Himachal Pradesh High Court
State Of Himachal Pradesh And Another vs Sh. Mohinder Singh And Another on 26 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 311 of 2009 Decided on: March 26, 2018
----------------------------------------------------------------------------- State of Himachal Pradesh and another .........Appellants .
Versus Sh. Mohinder Singh and another ....Respondents
----------------------------------------------------------------------------- Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1 Yes.
----------------------------------------------------------------------------- For the appellants Mr. Dinesh Thakur, Additional Advocate General.
For the respondents: Mr. Surinder Saklani, Advocate, for
r respondent No. 1.
Mr. I.S. Chandel, Advocate, for
respondent No. 2.
----------------------------------------------------------------------------- Sandeep Sharma, Judge(oral):
Instant Regular Second Appeal is directed against judgment and decree dated 9.1.2009 passed by learned Additional District Judge, Shimla, Himachal Pradesh in Civil Appeal No. 54-R/13 of 2007, affirming judgment and decree dated 3.9.2007 passed by learned Civil Judge (Senior Division), Shimla, Himachal Pradesh in Civil Suit RBT No. 83/1 of 05/2000, whereby suit for recovery having been filed by respondent No.1-plaintiff (hereinafter, 'plaintiff') came to be decreed.
2. Brief facts as emerge from the record are that plaintiff filed a suit for recovery of `4,48,720.50/- in the court of Civil 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 2Judge (Senior Division), Shimla, averring therein that the appellants-defendants No.1 and 2 constituted a Zonal Level Committee headed by officials of the Agriculture Department at the level of Block under National Watershed Development .
Programme, vide notification No. Agr.F(9)-2/92-Loose dated 19.12.1994. Vide aforesaid notification, respondent No.2- defendant No.3 (hereinafter, 'defendant No.3') was declared Team Leader qua aforesaid project by defendants No.1 and 2.
Defendant No.3 Dr. P.C. Syota invited quotations for agave bulbs, apple plants, almond plants etc. Plaintiff furnished rates in terms of quotations invited by defendant No.3 and supplied 2,53,000 agave plants, 1915 apple plants (spur type), 982 apple plants (Palty) and 2180 almond plants at the rates of `1/- ` 10, ` 3.50 and `5.50, respectively. Plaintiff supplied 66 kg of Dedonia seeds at the rate of `50/- per kg. Plaintiff claimed that aforesaid material was supplied by him pursuant to order placed by defendant No.3. Since defendants despite having received the material, failed to make payment, plaintiff was compelled to file the suit referred to herein above.
Defendants No.1 and 2 by way of filing a joint written statement admitted entire factum with regard to appointment of defendant No.3 as Team Leader to execute the work.
However, defendants claimed that no supply order was placed by defendants No.1 and 2. Defendants No.1 and 2 further claimed that defendant No.3 had no authority to invite ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 3 quotations and place supply order, as such, no payment is liable to be made to the plaintiff on account of supply, if any, made by him. Defendants further claimed that on inquiries, it also transpired that work done on the spot was not .
satisfactory as such they are not liable to make any payment.
Defendant No.3 by way of separate written statement admitted his appointment as Team Leader. He further admitted that he had placed the supply order. Defendant No.3 also admitted that he had received material from the plaintiff as has been mentioned in the plaint. Defendant No.3 further averred before the court below that plaintiff is entitled to payment as claimed by him in the suit save and except `55,000/-, which stands already paid to him. Defendant No.3 further stated before the court below that similar work was executed in Watershed Zone Bharech in Tehsil Kotkhai of Jubbal Block where one Shri Kewal Ram was Team Leader. Defendant No.3 met him on 27.6.2004 and ascertained from him about the manner and finalization of the bills. He came to know that even in Bharech Zone, no tenders/ quotations were called for nor pressed by defendant No.2, while passing the bills in respect of the execution of the work in the area. Bills of Bharech were approved. Defendant No. 3 further pleaded that withholding of bills of the similar work in Balghar Zone is illegal, wrong and arbitrary.
::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 43. On the basis of aforesaid claims and pleadings adduced on record by respective parties, learned trial Court framed following issues on 25.2.2004:
"1. Whether the plaintiff has supplied agave bulbs and .
Horticultural Plants to the defendants as per the allegations in the plaint? OPP
2. In case issue No.1 is proved in affirmative to what amount, if any, the plaintiff is entitled to against the defendants? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the suit is bad for non joinder of necessary parties, as alleged? OPD
5. Whether the suit is barred by limitation as alleged? OPD
6. Whether there was no written agreement between the parties with regard to supply of plants by the plaintiff to the defendants No.1 and 2, if so, its effect? OPD
7. Relief"
4. Subsequently, learned trial Court, vide judgment and decree dated 3.9.2007, decreed the suit of the plaintiff against the defendants for recovery of `2,36,377/- alongwith interest at the rate of 9% per annum from the date of supply of bills till filing of the suit and future interest at the rate of 6% per annum from the date of filing of the suit till realization of entire amount.
5. Being aggrieved and dissatisfied with aforesaid judgment and decree passed by learned trial Court, defendants filed an appeal before the learned Additional District Judge, Shimla, which subsequently came to be dismissed vide judgment and decree dated 9.1.2009, as a consequence of which, judgment ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 5 and decree passed by learned trial Court came to be upheld. In the aforesaid background, defendants No. 1 and 2 approached this Court in the instant proceedings, seeking therein dismissal of suit for recovery as filed by the plaintiff after .
setting aside judgments and decrees passed by both the learned Courts below.
6. This Court, on 11.11.2010, admitted the appeal on the following substantial questions of law:
"1. Whether in absence of any express supply order, agreement and contract between the parties and on account of unilateral act of one party, the second party can be held responsible?
2. Whether the Ld. Appellant Court below has misread and misconstrued the oral as well as documentary evidence on record?
3. Whether the present respondent No.1 who had supplied the material without any supply order/ agreement can maintain the present suit for recovery?
4. Whether the present respondent No.1 who had not done the work as per enquiry report can maintain the present suit for recovery?"
7. Mr. Dinesh Thakur, learned Additional Advocate General, argued that the impugned judgments and decrees passed by both the learned Courts below are result of misappreciation and misreading of the evidence, be it ocular or documentary, as such, are not sustainable in the eye of law.
He further argued that in the absence of any supply order or contract between the parties, the suit filed by the plaintiff was ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 6 not maintainable. He further argued that when work done by plaintiff was not to the satisfaction of the defendants, suit filed by him ought to have been dismissed. With the aforesaid submissions, he prayed that present appeal be allowed and .
suit filed by the plaintiff may be dismissed, after setting aside impugned judgments and decrees.
8. Mr. Surinder Saklani, learned counsel representing plaintiff, while supporting the judgments and decrees passed by both the learned Courts below argued that both the learned Courts below have correctly read the evidence and rightly decreed the suit of the plaintiff. He further argued that most of the averments made in the plaint have been admitted by all the defendants and in such eventuality, learned Courts below have rightly accepted the claim of the plaintiff and decreed his suit. Mr. Saklani, further argued that in view of the concurrent findings of facts and law recorded by both the learned Courts below, there is no scope of interference, whatsoever, by this Court. Mr. Saklani also placed reliance upon judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, in order to buttress his aforesaid argument. With the aforesaid submissions, learned counsel representing plaintiff prayed that there are no substantial questions of law in the appeal and same deserves to be dismissed by this Hon'ble Court.
::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 79. Having carefully read the text of the substantial questions of law framed at the time of admission of the appeal, this Court is of the view that except substantial question of law No.2, all other questions are pure questions of fact and same .
do not constitute any substantial question of law. Otherwise also, all the other substantial questions of law can be safely answered and dealt with by this court, while exploring answer to substantial question of law No.2 i.e. "Whether the Ld. Appellant Court below has misread and misconstrued the oral as well as documentary evidence on record?"
10. Having perused the pleadings and evidence led on record by the respective parties vis-à-vis impugned judgments and decrees passed by learned Courts below, this Court is not persuaded to agree with the contention of learned Additional Advocate General that learned Courts below have misread, misconstrued and misappreciated evidence, while decreeing the suit of the plaintiff for recovery. Bare perusal of evidence adduced on record by the plaintiff proves it beyond reasonable doubt that defendant No.3 was named as Team Leader to execute the work in question. It is also not in dispute that defendants No.1 and 2 with a view to execute the Watershed Project at Balghar, had authorized defendant No.3 to invite quotations and place supply order. Though defendants No.1 and 2 in their written statement, while fairly admitting that defendant No.3 was appointed as Team Leader to execute the ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 8 work, have denied that defendant No.3 had any authority to invite quotations or to place order, but there is no explanation rendered on record that in case defendant No.3 was not authorized to get the work executed, why payment of .
`55,000/- was released in favour of the plaintiff. Similarly, the Department has not rendered any explanation on record why in similar circumstances, payment was made in connection with work got done by Team Leader in Bharech Zone, where admittedly no tenders/ quotations were called for such type of work. Defendant No.3 has categorically admitted that he had placed supply order and pursuant to same, he had received material from the plaintiff as mentioned in the plaint. He has also admitted that the plaintiff was paid `55,000/- qua the supply made by him pursuant to supply order issued by him.
11. This Court finds from the record that though defendants No.1 and 2 have taken a stand that defendant No.3 was not authorized to place supply order but to substantiate their aforesaid claim, they have not placed on record any document suggestive of the fact that it was only defendants No. 1 and 2, who could place or issue supply orders. This Court finds considerable force in the argument of Mr. Surinder Saklani, learned counsel representing plaintiff that once it has been admitted by defendants No.1 and 2 that defendant No.3 was appointed as Team Leader to execute work, it does not lie in ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 9 the mouth of defendants No.1 and 2 to say that defendant No.3 was not authorized to invite quotations and place orders.
12. Leaving everything aside, there is no explanation rendered on record why part payment of `55,000/-was made .
to the plaintiff qua supply made by him, in case, he was not authorized by defendants No.1 and 2 to make such supplies.
13. Another argument having been raised by Mr. Dinesh Thakur, learned Additional Advocate General, that the work in question was not satisfactory, does not hold any ground because plaintiff had to only make supply in terms of supply/purchase order, whereafter execution, if any, on the spot was to be done either by defendants or any person authorized in this regard.
14. Now, it would be appropriate to deal with the specific objection raised by the learned counsel representing the plaintiff with regard to maintainability and jurisdiction of this Court, while examining the concurrent findings returned by both the Courts below. Mr. Surinder Saklani, invited the attention of this Court to the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others vs. Ranganath and Others, (2015)4 SCC 264, wherein the Hon'ble Supreme Court has held:
"16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for reappreciation of ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 10 evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our .
considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."
(p.269)
15. Perusal of the judgment, referred hereinabove, suggests that in exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. There can be no quarrel (dispute) with regard to aforesaid observation made by the Court and true it is that in normal circumstances High Courts, while exercising powers under Section 100 CPC, are restrained from re-
appreciating the evidence available on record, but as emerges from the case referred above, there is no complete bar for this Court to upset the concurrent findings of the Courts below, if the same appears to be perverse.
16. In this regard reliance is placed upon judgment passed by Hon'ble Apex Court in Sebastiao Luis Fernandes (Dead) through LRs and Others vs. K.V.P. Shastri (Dead) through LRs and Others, (2013)15 SCC 161 wherein the Court held:
::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 11"35. The learned counsel for the defendants relied on the judgment of this Court in Hero Vinoth v. Seshammal, (2006)5 SCC 545, wherein the principles relating to Section 100 of the CPC were summarized in para 24, which is extracted below : (SCC pp.555-56) "24. The principles relating to Section 100 CPC relevant .
for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of r law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
(iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
We have to place reliance on the afore-mentioned case to hold that the High Court has framed substantial questions of law as per Section 100 of the CPC, and there is no error in the judgment of the High Court in this regard and therefore, there is no need for this Court to interfere with the same."
::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 12(pp.174-175)
17. The Hon'ble Apex Court in Parminder Singh versus Gurpreet Singh, Civil Appeal No. 3612 of 2009, decided on 25.7.2017, has held as under:
.
"14) In our considered opinion, the findings recorded by the three courts on facts, which are based on appreciation of evidence undertaken by the three Courts, are essentially in the nature of concurrent findings of fact and, therefore, such findings are binding on this Court. Indeed, such findings were equally binding on the High Court while hearing the second appeal.
15) It is more so when these findings were neither found to be perverse to the extent that no judicial person could ever record such findings nor these findings were found to be against the evidence, nor against the pleadings and lastly, nor against any provision of law."
18. It is quite apparent from aforesaid exposition of law that concurrent findings of facts and law recorded by both the learned Courts below can not be interfered with unless same are found to be perverse to the extent that no judicial person could ever record such findings. In the case at hand, as has been discussed in detail, there is no perversity as such in the impugned judgments and decrees passed by learned Courts below, rather same are based upon correct appreciation of evidence as such, same deserve to be upheld.
19. This court after having carefully perused the evidence led on record by the respective parties sees substantial force in the arguments of Mr. Surinder Saklani, learned counsel representing the plaintiff that learned Courts below while decreeing the suit of the plaintiff dealt with each and every ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP 13 aspect of the matter meticulously and there is proper appreciation of the evidence by both the learned Courts below.
20. This court after having carefully gone through the evidence available on record, has no hesitation to conclude .
that both the learned Courts below have appreciated the evidence in its right perspective and there is no misappreciation of the evidence, as such, substantial question of law is answered accordingly.
21. Consequently, in view of discussion above, there is no merit in the appeal and same is dismissed. Judgments and decrees passed by both the learned Courts below are upheld.
Pending applications, if any, are disposed of. Interim directions, if any, are vacated.
(Sandeep Sharma) Judge March 26, 2018 (Vikrant) ::: Downloaded on - 28/03/2018 23:32:32 :::HCHP