by communication dated 10.03.2019 (Annexure- P/6). To this extent, the order of learned Single Judge is set- aside. The respondent/State is directed to work out the payment between 15.05.2019 to 23.05.2019 on the basis of rate fixed on 10.03.2019 (Annexure-P/6) and make the payment to the appellant/petitioner within thirty days from the date of communication of this order.
12. We also find substance in the argument advanced by learned counsel for the appellant that in a contractual matter where parties jointly agreed to make payment in a certain way, 5 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT APPEAL NO.251 OF 2021 (M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh) rate of payment could not have been modified unilaterlly behind the back of petitioner. Thus, the order dated 15.05.2019 to the extent it operates against the petitioner in the matter of reduction of rate is set-aside. Resultantly, the appellant/petitioner shall get the payment on the basis of rate fixed on 10.03.2019 (Annexure-P/6) for the entire work done by him.
13. The writ appeal is allowed.
14. Certified copy as per Rules.
(SUJOY PAUL) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2021.03.31
15:11:58 +05'30'
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HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE WRIT APPEAL NO.251 OF 2021 (M/s. Rainbow Friends Video Vision vs The State of Madhya Pradesh)